Welcome to the Oxford Undergraduate Law Podcast, where we discuss the law and its relationship
with society.
I'm Juliette.
And I'm Rach and we are your podcast editors.
We will platform academics, practitioners and experts from different backgrounds on this
podcast.
In today's episode, I will be speaking to Nisha Waller.
Nisha is a final year PhD candidate in the Centre for Criminology at the University of
Oxford and is a researcher at charity law practice, Appeal.
Nisha's PhD research focuses on complicity law, commonly referred to as joint enterprise,
and its relationship to the criminalisation of young black men.
Over the course of her doctorate, Nisha has visited a number of prisons in England, interviewing
young black men convicted as secondary parties to murder.
Her research is also informed by interviews with legal practitioners and the families
of those convicted.
As a starting point, could you tell us a bit about what complicity law and joint enterprise
refer to?
Yeah, so joint enterprise is an umbrella term for multiple ways in which more than one person
can be convicted of the same offence.
So this can be broken down into three categories.
So there could be joint participation, where more than one person physically carries out
the conduct and actually carries out the offence.
And those people would be known as co-principles or joint principles.
Where it gets somewhat more complicated or controversial is when people who don't carry
out the conduct element of the offence can also be held liable or deemed complicit.
So you have what's sometimes referred to as basic accessorial liability, which refers
to people who have intentionally assisted or encouraged the offence, sometimes referred
to as aiding or abetting.
And then you have something which was dealt with in 2016 and no longer exists in this
way, which is parasitic accessorial liability.
I wanted to pick up on that decision in the 2016 case, the case called Jogee.
Could you tell us a bit about what the law looked like pre-Jogee and what catalyzed the
need for change?
Yeah, so the law prior to the Jogee ruling meant that an individual could be convicted
on the basis of foresight.
So if the jury believed that the defendant, although they didn't carry out the crime themselves,
could have or foresaw the possibility that their co-defendant, the principal, might carry
out that crime or would carry out that crime, the jury could also find them guilty.
So the secondary party or the accessory could be convicted on the basis of foresight and
not intent, so they didn't have to intend for that crime to take place.
And that typically occurred in cases like the parasitic accessorial liability where
there was crime A and crime B. So the argument of the prosecutor would be you could have
foreseen that in the course of a burglary, your co-defendant might kill somebody if
they were within the premises, for example.
That foresight as a reason of fault was also used in cases that were more basic accessorial
liability cases, so there wasn't crime A, crime B. So foresight basically became the
standard in complicity cases and it was applied in that way for 30-ish years, which yeah,
and Jogee dealt with that by changing the standard of fault from foresight to intent.
So now we just have basic accessorial liability where the secondary party has to intend to
assist or encourage the crime.
So what made the standard being foresight rather than intent so problematic and why
did so many people advocate for this to be changed in the law?
It's arguably the lowest fault standard that there has been in criminal law to be held
liable for things like murder on the basis of your probable foresight.
How do you judge whether somebody could foresee somebody else's actions or not?
And so the key problem there as well was that the secondary party could be convicted based
on foresight, but the principal, the person who carried out the crime, had to intend to
carry out the crime, which also made not much sense at all.
So yeah, huge injustices resulting from that and lots of people obviously have been campaigning
for a long time before that, most notably Jenga, Joint Enterprise Not Guilty by Association,
who campaigned tirelessly leading up to that judgment.
And has Jogee been considered a successful case in terms of the changes that it brought
about or are there some persisting issues that still need to be addressed?
Yeah, so what's really just sad about that is that lots of people saw it as a success
and lots of people thought, you know, my family members coming home or people in prison thought
that maybe I'm going home.
I mean, the law was incorrectly applied in their case, yet all but one of those people
are either still behind bars serving what's often a life sentence or they've completed
their sentence and haven't been released as a result of Jogee or even had their cases heard
at the Court of Appeal.
So that's the reason for that in short.
The law ultimately states that even though there's been a change in law, an individual
has to prove that had the law been correctly applied in their trial, so the judge had the
judge given the direction of intent rather than foresight, that the jury wouldn't have
found them guilty.
But it's almost impossible to make that judgment without a retrial.
How do you come to that conclusion without a retrial?
And so it's a really high bar to me and it's only been met once in the case of John Crilley.
