The Company You Keep
Harry Stopes
The common law doctrine of joint enterprise allows for the conviction of ‘secondary parties’ to a crime committed by another, ‘principal’ offender. It can afford the courts a proper degree of subtlety: the getaway driver can be answerable for the bank robbery, not just a parking ticket. It’s a blunter instrument when the collective nature of the offence – joint enterprise is also known as ‘common purpose’ – is less clear.
It is disproportionately used to convict young Black men. The ‘gang’, that racialised folk devil, is often invoked to attribute blame for spontaneous violence by a small number of people to a much larger group. In a case in Moss Side in 2016, eleven young men were convicted of murder or manslaughter after a stabbing by one of them. An end to the joint enterprise doctrine is one of the recently published demands of the British chapter of Black Lives Matter.
The ways in which joint enterprise criminalises other populations have been less studied. Becky Clarke and Kathryn Chadwick, researchers at Manchester Metropolitan University, recently published a report into the criminalisation of women convicted under joint enterprise. Most of the ninety women in the study were convicted of violent offences: murder, manslaughter and attempted murder account for almost three-quarters of the convictions.
Yet, where the researchers had access to sufficient court or media documents to determine the details of events, only 10 per cent of the women had been involved in some kind of physical altercation with the victim, and even then it was mostly a ‘push’, ‘shove’ or ‘slap’. In no case did the women use a deadly weapon such as a knife or bottle.
As with joint enterprise convictions of men, the women in the study were overwhelmingly young; four out of ten were under 25, and three-quarters under 35. The youngest, whom the researchers call Anya, was 13. (No one is referred to by their real name.) Like other young people caught up in the criminal justice system, she found the process confusing and scary. ‘I didn’t know what was happening,’ she told the researchers. ‘I couldn’t hear or understand and no one explained or advised me.’
Carrie, a 15-year-old child, was walking home with her boyfriend, her mother and her mother’s boyfriend when they got into a fight with ‘another group of local young adults who had also been drinking’. Carrie’s face was cut with a broken bottle. Her mother’s boyfriend killed another man. ‘We know that a bottle caused the fatal wound,’ the judge told the jury in his summing up. ‘We know who caused the fatal wound because [he] admitted it.’ Carrie was ‘so drunk she did not have the ability to join in a fight’. She was convicted of manslaughter.
Around half the women reported that domestic violence was a feature of their daily lives at the time of the alleged offence. For most of them, the perpetrator of that violence was their co-defendant. Many others reported prior experiences of violence or abuse. They have been repeatedly failed by social services, local authorities and the police. During her teens, Jenna was targeted for exploitation by older men, and raped several times. Her parents describe the police attitude to her reports of abuse as ‘box-ticking’. ‘She was never taken seriously by the police,’ her mother told the audience at a Zoom event when the report was launched. ‘I was desperate for help, and we were let down on every level.’
‘Prosecution strategies actively de-contextualise events from the impact of women’s experiences of violence or abuse,’ Clarke and Chadwick write. Jenna told the researchers that her abuse ‘was used by the prosecution to paint a bad picture of me’. In the prosecution’s opening arguments, a reference to her ‘difficult adolescence, including sexual exploitation’, was sandwiched between her ‘living a gypsy lifestyle’ and being a ‘regular drug user’.
Gendered ‘myths and stereotypes still pervade the courts,’ as Helena Kennedy writes in Misjustice: How British Law Is Failing Women (2019). Defence lawyers may not respect or trust their clients. ‘No mention of his violence, the domestic violence to me,’ Savannah told Clarke and Chadwick. ‘The QC said it would affect my case … I was disgusted I sat in the same dock as the man who hurt my daughter.’ The women are ‘victims both of an injustice’, Julie Bindel wrote in a discussion of the study in the Spectator, ‘and of the men that manipulate, coerce and threaten them to collude or provide an alibi’.
