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It is not known how many people are in prison for murder when they did not kill anyone but were convicted as secondary parties via the discredited label ‘joint enterprise’. It is not known how many of these people were convicted under the law on ‘joint enterprise’ that in 2016 was held to be erroneous by the Supreme Court of the United Kingdom. It is not known how many of these people in prison live with autism spectrum disorder (ASD). There is currently no national UK audit of prisons to establish this information.
It is known that ASD is a lifelong neurodevelopmental disability which affects how people interpret the world and understand it. It affects more than one in 100 people. Despite its prevalence, it remains poorly understood, stigmatised and stereotyped. Research states: ‘if social conventions and connectedness are opaque to [people with ASD], how can they authentically appreciate that a person’s actions are morally wrong?’ The Autism Research Centre, University of Cambridge found that an overwhelming majority of ASD accused persons were not provided with adequate support or adjustments in the UK criminal justice system (CJS). This followed an Equality and Human Rights Commission report in June 2020 that warned that the CJS is failing those with learning disabilities and autistic people. The Cambridge report noted that there was almost no research investigating how autistic defendants are being treated within the CJS. In 2024 an expert consensus was published on the identification and support of individuals with ASD in within the UK CJS. It concluded that greater attention needs to be given to this potentially vulnerable population when navigating the CJS.
The Crown Prosecution Service (CPS) Joint Enterprise National Monitoring Scheme 2024/25 data released in September 2025 focused on mental health, to include neurodiverse conditions. It states ‘the quality of data flowing about whether or not a defendant has a disability is poor’ and more likely to ‘be identified during a case’ and while it ‘would be kept under review throughout the life of a case’, any updated information may not be available for the purposes of the monitoring scheme. These are significant holes through which ASD people will fall.
There is now some recognition on sentencing. In 2020 the UK Sentencing Council published guidelines specifying that mental disorders, developmental disorders and neurological disorders should be considered in sentencing. In relation to trials, in Jacobs [2023] EWCA Crim 1503, the Court of Appeal held that while autism is not relevant to reasonable belief as a matter of principle, it may be relevant on the facts of the case, if the belief depends on an impaired ability to read social signals. This makes autism relevant to whether a person can be complicit in someone else’s crime.
This should mean that those living with autism should be treated differently when arriving in police stations and at court. Decisions to prosecute at all should be informed by information on a suspect’s ASD. In street fights that end in a death, it is not correct to suggest that everyone involved in a fight knows what others are doing, nor is it correct to suggest that each intends really serious bodily harm or death. Murder and complicity in murder are charges which require an understanding of both the conduct of an individual and their state of mind. For those with ASD it is simply not good enough to watch what they did or didn’t do on CCTV. It is also not acceptable to rely on past challenging behaviour as ‘bad character’ because that may be a trait of their condition, especially if they are undiagnosed.
Unfortunately, the decision in Jacobs is too late for those already in prison for joint enterprise murder. One of those prisoners is Alex Henry who was convicted as an accessory to a killing in a street fight before 2016. Alex was born in 1992. He was convicted in 2014. He admitted to throwing a phone into a crowd. In English law, throwing a phone is currently enough for accessory liability – risking conviction for any ASD person who reacts to a situation. The jury did not know he was autistic so had no opportunity to consider the relevance of his condition to his conduct in a 47-second incident on the day, nor to consider the effects of his ASD on his police interview: Alex was not diagnosed with ASD until after he was convicted and sentenced. It was accepted at sentence that another young man was the killer: he was sentenced to life imprisonment with a mandatory minimum of 22 years. Alex was sentenced to mandatory life imprisonment with a mandatory minimum term of 19 years. Alex will be 40 by the time he can apply for parole, following which he will be on ‘life licence’ and subject to recall for the rest of his life.
On appeal, Professor Simon Baron-Cohen gave evidence that:
Professor Baron-Cohen was subject to cross-examination, even though the prosecution submitted no contrary expert opinion. The Court of Appeal assessed Alex’s behavioural ASD traits as a ‘mental illness’. Of course, ASD is not a mental illness. It is a neurodiverse condition and a lack of understanding of ASD can lead to a lack of understanding that behaviour is not a ‘problem’ but a symptom that can assist in diagnosis, from which conclusions as to character should not be drawn. Alex’s appeal was rejected on the basis he had not suffered a ‘substantial’ injustice, despite his ASD not being known and him serving a life sentence, labelled with ‘murder’ for not killing anyone.