And so, yeah, we have potentially thousands of people still behind bars who were convicted
under a law that has now been said to have been incorrect.
And so looking at what Jogee actually sets out in terms of the test for contribution,
it's as you said, intention.
But a lot of people have spoken about how this still is very unclear in reality and
that has kind of given the prosecution opportunity to adopt a very wide conception of complicity
or joint enterprise.
So how have you seen this play out in practice?
Yeah, so this is another problem with the law and something that Jogee didn't address
is that the issues that are similar to pre-Jogee continue because the law is so vague even
now.
So we have, although you have to intend to assist or encourage an offence now, which
is, I guess, a higher fault standard, assistance and encouragement isn't properly defined in
law in that somebody's presence, although it has to be deemed as supportive in some
way, can be enough physical conduct to convict somebody of an offence that was carried out
by somebody else.
So I've interviewed lots of young men who are now serving life sentences convicted
to serve a time in custody that's longer than they've been alive, many of them are 16 and
a couple younger, who were literally just at the scene when it occurred and others who
weren't even at the scene but had a series of phone calls of which the content of that
phone call is actually unknown but which the prosecution argued was them involved in the
planning of the offence and therefore encouraging or assisting it in some way.
And so the main problem with that, in addition to the fact that assistance and encouragement
is so vague and not properly defined, we also have that there's no requirement that the
secondary party makes any substantial contribution to the offence and so these are two interconnected
issues.
By substantial contribution, I mean there's no requirement that there is any kind of direct
actual influence of that secondary party's conduct on the principal offender's behaviour,
so they don't need to cause the principal offender to carry out the crime in any way,
so they don't even have to make it much more likely that it actually happens.
And that kind of contradicts the very terms of assistance and encouragement, right, you
think of encouragement, you think you're having an effect on something, you're encouraging
something but the law doesn't really require there to be any significant effect on the
principal's conduct from the secondary party for them to be liable.
Do you have any examples of things that you've seen in your experience from your recent that
you found really shocking to you that that amounts to assistance or encouragement by
law?
Yeah, loads, it's hard to pinpoint now because you've asked me to be specific but every time
I've interviewed people, the majority of the time I've been surprised as to how their conduct
met a standard of assistance or encouragement.
I'll try to think of a specific case that I can draw on.
Yeah, so I can speak about a specific case of a young man, he was sat in the back of
a car, I interviewed him and his co-defendant and his co-defendant was driving the car
and now this car didn't have any, nobody in this car carried out the events, there was
another car that they were travelling with.
In the other car, the other car had stopped as they had seen somebody coming out of the
housing estate and people had got out of the other car and chased these people back into
the housing estate which resulted in a fatality.
So the guy that I interviewed and his co-defendant remained in the other vehicle and the really
sad thing about this one was because the guy in the back of the car that wasn't involved
said he was asleep in the back of the car and he said he'd smoked some weed and he was
falling asleep on the journey that they were taking and I then interviewed his co-defendant
who said, you know, my friend was convicted of murder for sleeping in the back of my car
and when he said that I was just like, well, you know, I know that this happens obviously
through the work that I do but it's like when it's said, it's put to you like that from
two different people, yeah, it just goes to show that you can, it's quite easy to end
up in a situation where you're facing a life sentence and in no way did he contribute,
he wasn't driving, he was in the back of a car, in no way, even if he wasn't asleep as
the prosecution would claimed, he did not contribute to the offence in any way.
So there seems to be such a low standard despite the changes that were made in Jogee.
What do the prosecution kind of propose as a justification for this?
Are there some kind of cases that they outline or look, this is why we're doing that, this
justifies the law, being like this and how does that actually map onto the reality that
you and others have seen?
Yeah, I think, I mean, it's possible, it's possible to concede that somebody who's present
at the scene of a crime was there for the purpose of encouraging it, right?
What you do with those people, I don't think is a life sentence in prison but my problem
is how on earth do you prove that beyond reasonable doubt that they were there for that purpose
unless there is direct evidence of their purpose for being in that place was to carry out violence?
And that's where prosecution case theory becomes really important to them because they rely
often quite heavily on their case theory.
