'Joint Enterprise': Call for a review of the standard of evidence used to convict
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Since the 2016 Supreme Court R v Jogee ruling, over 100 prisoners have contacted JENGbA with the intention of appealing their conviction. Even with the removal of Parasitic Accessorial Liability (a dimension of ‘joint enterprise’) and ‘foresight’ as the sole indicator of fault, individuals convicted under the ‘assistance or encouragement’ dimension of joint enterprise are seeking to challenge their lengthy and unfair prison sentences.
This is because many of them have been convicted based upon an extremely poor standard of evidence. The Crown Prosecution Service guidelines and guidance from the Director of Public Prosecutions state that mere presence at the scene should not amount to ‘assistance or encouragement’. However, many people are finding themselves standing trial for murder for exactly this. Those who were not present at the scene are also facing trial, often based upon poor circumstantial evidence, such as that of a phone call whereby the content of the conversation is unknown but still speculated upon by the prosecution.
In both these scenarios, this poor evidence is being bolstered up by prosecution tactics that draw upon public, politicised, racialised, gendered, inaccurate and misunderstood discourses. These include narratives associated with ‘gangs’, ‘drill music’, ‘motherhood’, ‘drug use’ and more generally, ‘urban youth culture’. These narratives are used to indicate a ‘bad character’ of defendants.
We argue that these ‘bad character’ narratives are pivotal to many ‘joint enterprise’ convictions. The fact that these are adopted as prosecutorial mechanisms and are considered part of the evidence raises huge concerns. It highlights the huge disconnect between those working in the criminal justice system and those who are subject to its intervention. Such narratives cannot provide any proof of intent and, even if directed not to do so, we argue that these narratives tap into the emotion of the jury, allowing them to formulate their own opinion of defendants and lose sight of the actual facts of the case. We believe that the evidence used to prosecute for assistance or encouragement needs to be reviewed immediately to determine whether juries are being swayed by emotive and epistemologically flawed discourses.
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