Professor Baron-Cohen’s diagnosis has since been independently confirmed by two further experts, but the Criminal Cases Review Commission (CCRC) has refused to refer Alex’s case back to the Court of Appeal and the Secretary of State has refused him a conditional pardon what would at least enable his release.
In 2021 campaign group JENGbA (Joint Enterprise Not Guilty by Association) applied for judicial review on grounds that the CPS failed to collect any data on ethnicity and disabilities in joint enterprise prosecutions. In 2023 the CPS agreed to collect this data. Pilot results suggest 5% of those convicted using JE methods have been recorded as having ASD. David Lammy MP has indicated that a Labour Government would reform ‘the injustices of joint enterprise’ law calling the law ‘shoddy’. Two private members bills have been heard in UK Parliament to (1) remove the ‘substantial’ injustice test and (2) to require a ‘significant contribution’ to a crime before liability, but neither have been successful.
An early day motion tabled on 10 September 2024 called for a Law Commission review of ‘joint enterprise’, with a view to narrowing the scope and providing a safer framework for prosecution and sentencing. On 12 September 2024 a report by the Centre for Crime and Justice Studies found that joint enterprise laws are ‘vague and wide in scope, causing systemic injustice, including overcriminalisation, over-punishment, discriminatory outcomes, and convictions where there is no compelling evidence of intent and a defendant’s physical contribution is minimal’. The Westminster Commission on Miscarriages of Justice has said that the ‘substantial injustice’ test is too high a barrier for those trying to appeal their convictions. And that the approach of the Court of Appeal has ‘neutered’ the CCRC. The UK Supreme Court has communicated that it has no power to exercise supervisory jurisdiction over the Court of Appeal if it is unreasonably refusing permission to appeal.
What does this all mean for Alex? He faced unique barriers to justice both pre-conviction and during his attempts to appeal: Alex has difficulty interpreting social situations and perceiving other people’s needs, desires, distress and behaviours. This makes it more likely that he would ‘follow along’ not ‘assist or encourage’. ASD affects Alex’s ability to assess the conduct and intentions of others. Communication differences mean that Alex is also always at risk of being misunderstood.
Alex’s latest move is an application to the Committee for the Convention on the Rights of Persons with Disabilities (CRPD). It is suggested that, as a person with a disability the UK has violated Alex Henry’s rights under the CRPD and that Alex’s ASD was and is directly relevant to exoneration and overincarceration. His experience at all stages of the UK criminal justice system is argued to be discriminatory and inequitable because he has not been able to effectively participate in a criminal proceeding where his ASD is known and properly addressed. The UK is obligated under the CRPD to ensure Alex is both ‘equal before the law’ and ‘equal under the law’. This means that Alex has the right to be protected by the law and has the right to use the law for personal benefit. This interpretation, read in conjunction with Article 4(1)(b) and (c) of the CRPD, requires existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities to be modified or abolished.
Additionally, the protection and promotion of the rights of persons with disabilities should be considered in all policies and programs. State parties must take positive actions to ensure that Alex can have full enjoyment – this includes accommodating his needs within legal processes. The application alleges that Alex’s rights were denied through failures at every stage of appeal. The application also argues that a proper understanding of Alex’s ASD would have explained his conduct in such a way as to create a reasonable doubt as to his culpability.
The application also argues that a broad test of ‘assist or encourage’ also directly impacts those with neurodivergent conditions because conduct such as sitting in a car waiting, or pointing, or cycling towards or away from an incident, have all been held as sufficient for culpability in murder. The consequence of Alex’s case is that any young person with ASD ‘involved’ in crowd violence is at risk of a life sentence, even if they are not able to assess what another person would do and even if they make no significant contribution to the crime. The result is the imposition of a harsh and grossly disproportionate sentence exacerbated by being labelled with ‘murder’ which is especially difficult for parole purposes. Thus, it is suggested that the UK has violated his CRPD rights and is perpetuating discriminatory customs and practices as opposed to supporting their modification or abolishment.