Because the law is so vague, it brings people into the scope of prosecution who haven't
done very much and therefore where there's very often limited circumstantial evidence
against them and the prosecution therefore have to rely on their case theory which is
often, you know, they're all part of a gang therefore they all have the same intention
and that's why these cases are so racialised because the gang is, as you know, a stereotype
that is often applied to young black men who are assumed to be gang members.
Yeah, I'd like to focus a bit more on that because this is what you're doing your research
on and you've spoken before about how this gang narrative is being used as kind of a
conviction maximising prosecution strategy.
So could you speak a bit more about what that means and from speaking not only to people
who have been, you know, criminalised but also speaking to practitioners, what are some
of the things that you've heard?
Yeah, so one of my key arguments is that the gang as a narrative in the courtroom functions
in some cases to address weaknesses in the prosecution's case which come from the vagueness
of the law so the fact that the law allows people to be prosecuted who haven't done very
much, I'd argue that that means prosecutors need to rely more heavily on their case theory
to convince the jury that, you know, a person who merely was just at the scene or in a car
at the scene was intending to assist or encourage the principal because the gang immediately
evokes notions of criminality, notions of collective criminality but what I go into much more detail
in my research thesis which speaks to the multiple ways in which the gang functions
in the courtroom and what it actually does to get to construct the intent of the secondary
party and so there are four ways that I say that it does that.
I say that it does it through establishing a sort of contextual backdrop and shared motive
for the offence, so kind of weaving a logical thread between the crime and the defendants
by saying look they have a collective motive because this is their rival and therefore
they all irrespective of their level of physical conduct wanted and intended for that crime
to take place.
It also helps the prosecution to assume or argue that there was shared knowledge between
the defendants so if you're a gang of course you knew, you must have known he was carrying
a knife, you must have known of his intention to carry out this crime.
Third, it constructs a criminal character of the defendant immediately by invoking that
notion of the gang which then portrays an individual who is not only willing but capable
of intentionally assisting or encouraging serious violence.
And lastly, which is a bit more of a complex argument but I'd argue that it constructs
a state of almost sort of near permanent premeditation or conditional, permanent conditional intent
so kind of voiding any notion that the violence was spontaneous or that the individual was
just merely present, they were, they were always acting in a supportive capacity because
they're part of that gang so I'll give you an example.
There was a young man, I'll call him Shaquille for anonymity reasons that I interviewed and
his case involved, it was him and his co-defendant, they were both in his word chilling on the
block during the day and they were approached by two other young people with knives.
Now that was accepted by the prosecution that they were approached by two young people with
knives.
Shaquille didn't have a knife on him but his co-defendant had a knife and Shaquille and
his co-defendant obviously fought back and that led to a fatality so Shaquille's co-defendant
caused the fatality and Shaquille and his co-defendant despite being approached first
by other people, self-defence wasn't accepted as a defence and they were charged with murder,
not even manslaughter, they were charged with murder.
Huge issues with that but the jury found Shaquille guilty of manslaughter which goes to show
that he probably should have at the very most been charged with manslaughter which I can't
even agree with but it goes to show how, because during that case the prosecution argued that
he wasn't just chilling on the block innocently, he was chilling on the block expecting the
arrival of his rivals, expecting his rivals to appear because that's what he did on a
day-to-day basis.
So they invoked this notion of gangs and rivalry to suggest that it wasn't spontaneous, you
weren't just attacked, you know that that's your purpose for chilling on the block is
to wait for your rivals to appear.
So just by merely existing in his friend's neighbourhood and that happening to him, the
prosecution invoked that he was, you know, these were two gangs that had ongoing rivalries
and therefore it can't be spontaneous, you're always willing to act in a supportive capacity
should violence erupt in this way.
It seems almost as if it's portraying these young people as being predisposed to violence
in some kind of way, in some distinct way.
So can you speak a bit more about what specific appeals, what specific examples or evidence
will be used by the prosecution?
Yeah, to go back to that case, one thing that was used in that case was reference to music
lyrics that were on one of the defendant's phones.
Now actually what's really interesting in that case is that the judge didn't allow the
lyrics in, he didn't allow in the actual lyrics but he allowed the prosecution to let the
jury know that there were violent lyrics on their phone, like rap lyrics.
And rap music, or drill specifically, drill music, features heavily in many of these cases
as an indicator of gang ties or gang affiliation.
