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Welcome to the Oxford Undergraduate Law Podcast, where we discuss the law and its relationship

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with society.

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I'm Juliette.

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And I'm Rach and we are your podcast editors.

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We will platform academics, practitioners and experts from different backgrounds on this

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podcast.

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In today's episode, I will be speaking to Nisha Waller.

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Nisha is a final year PhD candidate in the Centre for Criminology at the University of

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Oxford and is a researcher at charity law practice, Appeal.

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Nisha's PhD research focuses on complicity law, commonly referred to as joint enterprise,

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and its relationship to the criminalisation of young black men.

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Over the course of her doctorate, Nisha has visited a number of prisons in England, interviewing

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young black men convicted as secondary parties to murder.

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Her research is also informed by interviews with legal practitioners and the families

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of those convicted.

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As a starting point, could you tell us a bit about what complicity law and joint enterprise

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refer to?

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Yeah, so joint enterprise is an umbrella term for multiple ways in which more than one person

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can be convicted of the same offence.

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So this can be broken down into three categories.

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So there could be joint participation, where more than one person physically carries out

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the conduct and actually carries out the offence.

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And those people would be known as co-principles or joint principles.

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Where it gets somewhat more complicated or controversial is when people who don't carry

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out the conduct element of the offence can also be held liable or deemed complicit.

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So you have what's sometimes referred to as basic accessorial liability, which refers

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to people who have intentionally assisted or encouraged the offence, sometimes referred

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to as aiding or abetting.

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And then you have something which was dealt with in 2016 and no longer exists in this

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way, which is parasitic accessorial liability.

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I wanted to pick up on that decision in the 2016 case, the case called Jogee.

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Could you tell us a bit about what the law looked like pre-Jogee and what catalyzed the

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need for change?

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Yeah, so the law prior to the Jogee ruling meant that an individual could be convicted

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on the basis of foresight.

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So if the jury believed that the defendant, although they didn't carry out the crime themselves,

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could have or foresaw the possibility that their co-defendant, the principal, might carry

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out that crime or would carry out that crime, the jury could also find them guilty.

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So the secondary party or the accessory could be convicted on the basis of foresight and

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not intent, so they didn't have to intend for that crime to take place.

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And that typically occurred in cases like the parasitic accessorial liability where

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there was crime A and crime B. So the argument of the prosecutor would be you could have

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foreseen that in the course of a burglary, your co-defendant might kill somebody if

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they were within the premises, for example.

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That foresight as a reason of fault was also used in cases that were more basic accessorial

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liability cases, so there wasn't crime A, crime B. So foresight basically became the

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standard in complicity cases and it was applied in that way for 30-ish years, which yeah,

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and Jogee dealt with that by changing the standard of fault from foresight to intent.

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So now we just have basic accessorial liability where the secondary party has to intend to

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assist or encourage the crime.

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So what made the standard being foresight rather than intent so problematic and why

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did so many people advocate for this to be changed in the law?

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It's arguably the lowest fault standard that there has been in criminal law to be held

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liable for things like murder on the basis of your probable foresight.

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How do you judge whether somebody could foresee somebody else's actions or not?

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And so the key problem there as well was that the secondary party could be convicted based

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on foresight, but the principal, the person who carried out the crime, had to intend to

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carry out the crime, which also made not much sense at all.

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So yeah, huge injustices resulting from that and lots of people obviously have been campaigning

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for a long time before that, most notably Jenga, Joint Enterprise Not Guilty by Association,

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who campaigned tirelessly leading up to that judgment.

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And has Jogee been considered a successful case in terms of the changes that it brought

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about or are there some persisting issues that still need to be addressed?

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Yeah, so what's really just sad about that is that lots of people saw it as a success

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and lots of people thought, you know, my family members coming home or people in prison thought

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that maybe I'm going home.

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I mean, the law was incorrectly applied in their case, yet all but one of those people

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are either still behind bars serving what's often a life sentence or they've completed

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their sentence and haven't been released as a result of Jogee or even had their cases heard

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at the Court of Appeal.

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So that's the reason for that in short.