It is not known whether Alex’s application to the CRPD will be accepted – addressing issues of murder was probably not in the forefront of the minds of the drafters of the Convention when it was written, but Alex’s is a case that highlights why there needs to be a change of approach to joint enterprise and autism in the CJS. A Westminster Commission on Joint Enterprise law and policy launched on 12 November 2024. On 6 December 2024 the Law Commission announced a review on the law on homicide and sentencing. A few weeks earlier, the most senior former judges in England and Wales called on the government to reverse the trend of imposing ever longer sentences, giving warning that radical solutions are needed to address the acute crisis in prisons.
Alex Henry’s case may be the answer: audit the prisons and release those offenders wrongly convicted under ‘joint enterprise’, especially those with autism.
Demonstrators outside the Supreme Court in March 2017 appealing for justice for Alex Henry and others convicted of murder under the ‘joint enterprise’ label.
Slavny-Cross, R et al, Autism and the criminal justice system: An analysis of 93 cases, Autism Research, 15 March 2022
Equality and Human Rights Commission, Inclusive justice: a system designed for all, June 2020
CPS Joint Enterprise National Monitoring Scheme 2024-25
Woodhouse, E, Hollingdale, J, Davies, L et al, ‘Identification and support of autistic individuals within the UK Criminal Justice System: a practical approach based upon professional consensus with input from lived experience’, BMC Med 22, 157 (2024)
Crown Prosecution Service Joint Enterprise Pilot 2023: Data Analysis, CPS, 29 September 2023
Centre for Crime and Justice Studies, Nisha Waller, The legal dragnet: Joint enterprise law and its implications, September 2024
Law Commission review of the law relating to homicide offences, including full and partial defences, and the existing sentencing framework for murder. The Law Commission is inviting responses to its call for evidence until 31 October 2025.
Felicity is counsel for Alex Henry instructed by Dean Kingham of Reece Thomas Watson Solicitors. She is also counsel assisting the Westminster Commission on Joint Enterprise.
Dr Felicity Gerry KC is at Libertas Chambers, London and Crockett Chambers, Melbourne and is an Honorary Professor at Salford University and Deakin University. She is well know for taking the appeal in R v Jogee which corrected an error of law on mens rea in joint enterprise and the case of Fiaz (Hussein and Others) where the Court of Appeal rejected the need for the prosecution to prove a defendant must make a material contribution to a crime before being convicted as a secondary party.
It is not known how many people are in prison for murder when they did not kill anyone but were convicted as secondary parties via the discredited label ‘joint enterprise’. It is not known how many of these people were convicted under the law on ‘joint enterprise’ that in 2016 was held to be erroneous by the Supreme Court of the United Kingdom. It is not known how many of these people in prison live with autism spectrum disorder (ASD). There is currently no national UK audit of prisons to establish this information.
It is known that ASD is a lifelong neurodevelopmental disability which affects how people interpret the world and understand it. It affects more than one in 100 people. Despite its prevalence, it remains poorly understood, stigmatised and stereotyped. Research states: ‘if social conventions and connectedness are opaque to [people with ASD], how can they authentically appreciate that a person’s actions are morally wrong?’ The Autism Research Centre, University of Cambridge found that an overwhelming majority of ASD accused persons were not provided with adequate support or adjustments in the UK criminal justice system (CJS). This followed an Equality and Human Rights Commission report in June 2020 that warned that the CJS is failing those with learning disabilities and autistic people. The Cambridge report noted that there was almost no research investigating how autistic defendants are being treated within the CJS. In 2024 an expert consensus was published on the identification and support of individuals with ASD in within the UK CJS. It concluded that greater attention needs to be given to this potentially vulnerable population when navigating the CJS.
The Crown Prosecution Service (CPS) Joint Enterprise National Monitoring Scheme 2024/25 data released in September 2025 focused on mental health, to include neurodiverse conditions. It states ‘the quality of data flowing about whether or not a defendant has a disability is poor’ and more likely to ‘be identified during a case’ and while it ‘would be kept under review throughout the life of a case’, any updated information may not be available for the purposes of the monitoring scheme. These are significant holes through which ASD people will fall.