Often people who are just merely in a music video, not actually rapping themselves, are
sort of accused of having gang ties or gang affiliations because they're in these videos.
And yeah, ultimately in the courtroom, music, well drill and rap, although it's an art form,
is often taken at face value and you have prosecutors arguing that there are almost
confessions within music and are often ignorant to the violent conventions of drill because
drill music, it's conventional for lyrics to be violent, right?
You'll have lyrics that are likely to reflect a violent incident that takes place on the
streets but those lyrics are reused.
You'll see lyrics that look pretty much the same in all different drill tracks, right?
There was another guy, I'll call him Simeon, that I interviewed, he had his drill lyrics
used at his trial as part of the prosecution's claim that his drill music group was a gang.
And the prosecutor admitted that he had attempted to adduce lyrics that said something along
the lines of a hop out the whip and stab him, something like that.
And that is literally what happened in his case, right?
Somebody got out of the car, not him, he was inside the car and stabbed a person.
But it turned out these lyrics were written two years prior to the incident.
So it just goes to show how easy it is to attach drill lyrics to an actual violent incident
and claim that they are referencing that incident.
So yeah, I'd say prosecutors and judges are not awake enough to the conventions of drill
music and the fact that it does rely on persona, exaggeration, myth-making and it's an art
form, it's just not given legitimacy in the same way as other art forms in my view because
it's a black musical genre.
So how is it even that the prosecution is able to get their hands on this information
or why do they rely on music to build a case against defendants?
Yeah, there is increasingly more consciousness amongst lawyers and I think judges as well
as to the kind of prejudicial nature of this type of evidence, particularly music, drill
music.
But it's still happening.
And we need to think about the broader picture, broader policy because that's the reason it's
coming in.
That's the reason the police are presenting it to the prosecution, to the CPS as part
of their package of evidence.
Serious violence amongst young people.
We never really look at the structural root causes of it and sadly instead we often blame
things like culture because it's a scapegoat for government.
The government haven't got to do anything about austerity or the closure of youth services,
the cuts to funding for youth services and so they blame gangs, I say that quickly, and
they blame drill.
And so what we've seen over the last few years is the kind of proliferation of initiatives
in policing that focus on monitoring young people's social media and specifically YouTube
and drill music videos.
They now have officers known as trusted flaggers who kind of flag drill music videos to get
them removed from YouTube and other platforms.
But also they now have specific operations.
They've got an operation called, well a project called Project Alpha, which is a Met Police
project that received a significant amount of home office funding launched in 2019, where
it's ultimately a unit of officers who scour social media for things like this.
And what's happening is they're just collating lots of data on predominantly young black
men that can later be used as evidence in a prosecution case.
In that they have another operation, Operation Domain, which is a Met Police catalogue of
what they say is gang related drill music, gang related music.
And I think they claim not to be keeping this as potential evidence, but ultimately it's
led to I think many, many records that have actually been used in criminal trials.
And they also have Project Insight, which trains officers to give evidence on gangs
and drill music.
And I've heard anecdotally from colleagues that work in the courts that this is a kind
of very short, less than a week's course that these officers go on.
I'm not sure if that's directly linked to Project Insight, but I've heard from barristers
in court who have said, you know, officers giving evidence have said they've been on
a week long course and now are giving expert evidence on drill music and decoding it.
And yeah, it's really problematic because the police ultimately are, like policing black,
young black men is almost become embedded into policy just because there's this policy
shift towards holding drill accountable for serious violence.
And as we know, it's predominantly young black men who are involved in producing or who are
the artists and therefore they are facing the consequences.
And in some cases, you know, life completely life altering consequences as a result of
that.
And in that policing contributes hugely to the prosecution's ability to present this
gang narrative at trial because every contact with the police leaves a trace.
And we know that young black men are more likely to encounter the police through stop
and search and other measures.
And the recent Casey review literally acknowledged that every contact with the police leaves
a trace.
Every contact is documented and the police build their intelligence through stop and
searches.
And so you have some of the young men when I was talking to them were so shocked when
a police officer got on the stand and said, look, this is such and such pointing at the
defendant pointing at him saying, I've known him for X amount of years.
He's from this area, which is affiliated with this such and such gang.
And he is known to the gang's unit.
And they're shocked because they're like, this isn't me you're describing.