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The law ultimately states that even though there's been a change in law, an individual

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has to prove that had the law been correctly applied in their trial, so the judge had the

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judge given the direction of intent rather than foresight, that the jury wouldn't have

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found them guilty.

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But it's almost impossible to make that judgment without a retrial.

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How do you come to that conclusion without a retrial?

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And so it's a really high bar to me and it's only been met once in the case of John Crilley.

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And so, yeah, we have potentially thousands of people still behind bars who were convicted

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under a law that has now been said to have been incorrect.

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And so looking at what Jogee actually sets out in terms of the test for contribution,

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it's as you said, intention.

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But a lot of people have spoken about how this still is very unclear in reality and

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that has kind of given the prosecution opportunity to adopt a very wide conception of complicity

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or joint enterprise.

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So how have you seen this play out in practice?

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Yeah, so this is another problem with the law and something that Jogee didn't address

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is that the issues that are similar to pre-Jogee continue because the law is so vague even

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now.

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So we have, although you have to intend to assist or encourage an offence now, which

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is, I guess, a higher fault standard, assistance and encouragement isn't properly defined in

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law in that somebody's presence, although it has to be deemed as supportive in some

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way, can be enough physical conduct to convict somebody of an offence that was carried out

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by somebody else.

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So I've interviewed lots of young men who are now serving life sentences convicted

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to serve a time in custody that's longer than they've been alive, many of them are 16 and

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a couple younger, who were literally just at the scene when it occurred and others who

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weren't even at the scene but had a series of phone calls of which the content of that

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phone call is actually unknown but which the prosecution argued was them involved in the

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planning of the offence and therefore encouraging or assisting it in some way.

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And so the main problem with that, in addition to the fact that assistance and encouragement

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is so vague and not properly defined, we also have that there's no requirement that the

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secondary party makes any substantial contribution to the offence and so these are two interconnected

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issues.

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By substantial contribution, I mean there's no requirement that there is any kind of direct

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actual influence of that secondary party's conduct on the principal offender's behaviour,

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so they don't need to cause the principal offender to carry out the crime in any way,

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so they don't even have to make it much more likely that it actually happens.

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And that kind of contradicts the very terms of assistance and encouragement, right, you

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think of encouragement, you think you're having an effect on something, you're encouraging

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something but the law doesn't really require there to be any significant effect on the

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principal's conduct from the secondary party for them to be liable.

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Do you have any examples of things that you've seen in your experience from your recent that

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you found really shocking to you that that amounts to assistance or encouragement by

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law?

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Yeah, loads, it's hard to pinpoint now because you've asked me to be specific but every time

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I've interviewed people, the majority of the time I've been surprised as to how their conduct

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met a standard of assistance or encouragement.

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I'll try to think of a specific case that I can draw on.

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Yeah, so I can speak about a specific case of a young man, he was sat in the back of

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a car, I interviewed him and his co-defendant and his co-defendant was driving the car

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and now this car didn't have any, nobody in this car carried out the events, there was

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another car that they were travelling with.

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In the other car, the other car had stopped as they had seen somebody coming out of the

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housing estate and people had got out of the other car and chased these people back into

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the housing estate which resulted in a fatality.

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So the guy that I interviewed and his co-defendant remained in the other vehicle and the really

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sad thing about this one was because the guy in the back of the car that wasn't involved

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said he was asleep in the back of the car and he said he'd smoked some weed and he was

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falling asleep on the journey that they were taking and I then interviewed his co-defendant

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who said, you know, my friend was convicted of murder for sleeping in the back of my car

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and when he said that I was just like, well, you know, I know that this happens obviously

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through the work that I do but it's like when it's said, it's put to you like that from

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two different people, yeah, it just goes to show that you can, it's quite easy to end

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up in a situation where you're facing a life sentence and in no way did he contribute,

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he wasn't driving, he was in the back of a car, in no way, even if he wasn't asleep as

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the prosecution would claimed, he did not contribute to the offence in any way.

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So there seems to be such a low standard despite the changes that were made in Jogee.

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What do the prosecution kind of propose as a justification for this?

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Are there some kind of cases that they outline or look, this is why we're doing that, this

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justifies the law, being like this and how does that actually map onto the reality that

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you and others have seen?