It is striking, Clarke and Chadwick point out, how often women defendants play a central role in the prosecution’s narrative of the case, allegedly provoking the violence despite their peripheral hand in its execution. Sexual relationships with the principal defendant are often mentioned, with references to a ‘honey trap’, an ‘infatuated girlfriend’ or her ‘blind loyalty’. ‘You realised the impact of sexual allegations on the behaviour of [your co-defendant] and that you could use such allegations to manipulate him to act violently,’ a judge said to Lucy in his sentencing remarks. ‘My role in the crime was deemed to be as this woman full of hate who somehow managed to convince everyone to end up fighting,’ Willow told the researchers. ‘The focus was on me and the fact I was a woman.’
The misogyny of the judge who condemns the ‘feckless mother’ of ‘unfortunate children’ who will ‘mercifully not be burdened with you for their upbringing’ draws on prejudices about age, race and class as well as gender. ‘What emerges as central to prosecution strategies in these cases,’ Clarke and Chadwick write, ‘is the combining of such arguments with a wider narrative around “bad character”.’ References to ‘lifestyle’ are persistent, alongside sexual life, partners, sexual jealousy, addiction or sex work. Media accounts, though they generally follow rather than precede a conviction, feed a well of images and stereotypes on which future cases draw. ‘Crack addict prostitute guilty of murdering rich client,’ runs a typical headline.
The criminal justice system does not operate on the basis of simple principles of fairness. Such an observation can be framed in academic terms, as when Anette Ballinger identifies ‘the state’s role in the production and reproduction of the gendered social order’, but it can be expressed more plainly, too. John Crilly, a former joint enterprise prisoner, made this connection the first time I interviewed him. ‘I was just a drug-addict in the dock,’ he told me as we sat in the sunshine on Quay Street in Manchester in the summer of 2018. ‘Like the Black kids and the gang’, people think that ‘a junkie is just a dirty bastard who’s got no morals. It just seems that in the criminal court you’re labelled as soon as you’re stood in the dock.’
Comments
I agree that joint enterprise is a bad legal doctrine, but the reasons against it presented here are weak. It is bad because the person who is involved alongside has not committed the same deed as the actual killer, so the law is based on a lie. Better than this vague catch-all would be to have separate offences of provocation or incitement, with their own clearly stated requirements for proof. But no special bias against women has been demonstrated here. Joint enterprise is a 'legal fiction', a lie, that affects male defendants just as much, and very probably more.
The current effort to have even the few women who currently go through the criminal justice system removed from it is transparently a ploy for privileged special treatment. The vast majority in our overcrowded prisons are men, and it is imprisonment generally (i.e. mainly of men) which is excessive and needs to be cut.
The paragraph in which those judge's remarks are quoted is about the consistent centrality of women in these narratives, as purported catalysts of violence, "despite their peripheral hand in its execution." I'm not trying to paint a 'picture of innocence,' a problematic binary category I tend to reject, but one of peripherality - which is demonstrated quantitatively in the report I cite.
I agree with you that a seperate offence of incitement might be appropriate in some cases, or simply for the CPS to follow its own guidelines around the risk of overcharging. (My reading of the judge's summing up in the case of Carrie was that he thought she should never have faced the charge she did, though here I am speculating.) I agree with your description of what makes joint enterprise bad, and I'm puzzled as to why you think I wouldn't.
As I begin the article by noting, disproportionality around joint enterprise is most visible when it comes to young black men, a subject on which I've written at length elsewhere. My claim in this article is not that women are the only victims, but rather that when the criminal justice system targets certain people it calls upon an interlocking (or in a nod to Kimberle Crenshaw, we might say 'intersecting') set of stereotypes and categories of identity and (un)belonging which include gender alongside race, class, citizenship, sexuality, occupation, addiction and more. John Crilly, a male former prisoner who I've also previously written about and whom I quote in the final paragraph, articulated a similar recognition in calling for solidarity across the various lines of social division. A call which I would hope readers would echo.