Jogee: no winners in this case

An insight into what it’s like being a young defendant in a gang-related murder trial. Did Jogee change the ‘odds’? Is the doctrine still a stark reality?

On the streets, there is a code. But the courtroom also has a code: a strict one with few positives for a young person charged with murder. ‘The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises,’ said Lord Steyn in R v Powell and English [1997] UKHL 45. How does this statement fit with the realities of what has become a high-stakes game of Russian Roulette, where very few are acquitted and where there are ultimately no winners? Misplaced swagger and bravado played out on the streets of our towns and cities, predominantly by young men, is the start of their own undoing; the seed of joint enterprise has already been sown.

Remember that the immediate position before R v Jogee [2016] UKSC 8 was that the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon. One justification for this shift was a policy that the rise of gang crime had to be met with a robust jurisprudential response (see Lords Steyn and Hutton in Powell & English). The Metropolitan Police at the time produced a series of anti-gang violence posters warning any would-be member of a joint enterprise just how effective the doctrine could be as a tool to combat crime.

In Jogee, the Supreme Court identified the ‘wrong turn’ taken in R v Chan Wing-Siu [1985] AC 168 and Powell & English and recognised the ‘over extension in the law of murder and reduction in the law of manslaughter’ (Dennis Kavanagh, ‘The world post-Jogee’, Counsel April 2016).

But while the old approach to joint enterprise may have ended, the fear of gang violence and increased murders involving youths is still very much an issue of great public concern. What is it like being a young defendant (and their barrister) in these contentious cases – often from areas disproportionately affected by gang violence, and which come to assume national prominence?

‘Relief’ at being wrongly accused and desperate belief that ‘man can bust the case’ is not the reality for many. Being charged with murder along with your ‘bredren’ may be ‘fun’ at the beginning. The plan is to stick to the same story and see how things play out. That is a code used on the streets by the so-called ‘family’, but even blood-related families suffer from disloyalty and a break in the ranks. Many a young man with loose affiliation to a group, identified as a gang under the controversial gang matrix, have found themselves caught up in this public policy net of criminal liability. The setting in any crown court is formal, as one would expect, but the Old Bailey with all its splendour and history is an imposing place. Just to think, Ruth Ellis was sent to the gallows from this very building only 64 years ago. Twelve strangers hold a young man’s future in their hands; the noise of the streets is replaced with the drama and intensity of the courtroom. On the street, this young man may prize his reputation, but when that notoriety in the form of a criminal past is used to punch another hole in his defence (‘I was there but I didn’t know my friend had a knife’ or ‘It wasn’t me, I didn’t see who did it’) it doesn’t seem so great. He quickly begins to wish he was not in that YouTube video where ‘friends’ were singing about ‘shanks’ and ‘boring’ someone.

The cells in the ‘bowels’ of this majestic building are a hive of activity. Young men, all facing murder charges, file off to various courtrooms, handcuffed to their respective guards. The unspoken fear is palpable as each contemplates how they are going to perform under the intense pressure of questions from a prosecution barrister determined to show joint enterprise at work. In the moments before giving evidence, I look at my client’s hands. No, he’s not suffering from early stage Parkinson’s Disease. Fear has gripped him; the ‘game’ is now very real. In the witness box, struggling to say his full name in a voice loud enough to be heard across the courtroom by the jury, he is reminded by the judge to speak up.

The questions from me are easy enough to navigate but the barrage of questions by the prosecution leave him bamboozled and tongue tied, like a boxer taking too many blows to the head, unsure about the account rehearsed so many times in the confines of his prison cell. (He tells me after: ‘These lawyers have a way of talking and getting you to agree with them.’ How he wished he had paid more attention in his English lessons and read more books from the reading list. Street language is definitely out of place here.)

Now the jury has to consider the role he played. Has the fresh approach in Jogee saved him? ‘If D intended by associating with P or being present at the scene to assist/encourage/cause P to commit the crime (eg by contributing to the force of numbers in a hostile confrontation, or letting P know that D was there to provide back-up if needed) then D would be guilty (‘Jogee loose ends’, David Omerod and Karl Laird, Counsel May 2016).

Every court announcement potentially brings the life-changing moment and eventually we hear the cue for us to return to court. For weeks, family members of the accused have sat in the public gallery listening to every word. The deceased’s family have sat inside the courtroom, their raw pain visible but the need for justice the dominant emotion.

As the jury shuffles into court, the atmosphere is thick with the anticipation of a verdict. None of the defendants can bear to look up. They take what comfort they can from the floor beneath their gaze. It dawns on them that the words about to be uttered by the foreperson could forever alter the course of their futures, and those of their real families. ‘Guilty,’ utters the foreperson who looks straight ahead, no desire to look at the face of the young man who stabbed the victim. A gut-wrenching cry from the public gallery; his mother, who will not see her son at home again until he is a middle-aged man – if he survives the prison experience.

My own client is relieved: his focus is on himself with not even an acknowledgement of his friend’s plight. He has just been handed his life back. I tell him to hit the reset button; at the age of just 19, it’s not too late to start being the person he might have been. He is one of the ‘lucky’ ones: not captured by his past indiscretions, joint enterprise and a poor performance in the witness box.

For the deceased’s family, it is not a victory. It might not even feel like justice from a system that promises a fair trial. The brutal fact is that there are no winners in these cases. The reality of a courtroom encounter on a charge of murder is a daunting one for a young person ill-equipped to deal with the emotional and legal complexities of a trial in an intimidating forum. Their exposure to this discreet element of youth culture may have been a gamble too far. Unfulfilled potential in a graveyard or behind prison bars are the realities of this choice. Meanwhile, the public’s frustration and anger at this cycle of mindless killings mounts.

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Stephen Akinsanya

Stephen Akinsanya is a criminal barrister specialising in serious crime at all levels, practising from Great James Street Chambers. He is a passionate advocate against youth violence. This is his second article for Counsel.