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Yeah, I think, I mean, it's possible, it's possible to concede that somebody who's present

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at the scene of a crime was there for the purpose of encouraging it, right?

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What you do with those people, I don't think is a life sentence in prison but my problem

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is how on earth do you prove that beyond reasonable doubt that they were there for that purpose

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unless there is direct evidence of their purpose for being in that place was to carry out violence?

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And that's where prosecution case theory becomes really important to them because they rely

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often quite heavily on their case theory.

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Because the law is so vague, it brings people into the scope of prosecution who haven't

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done very much and therefore where there's very often limited circumstantial evidence

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against them and the prosecution therefore have to rely on their case theory which is

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often, you know, they're all part of a gang therefore they all have the same intention

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and that's why these cases are so racialised because the gang is, as you know, a stereotype

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that is often applied to young black men who are assumed to be gang members.

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Yeah, I'd like to focus a bit more on that because this is what you're doing your research

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on and you've spoken before about how this gang narrative is being used as kind of a

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conviction maximising prosecution strategy.

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So could you speak a bit more about what that means and from speaking not only to people

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who have been, you know, criminalised but also speaking to practitioners, what are some

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of the things that you've heard?

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Yeah, so one of my key arguments is that the gang as a narrative in the courtroom functions

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in some cases to address weaknesses in the prosecution's case which come from the vagueness

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of the law so the fact that the law allows people to be prosecuted who haven't done very

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much, I'd argue that that means prosecutors need to rely more heavily on their case theory

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to convince the jury that, you know, a person who merely was just at the scene or in a car

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at the scene was intending to assist or encourage the principal because the gang immediately

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evokes notions of criminality, notions of collective criminality but what I go into much more detail

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in my research thesis which speaks to the multiple ways in which the gang functions

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in the courtroom and what it actually does to get to construct the intent of the secondary

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party and so there are four ways that I say that it does that.

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I say that it does it through establishing a sort of contextual backdrop and shared motive

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for the offence, so kind of weaving a logical thread between the crime and the defendants

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by saying look they have a collective motive because this is their rival and therefore

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they all irrespective of their level of physical conduct wanted and intended for that crime

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to take place.

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It also helps the prosecution to assume or argue that there was shared knowledge between

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the defendants so if you're a gang of course you knew, you must have known he was carrying

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a knife, you must have known of his intention to carry out this crime.

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Third, it constructs a criminal character of the defendant immediately by invoking that

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notion of the gang which then portrays an individual who is not only willing but capable

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of intentionally assisting or encouraging serious violence.

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And lastly, which is a bit more of a complex argument but I'd argue that it constructs

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a state of almost sort of near permanent premeditation or conditional, permanent conditional intent

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so kind of voiding any notion that the violence was spontaneous or that the individual was

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just merely present, they were, they were always acting in a supportive capacity because

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they're part of that gang so I'll give you an example.

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There was a young man, I'll call him Shaquille for anonymity reasons that I interviewed and

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his case involved, it was him and his co-defendant, they were both in his word chilling on the

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block during the day and they were approached by two other young people with knives.

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Now that was accepted by the prosecution that they were approached by two young people with

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knives.

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Shaquille didn't have a knife on him but his co-defendant had a knife and Shaquille and

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his co-defendant obviously fought back and that led to a fatality so Shaquille's co-defendant

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caused the fatality and Shaquille and his co-defendant despite being approached first

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by other people, self-defence wasn't accepted as a defence and they were charged with murder,

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not even manslaughter, they were charged with murder.

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Huge issues with that but the jury found Shaquille guilty of manslaughter which goes to show

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that he probably should have at the very most been charged with manslaughter which I can't

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even agree with but it goes to show how, because during that case the prosecution argued that

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he wasn't just chilling on the block innocently, he was chilling on the block expecting the

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arrival of his rivals, expecting his rivals to appear because that's what he did on a

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day-to-day basis.

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So they invoked this notion of gangs and rivalry to suggest that it wasn't spontaneous, you

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weren't just attacked, you know that that's your purpose for chilling on the block is

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to wait for your rivals to appear.