There is now some recognition on sentencing. In 2020 the UK Sentencing Council published guidelines specifying that mental disorders, developmental disorders and neurological disorders should be considered in sentencing. In relation to trials, in Jacobs [2023] EWCA Crim 1503, the Court of Appeal held that while autism is not relevant to reasonable belief as a matter of principle, it may be relevant on the facts of the case, if the belief depends on an impaired ability to read social signals. This makes autism relevant to whether a person can be complicit in someone else’s crime.
This should mean that those living with autism should be treated differently when arriving in police stations and at court. Decisions to prosecute at all should be informed by information on a suspect’s ASD. In street fights that end in a death, it is not correct to suggest that everyone involved in a fight knows what others are doing, nor is it correct to suggest that each intends really serious bodily harm or death. Murder and complicity in murder are charges which require an understanding of both the conduct of an individual and their state of mind. For those with ASD it is simply not good enough to watch what they did or didn’t do on CCTV. It is also not acceptable to rely on past challenging behaviour as ‘bad character’ because that may be a trait of their condition, especially if they are undiagnosed.
Unfortunately, the decision in Jacobs is too late for those already in prison for joint enterprise murder. One of those prisoners is Alex Henry who was convicted as an accessory to a killing in a street fight before 2016. Alex was born in 1992. He was convicted in 2014. He admitted to throwing a phone into a crowd. In English law, throwing a phone is currently enough for accessory liability – risking conviction for any ASD person who reacts to a situation. The jury did not know he was autistic so had no opportunity to consider the relevance of his condition to his conduct in a 47-second incident on the day, nor to consider the effects of his ASD on his police interview: Alex was not diagnosed with ASD until after he was convicted and sentenced. It was accepted at sentence that another young man was the killer: he was sentenced to life imprisonment with a mandatory minimum of 22 years. Alex was sentenced to mandatory life imprisonment with a mandatory minimum term of 19 years. Alex will be 40 by the time he can apply for parole, following which he will be on ‘life licence’ and subject to recall for the rest of his life.
On appeal, Professor Simon Baron-Cohen gave evidence that:
Professor Baron-Cohen was subject to cross-examination, even though the prosecution submitted no contrary expert opinion. The Court of Appeal assessed Alex’s behavioural ASD traits as a ‘mental illness’. Of course, ASD is not a mental illness. It is a neurodiverse condition and a lack of understanding of ASD can lead to a lack of understanding that behaviour is not a ‘problem’ but a symptom that can assist in diagnosis, from which conclusions as to character should not be drawn. Alex’s appeal was rejected on the basis he had not suffered a ‘substantial’ injustice, despite his ASD not being known and him serving a life sentence, labelled with ‘murder’ for not killing anyone.
Professor Baron-Cohen’s diagnosis has since been independently confirmed by two further experts, but the Criminal Cases Review Commission (CCRC) has refused to refer Alex’s case back to the Court of Appeal and the Secretary of State has refused him a conditional pardon what would at least enable his release.
In 2021 campaign group JENGbA (Joint Enterprise Not Guilty by Association) applied for judicial review on grounds that the CPS failed to collect any data on ethnicity and disabilities in joint enterprise prosecutions. In 2023 the CPS agreed to collect this data. Pilot results suggest 5% of those convicted using JE methods have been recorded as having ASD. David Lammy MP has indicated that a Labour Government would reform ‘the injustices of joint enterprise’ law calling the law ‘shoddy’. Two private members bills have been heard in UK Parliament to (1) remove the ‘substantial’ injustice test and (2) to require a ‘significant contribution’ to a crime before liability, but neither have been successful.
An early day motion tabled on 10 September 2024 called for a Law Commission review of ‘joint enterprise’, with a view to narrowing the scope and providing a safer framework for prosecution and sentencing. On 12 September 2024 a report by the Centre for Crime and Justice Studies found that joint enterprise laws are ‘vague and wide in scope, causing systemic injustice, including overcriminalisation, over-punishment, discriminatory outcomes, and convictions where there is no compelling evidence of intent and a defendant’s physical contribution is minimal’. The Westminster Commission on Miscarriages of Justice has said that the ‘substantial injustice’ test is too high a barrier for those trying to appeal their convictions. And that the approach of the Court of Appeal has ‘neutered’ the CCRC. The UK Supreme Court has communicated that it has no power to exercise supervisory jurisdiction over the Court of Appeal if it is unreasonably refusing permission to appeal.