How do you even know me?
I've never seen you in my life.
And so black communities have almost been turned into states of surveillance because
of this policy focus on gangs and because gangs have been identified as a particular
problem in black communities.
But the statistics don't match up.
So it's important to note that, for example, on the Metropolitan Police's gang's matrix,
which has now been ruled unlawful, 80% of the people on it were black.
But that's 80% of serious youth violence wasn't carried out by black people.
So there's a huge mismatch there.
And serious violence has become so racialized that it's almost seen as an explicitly black
issue.
And therefore, black communities are bearing the brunt of gangs policing and anything to
do with offenses that involve knives.
So every initiative that is designed to curtail gangs or knife-related violence are going
to disproportionately impact young black men, irrespective of whether they are involved
in any criminal activity.
It seems that going back to even addressing the problems of joint enterprise, from what
you've been speaking out, it seems that it can't just be approached through looking at
the law on paper, making some changes, expanding a test, or even making that more clear.
It seems that there need to be much wider changes in terms of law and policing in general.
So what are some things that you have heard, some proposals for change that is necessary
on a wide scale, as well as in a narrower scale in the joint enterprise context?
Changing the law could help to some degree, right?
So we could narrow the law and we could set a reasonable test for contribution.
And I think that would force prosecutors to be more specific about who did what.
It would make them less able to rely on their case theory as heavily.
They'd actually have to specify what each individual did and how they contributed to
the offense for them to get over their burden of proof, which I think might help, might
limit the use of gang evidence or its impact, because the bar for bringing somebody into
the scope of prosecution would be narrower.
However, the joint enterprise is just one element of our criminal justice system in
which systemic racism manifests.
And so it's much, much bigger than the joint enterprise.
I think we need to start reframing violence.
One of the reasons why joint enterprise is applied in such a disproportionate way is
because, as I previously said, violence is looked at as a...
Violence amongst young people in particular is looked at through the lens of race.
And we don't talk about other forms of violence.
So for example, we've had knife crime, which has been, you know, almost becomes synonymous
with the notion of gangs and looked at through the lens of race.
Yet knives are the most commonly used weapon in intimate partner homicides.
However, knife crime, if you want to call it that, has only become a subject of public
concern and political outrage when it involves young black people on the street.
It's not become agendered.
There's no moral panic about it being agendered, a phenomenon around domestic violence, even
though it is the most commonly used weapon in domestic violence cases.
And so we've almost invisibilized certain forms of violence because society is so focused
on violence as a race problem.
And we also don't talk about state violence in these discussions.
We don't talk about violence carried out by the state.
And so I think we require a whole shift in society's thinking around violence and what
that looks like and harm and what that looks like and how we respond to it.
Why are we responding to harm with more harm?
You know, like with harm that is like we're putting...
I'll talk about a case briefly, but it's not a joint enterprise case.
It's a conspiracy to murder case, but it has all the hallmarks of prosecution case theory
in a joint enterprise case.
There were 10 boys convicted in Manchester of conspiracy to murder and conspiracy to
GBH on the basis largely of a group chat.
So no murder was carried out and they were grieving the loss of their friend who was
murdered.
And in this chat, there was references made to what the prosecution claim was chats about
getting revenge.
And despite the large majority of them not carrying out any harm at all, they were given
a sentence of combined...
I don't know off the top of my head, but it's over a hundred years.
And so we're responding to young people who have experienced some of the most traumatic
things like losing a friend with more harm, you know, even in cases where nobody died,
you know.
Where is the good in that?
Like what are we trying to achieve?
We are...
I was with my friend who's a barrister the other day and I asked her to tell me what
a Casey senior barrister would get on a typical case, like a murder case, like a joint enterprise
case for a trial that's about, you know, six, seven weeks long, something like as lots of
these are.
And it was about 80,000 pounds.
That's one Casey.
So if you've got 10 defendants, they each have a Casey, a junior barrister and solicitor
and then you've got the prosecution.
I can't even figure out how much money is, but it's millions, you know, it ends up being
millions what's going into that.
And they're all remanded in custody for the time of their trial.
What does it cost to keep somebody in prison for a year?
Hundreds of thousands.
So it's unfathomable how we can justify responding to people who haven't carried out any violence
in this way when that money could be diverted into youth services who could respond to the
harm that happened in the first place, particularly in the case of the 10 boys in Manchester.