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So just by merely existing in his friend's neighbourhood and that happening to him, the

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prosecution invoked that he was, you know, these were two gangs that had ongoing rivalries

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and therefore it can't be spontaneous, you're always willing to act in a supportive capacity

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should violence erupt in this way.

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It seems almost as if it's portraying these young people as being predisposed to violence

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in some kind of way, in some distinct way.

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So can you speak a bit more about what specific appeals, what specific examples or evidence

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will be used by the prosecution?

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Yeah, to go back to that case, one thing that was used in that case was reference to music

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lyrics that were on one of the defendant's phones.

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Now actually what's really interesting in that case is that the judge didn't allow the

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lyrics in, he didn't allow in the actual lyrics but he allowed the prosecution to let the

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jury know that there were violent lyrics on their phone, like rap lyrics.

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And rap music, or drill specifically, drill music, features heavily in many of these cases

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as an indicator of gang ties or gang affiliation.

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Often people who are just merely in a music video, not actually rapping themselves, are

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sort of accused of having gang ties or gang affiliations because they're in these videos.

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And yeah, ultimately in the courtroom, music, well drill and rap, although it's an art form,

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is often taken at face value and you have prosecutors arguing that there are almost

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confessions within music and are often ignorant to the violent conventions of drill because

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drill music, it's conventional for lyrics to be violent, right?

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You'll have lyrics that are likely to reflect a violent incident that takes place on the

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streets but those lyrics are reused.

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You'll see lyrics that look pretty much the same in all different drill tracks, right?

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There was another guy, I'll call him Simeon, that I interviewed, he had his drill lyrics

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used at his trial as part of the prosecution's claim that his drill music group was a gang.

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And the prosecutor admitted that he had attempted to adduce lyrics that said something along

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the lines of a hop out the whip and stab him, something like that.

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And that is literally what happened in his case, right?

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Somebody got out of the car, not him, he was inside the car and stabbed a person.

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But it turned out these lyrics were written two years prior to the incident.

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So it just goes to show how easy it is to attach drill lyrics to an actual violent incident

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and claim that they are referencing that incident.

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So yeah, I'd say prosecutors and judges are not awake enough to the conventions of drill

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music and the fact that it does rely on persona, exaggeration, myth-making and it's an art

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form, it's just not given legitimacy in the same way as other art forms in my view because

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it's a black musical genre.

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So how is it even that the prosecution is able to get their hands on this information

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or why do they rely on music to build a case against defendants?

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Yeah, there is increasingly more consciousness amongst lawyers and I think judges as well

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as to the kind of prejudicial nature of this type of evidence, particularly music, drill

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music.

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But it's still happening.

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And we need to think about the broader picture, broader policy because that's the reason it's

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coming in.

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That's the reason the police are presenting it to the prosecution, to the CPS as part

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of their package of evidence.

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Serious violence amongst young people.

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We never really look at the structural root causes of it and sadly instead we often blame

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things like culture because it's a scapegoat for government.

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The government haven't got to do anything about austerity or the closure of youth services,

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the cuts to funding for youth services and so they blame gangs, I say that quickly, and

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they blame drill.

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And so what we've seen over the last few years is the kind of proliferation of initiatives

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in policing that focus on monitoring young people's social media and specifically YouTube

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and drill music videos.

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They now have officers known as trusted flaggers who kind of flag drill music videos to get

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them removed from YouTube and other platforms.

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But also they now have specific operations.

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They've got an operation called, well a project called Project Alpha, which is a Met Police

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project that received a significant amount of home office funding launched in 2019, where

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it's ultimately a unit of officers who scour social media for things like this.

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And what's happening is they're just collating lots of data on predominantly young black

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men that can later be used as evidence in a prosecution case.

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In that they have another operation, Operation Domain, which is a Met Police catalogue of

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what they say is gang related drill music, gang related music.

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And I think they claim not to be keeping this as potential evidence, but ultimately it's

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led to I think many, many records that have actually been used in criminal trials.

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And they also have Project Insight, which trains officers to give evidence on gangs

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and drill music.

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And I've heard anecdotally from colleagues that work in the courts that this is a kind

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of very short, less than a week's course that these officers go on.