What does this all mean for Alex? He faced unique barriers to justice both pre-conviction and during his attempts to appeal: Alex has difficulty interpreting social situations and perceiving other people’s needs, desires, distress and behaviours. This makes it more likely that he would ‘follow along’ not ‘assist or encourage’. ASD affects Alex’s ability to assess the conduct and intentions of others. Communication differences mean that Alex is also always at risk of being misunderstood.
Alex’s latest move is an application to the Committee for the Convention on the Rights of Persons with Disabilities (CRPD). It is suggested that, as a person with a disability the UK has violated Alex Henry’s rights under the CRPD and that Alex’s ASD was and is directly relevant to exoneration and overincarceration. His experience at all stages of the UK criminal justice system is argued to be discriminatory and inequitable because he has not been able to effectively participate in a criminal proceeding where his ASD is known and properly addressed. The UK is obligated under the CRPD to ensure Alex is both ‘equal before the law’ and ‘equal under the law’. This means that Alex has the right to be protected by the law and has the right to use the law for personal benefit. This interpretation, read in conjunction with Article 4(1)(b) and (c) of the CRPD, requires existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities to be modified or abolished.
Additionally, the protection and promotion of the rights of persons with disabilities should be considered in all policies and programs. State parties must take positive actions to ensure that Alex can have full enjoyment – this includes accommodating his needs within legal processes. The application alleges that Alex’s rights were denied through failures at every stage of appeal. The application also argues that a proper understanding of Alex’s ASD would have explained his conduct in such a way as to create a reasonable doubt as to his culpability.
The application also argues that a broad test of ‘assist or encourage’ also directly impacts those with neurodivergent conditions because conduct such as sitting in a car waiting, or pointing, or cycling towards or away from an incident, have all been held as sufficient for culpability in murder. The consequence of Alex’s case is that any young person with ASD ‘involved’ in crowd violence is at risk of a life sentence, even if they are not able to assess what another person would do and even if they make no significant contribution to the crime. The result is the imposition of a harsh and grossly disproportionate sentence exacerbated by being labelled with ‘murder’ which is especially difficult for parole purposes. Thus, it is suggested that the UK has violated his CRPD rights and is perpetuating discriminatory customs and practices as opposed to supporting their modification or abolishment.
It is not known whether Alex’s application to the CRPD will be accepted – addressing issues of murder was probably not in the forefront of the minds of the drafters of the Convention when it was written, but Alex’s is a case that highlights why there needs to be a change of approach to joint enterprise and autism in the CJS. A Westminster Commission on Joint Enterprise law and policy launched on 12 November 2024. On 6 December 2024 the Law Commission announced a review on the law on homicide and sentencing. A few weeks earlier, the most senior former judges in England and Wales called on the government to reverse the trend of imposing ever longer sentences, giving warning that radical solutions are needed to address the acute crisis in prisons.
Alex Henry’s case may be the answer: audit the prisons and release those offenders wrongly convicted under ‘joint enterprise’, especially those with autism.
Demonstrators outside the Supreme Court in March 2017 appealing for justice for Alex Henry and others convicted of murder under the ‘joint enterprise’ label.
Slavny-Cross, R et al, Autism and the criminal justice system: An analysis of 93 cases, Autism Research, 15 March 2022
Equality and Human Rights Commission, Inclusive justice: a system designed for all, June 2020
CPS Joint Enterprise National Monitoring Scheme 2024-25
Woodhouse, E, Hollingdale, J, Davies, L et al, ‘Identification and support of autistic individuals within the UK Criminal Justice System: a practical approach based upon professional consensus with input from lived experience’, BMC Med 22, 157 (2024)
Crown Prosecution Service Joint Enterprise Pilot 2023: Data Analysis, CPS, 29 September 2023
Centre for Crime and Justice Studies, Nisha Waller, The legal dragnet: Joint enterprise law and its implications, September 2024
Law Commission review of the law relating to homicide offences, including full and partial defences, and the existing sentencing framework for murder. The Law Commission is inviting responses to its call for evidence until 31 October 2025.
Felicity is counsel for Alex Henry instructed by Dean Kingham of Reece Thomas Watson Solicitors. She is also counsel assisting the Westminster Commission on Joint Enterprise.
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