It makes absolutely no sense.
By your question, I was wondering if you could speak a bit about what you think from your
experience speaking to people criminalized under joint enterprise, what accountability
and responsibility actually looks like and what it should look like as interpreted by
the law.
Yeah, I think firstly, I should say that I think there are a lot of people in prison
right now who are not responsible at all, who are convicted as a second party under
joint enterprise.
And I think that's because of the vagueness of the law, firstly, so it allows people to
be prosecuted who actually aren't responsible in some cases.
And look, I do get some people, I have had some people say to me, you know, okay, I think
I take responsibility for doing this, but I didn't intend for the person to carry out
murder or any serious harm.
And so for example, there's a young guy who I'll call Ryan, who went to the scene because
he knew there was going to be a fight and he didn't think it was going to escalate.
And at the point that the knife was pulled, he was actually on the floor as he had been
pushed over and didn't witness the stabbing take place.
But he took some responsibility for it.
He took some responsibility for what happened, but he sat doing a life sentence when he didn't
intend for anyone to be seriously injured or to die.
And so the sentences are so disproportionate to what the person's actually done and intended
to happen.
They are, if they are convicted of murder under joint enterprise, they will receive
a life sentence.
And as I said at the beginning, a lot of them are convicted for a time in custody that's
longer than they've been on the planet, which to me is absolutely absurd for somebody who's
not carried out violence.
I could argue that it's absurd to put any young person in prison for that long, irrespective
of what they've done.
It doesn't solve anything.
And I think we need to have a more restorative justice approach to how we respond to harm
in this way and kind of people, those who are harmed by crime and those responsible
for the harm and support them in repairing that harm, communicating, but involving everyone
affected in that process.
And I think it's almost become alien to us to think about responding to harm or crime
in that way because our justice system just doesn't embody those principles at all.
And it's interesting because some of the young people in their families that I've spoken
to who are convicted under drug enterprise have said that the victim's family have approached
them and said, you know, look, I know it wasn't your son and have expressed sympathy.
And this doesn't happen in all cases.
In a lot of cases, the victim's family do want all of the defendants to be convicted,
but it has happened because they recognize that in some cases it could have been their
son on the other side.
Right.
And I always remember somebody I interviewed telling me in court that the victim's mother
stood up and said that it could have been her son and it could have been the other way
around and expressed sympathy to the defendants for that.
There's also been a young man I interviewed who said that the victim's family were coming
to visit him.
And so, yeah, I guess we don't do any, we don't prevent any future harm by putting 10
people in prison for one crime for decades.
In fact, we do the opposite.
We're sending them to places that are not therapeutic in any way and don't allow them
to recover from the trauma that they've probably experienced as well.
And so, and the harm extends beyond the individuals as well, it extends to their families.
So we take away people from more families for a period in which it's long enough for
them to not be sure that they'll still be alive when they come out, for a period of
which many people now know they won't ever get grandchildren or the people inside might
not be able to have children.
You know, it's devastating and it predominantly is happening to young black people.
And that's why lots of the people I've interviewed refer to it as, you know, being kidnapped
by the slave master.
Because I had a guy called Sean, not his real name, who said, you know, it's a cheat code
for the police to sweep us all off the streets, all the black kids they want off the streets.
And it really is.
The CPS data that was just released indicates that you're 16 times more likely to be prosecuted
under joint enterprise if you're black.
And so the law on paper isn't racist.
If you read it out, you know, if you assist or encourage a crime, most people might think
that sounds reasonable.
But when you actually look at how it's applied in our courts and sit and watch a full trial,
I think most people's jaws would drop at the kind of farce that it is at times and how
we're sending so many people to prison for one crime and so many people who had very
little to do with it, if nothing at all.
Yeah, thank you so much for that.
And thank you for sketching a very needed picture of like the reality of how this law
is applied.
So yeah, thank you so much.
Thank you so much for listening to today's podcast.
Before ending, I wanted to link some online resources where you can find out more about
the work that organizations are doing to combat the issues discussed.
In the description, Jengba's website is linked alongside some key reports on joint enterprise.
The link to appeal, which is the charity that Nisha works part of, is also linked if you're
interested in wider criminal justice issues.