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I'm not sure if that's directly linked to Project Insight, but I've heard from barristers

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in court who have said, you know, officers giving evidence have said they've been on

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a week long course and now are giving expert evidence on drill music and decoding it.

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And yeah, it's really problematic because the police ultimately are, like policing black,

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young black men is almost become embedded into policy just because there's this policy

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shift towards holding drill accountable for serious violence.

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And as we know, it's predominantly young black men who are involved in producing or who are

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the artists and therefore they are facing the consequences.

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And in some cases, you know, life completely life altering consequences as a result of

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that.

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And in that policing contributes hugely to the prosecution's ability to present this

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gang narrative at trial because every contact with the police leaves a trace.

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And we know that young black men are more likely to encounter the police through stop

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and search and other measures.

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And the recent Casey review literally acknowledged that every contact with the police leaves

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a trace.

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Every contact is documented and the police build their intelligence through stop and

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searches.

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And so you have some of the young men when I was talking to them were so shocked when

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a police officer got on the stand and said, look, this is such and such pointing at the

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defendant pointing at him saying, I've known him for X amount of years.

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He's from this area, which is affiliated with this such and such gang.

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And he is known to the gang's unit.

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And they're shocked because they're like, this isn't me you're describing.

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How do you even know me?

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I've never seen you in my life.

305
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And so black communities have almost been turned into states of surveillance because

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of this policy focus on gangs and because gangs have been identified as a particular

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problem in black communities.

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But the statistics don't match up.

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So it's important to note that, for example, on the Metropolitan Police's gang's matrix,

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which has now been ruled unlawful, 80% of the people on it were black.

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But that's 80% of serious youth violence wasn't carried out by black people.

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So there's a huge mismatch there.

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And serious violence has become so racialized that it's almost seen as an explicitly black

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issue.

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And therefore, black communities are bearing the brunt of gangs policing and anything to

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do with offenses that involve knives.

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So every initiative that is designed to curtail gangs or knife-related violence are going

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to disproportionately impact young black men, irrespective of whether they are involved

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in any criminal activity.

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It seems that going back to even addressing the problems of joint enterprise, from what

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00:27:48,800 --> 00:27:51,920
you've been speaking out, it seems that it can't just be approached through looking at

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the law on paper, making some changes, expanding a test, or even making that more clear.

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It seems that there need to be much wider changes in terms of law and policing in general.

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So what are some things that you have heard, some proposals for change that is necessary

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on a wide scale, as well as in a narrower scale in the joint enterprise context?

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Changing the law could help to some degree, right?

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So we could narrow the law and we could set a reasonable test for contribution.

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And I think that would force prosecutors to be more specific about who did what.

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It would make them less able to rely on their case theory as heavily.

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They'd actually have to specify what each individual did and how they contributed to

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the offense for them to get over their burden of proof, which I think might help, might

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limit the use of gang evidence or its impact, because the bar for bringing somebody into

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the scope of prosecution would be narrower.

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However, the joint enterprise is just one element of our criminal justice system in

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which systemic racism manifests.

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And so it's much, much bigger than the joint enterprise.

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I think we need to start reframing violence.

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One of the reasons why joint enterprise is applied in such a disproportionate way is

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because, as I previously said, violence is looked at as a...

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Violence amongst young people in particular is looked at through the lens of race.

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And we don't talk about other forms of violence.

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00:29:33,880 --> 00:29:39,800
So for example, we've had knife crime, which has been, you know, almost becomes synonymous

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00:29:39,800 --> 00:29:46,560
with the notion of gangs and looked at through the lens of race.

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Yet knives are the most commonly used weapon in intimate partner homicides.

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However, knife crime, if you want to call it that, has only become a subject of public

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00:29:59,680 --> 00:30:05,800
concern and political outrage when it involves young black people on the street.

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It's not become agendered.

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00:30:06,800 --> 00:30:11,440
There's no moral panic about it being agendered, a phenomenon around domestic violence, even

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though it is the most commonly used weapon in domestic violence cases.

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And so we've almost invisibilized certain forms of violence because society is so focused

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on violence as a race problem.

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And we also don't talk about state violence in these discussions.

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We don't talk about violence carried out by the state.

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And so I think we require a whole shift in society's thinking around violence and what

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00:30:38,800 --> 00:30:44,080
that looks like and harm and what that looks like and how we respond to it.

356
00:30:44,080 --> 00:30:46,560
Why are we responding to harm with more harm?

357
00:30:46,560 --> 00:30:52,720
You know, like with harm that is like we're putting...

358
00:30:52,720 --> 00:30:55,840
I'll talk about a case briefly, but it's not a joint enterprise case.

359
00:30:55,840 --> 00:31:00,280
It's a conspiracy to murder case, but it has all the hallmarks of prosecution case theory

360
00:31:00,280 --> 00:31:02,240
in a joint enterprise case.

361
00:31:02,240 --> 00:31:06,240
There were 10 boys convicted in Manchester of conspiracy to murder and conspiracy to

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00:31:06,240 --> 00:31:10,640
GBH on the basis largely of a group chat.

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00:31:10,640 --> 00:31:18,600
So no murder was carried out and they were grieving the loss of their friend who was

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00:31:18,600 --> 00:31:20,080
murdered.

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00:31:20,080 --> 00:31:27,240
And in this chat, there was references made to what the prosecution claim was chats about

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00:31:27,240 --> 00:31:29,880
getting revenge.

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00:31:29,880 --> 00:31:39,720
And despite the large majority of them not carrying out any harm at all, they were given

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00:31:39,720 --> 00:31:42,360
a sentence of combined...

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00:31:42,360 --> 00:31:47,160
I don't know off the top of my head, but it's over a hundred years.

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00:31:47,160 --> 00:31:55,320
And so we're responding to young people who have experienced some of the most traumatic

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00:31:55,320 --> 00:32:04,760
things like losing a friend with more harm, you know, even in cases where nobody died,

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00:32:04,760 --> 00:32:05,760
you know.

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00:32:05,760 --> 00:32:07,920
Where is the good in that?

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00:32:07,920 --> 00:32:09,960
Like what are we trying to achieve?

375
00:32:09,960 --> 00:32:10,960
We are...

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00:32:10,960 --> 00:32:16,000
I was with my friend who's a barrister the other day and I asked her to tell me what

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00:32:16,000 --> 00:32:23,320
a Casey senior barrister would get on a typical case, like a murder case, like a joint enterprise

378
00:32:23,320 --> 00:32:29,360
case for a trial that's about, you know, six, seven weeks long, something like as lots of

379
00:32:29,360 --> 00:32:30,360
these are.

380
00:32:30,360 --> 00:32:34,920
And it was about 80,000 pounds.

381
00:32:34,920 --> 00:32:35,920
That's one Casey.

382
00:32:35,920 --> 00:32:46,000
So if you've got 10 defendants, they each have a Casey, a junior barrister and solicitor

383
00:32:46,000 --> 00:32:49,120
and then you've got the prosecution.

384
00:32:49,120 --> 00:32:52,680
I can't even figure out how much money is, but it's millions, you know, it ends up being

385
00:32:52,680 --> 00:32:54,040
millions what's going into that.

386
00:32:54,040 --> 00:32:57,920
And they're all remanded in custody for the time of their trial.

387
00:32:57,920 --> 00:33:00,320
What does it cost to keep somebody in prison for a year?

388
00:33:00,320 --> 00:33:01,480
Hundreds of thousands.

389
00:33:01,480 --> 00:33:14,160
So it's unfathomable how we can justify responding to people who haven't carried out any violence

390
00:33:14,160 --> 00:33:20,560
in this way when that money could be diverted into youth services who could respond to the

391
00:33:20,560 --> 00:33:25,560
harm that happened in the first place, particularly in the case of the 10 boys in Manchester.

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00:33:25,560 --> 00:33:27,320
It makes absolutely no sense.

393
00:33:27,320 --> 00:33:32,920
By your question, I was wondering if you could speak a bit about what you think from your

394
00:33:32,920 --> 00:33:39,320
experience speaking to people criminalized under joint enterprise, what accountability

395
00:33:39,320 --> 00:33:44,760
and responsibility actually looks like and what it should look like as interpreted by

396
00:33:44,760 --> 00:33:45,760
the law.

397
00:33:45,760 --> 00:33:50,520
Yeah, I think firstly, I should say that I think there are a lot of people in prison

398
00:33:50,520 --> 00:33:57,080
right now who are not responsible at all, who are convicted as a second party under

399
00:33:57,080 --> 00:33:59,240
joint enterprise.

400
00:33:59,240 --> 00:34:04,000
And I think that's because of the vagueness of the law, firstly, so it allows people to

401
00:34:04,000 --> 00:34:10,640
be prosecuted who actually aren't responsible in some cases.

402
00:34:10,640 --> 00:34:15,320
And look, I do get some people, I have had some people say to me, you know, okay, I think

403
00:34:15,320 --> 00:34:23,440
I take responsibility for doing this, but I didn't intend for the person to carry out

404
00:34:23,440 --> 00:34:27,360
murder or any serious harm.

405
00:34:27,360 --> 00:34:34,480
And so for example, there's a young guy who I'll call Ryan, who went to the scene because

406
00:34:34,480 --> 00:34:39,560
he knew there was going to be a fight and he didn't think it was going to escalate.

407
00:34:39,560 --> 00:34:43,640
And at the point that the knife was pulled, he was actually on the floor as he had been

408
00:34:43,640 --> 00:34:48,360
pushed over and didn't witness the stabbing take place.

409
00:34:48,360 --> 00:34:50,200
But he took some responsibility for it.

410
00:34:50,200 --> 00:34:55,120
He took some responsibility for what happened, but he sat doing a life sentence when he didn't

411
00:34:55,120 --> 00:34:59,400
intend for anyone to be seriously injured or to die.

412
00:34:59,400 --> 00:35:05,760
And so the sentences are so disproportionate to what the person's actually done and intended

413
00:35:05,760 --> 00:35:08,120
to happen.

414
00:35:08,120 --> 00:35:11,640
They are, if they are convicted of murder under joint enterprise, they will receive

415
00:35:11,640 --> 00:35:12,640
a life sentence.

416
00:35:12,640 --> 00:35:17,440
And as I said at the beginning, a lot of them are convicted for a time in custody that's

417
00:35:17,440 --> 00:35:21,880
longer than they've been on the planet, which to me is absolutely absurd for somebody who's

418
00:35:21,880 --> 00:35:25,360
not carried out violence.

419
00:35:25,360 --> 00:35:29,480
I could argue that it's absurd to put any young person in prison for that long, irrespective

420
00:35:29,480 --> 00:35:30,480
of what they've done.

421
00:35:30,480 --> 00:35:33,520
It doesn't solve anything.

422
00:35:33,520 --> 00:35:38,600
And I think we need to have a more restorative justice approach to how we respond to harm

423
00:35:38,600 --> 00:35:45,080
in this way and kind of people, those who are harmed by crime and those responsible

424
00:35:45,080 --> 00:35:53,880
for the harm and support them in repairing that harm, communicating, but involving everyone

425
00:35:53,880 --> 00:35:55,800
affected in that process.

426
00:35:55,800 --> 00:36:01,160
And I think it's almost become alien to us to think about responding to harm or crime

427
00:36:01,160 --> 00:36:08,920
in that way because our justice system just doesn't embody those principles at all.

428
00:36:08,920 --> 00:36:12,160
And it's interesting because some of the young people in their families that I've spoken

429
00:36:12,160 --> 00:36:16,960
to who are convicted under drug enterprise have said that the victim's family have approached

430
00:36:16,960 --> 00:36:20,600
them and said, you know, look, I know it wasn't your son and have expressed sympathy.

431
00:36:20,600 --> 00:36:22,320
And this doesn't happen in all cases.

432
00:36:22,320 --> 00:36:28,920
In a lot of cases, the victim's family do want all of the defendants to be convicted,

433
00:36:28,920 --> 00:36:36,400
but it has happened because they recognize that in some cases it could have been their

434
00:36:36,400 --> 00:36:37,400
son on the other side.

435
00:36:37,400 --> 00:36:38,400
Right.

436
00:36:38,400 --> 00:36:43,560
And I always remember somebody I interviewed telling me in court that the victim's mother

437
00:36:43,560 --> 00:36:50,840
stood up and said that it could have been her son and it could have been the other way

438
00:36:50,840 --> 00:36:56,000
around and expressed sympathy to the defendants for that.

439
00:36:56,000 --> 00:37:03,800
There's also been a young man I interviewed who said that the victim's family were coming

440
00:37:03,800 --> 00:37:06,800
to visit him.

441
00:37:06,800 --> 00:37:15,560
And so, yeah, I guess we don't do any, we don't prevent any future harm by putting 10

442
00:37:15,560 --> 00:37:20,800
people in prison for one crime for decades.

443
00:37:20,800 --> 00:37:21,800
In fact, we do the opposite.

444
00:37:21,800 --> 00:37:26,360
We're sending them to places that are not therapeutic in any way and don't allow them

445
00:37:26,360 --> 00:37:31,380
to recover from the trauma that they've probably experienced as well.

446
00:37:31,380 --> 00:37:36,400
And so, and the harm extends beyond the individuals as well, it extends to their families.

447
00:37:36,400 --> 00:37:42,200
So we take away people from more families for a period in which it's long enough for

448
00:37:42,200 --> 00:37:45,640
them to not be sure that they'll still be alive when they come out, for a period of

449
00:37:45,640 --> 00:37:50,080
which many people now know they won't ever get grandchildren or the people inside might

450
00:37:50,080 --> 00:37:53,520
not be able to have children.

451
00:37:53,520 --> 00:37:58,880
You know, it's devastating and it predominantly is happening to young black people.

452
00:37:58,880 --> 00:38:06,720
And that's why lots of the people I've interviewed refer to it as, you know, being kidnapped

453
00:38:06,720 --> 00:38:08,400
by the slave master.

454
00:38:08,400 --> 00:38:14,960
Because I had a guy called Sean, not his real name, who said, you know, it's a cheat code

455
00:38:14,960 --> 00:38:21,640
for the police to sweep us all off the streets, all the black kids they want off the streets.

456
00:38:21,640 --> 00:38:22,640
And it really is.

457
00:38:22,640 --> 00:38:27,740
The CPS data that was just released indicates that you're 16 times more likely to be prosecuted

458
00:38:27,740 --> 00:38:30,320
under joint enterprise if you're black.

459
00:38:30,320 --> 00:38:34,060
And so the law on paper isn't racist.

460
00:38:34,060 --> 00:38:38,040
If you read it out, you know, if you assist or encourage a crime, most people might think

461
00:38:38,040 --> 00:38:40,680
that sounds reasonable.

462
00:38:40,680 --> 00:38:48,240
But when you actually look at how it's applied in our courts and sit and watch a full trial,

463
00:38:48,240 --> 00:38:54,080
I think most people's jaws would drop at the kind of farce that it is at times and how

464
00:38:54,080 --> 00:39:00,360
we're sending so many people to prison for one crime and so many people who had very

465
00:39:00,360 --> 00:39:02,760
little to do with it, if nothing at all.

466
00:39:02,760 --> 00:39:04,160
Yeah, thank you so much for that.

467
00:39:04,160 --> 00:39:08,640
And thank you for sketching a very needed picture of like the reality of how this law

468
00:39:08,640 --> 00:39:09,640
is applied.

469
00:39:09,640 --> 00:39:13,440
So yeah, thank you so much.

470
00:39:13,440 --> 00:39:17,120
Thank you so much for listening to today's podcast.

471
00:39:17,120 --> 00:39:21,480
Before ending, I wanted to link some online resources where you can find out more about

472
00:39:21,480 --> 00:39:25,880
the work that organizations are doing to combat the issues discussed.

473
00:39:25,880 --> 00:39:32,120
In the description, Jengba's website is linked alongside some key reports on joint enterprise.

474
00:39:32,120 --> 00:39:37,600
The link to appeal, which is the charity that Nisha works part of, is also linked if you're

475
00:39:37,600 --> 00:39:51,960
interested in wider criminal justice issues.