Make Joint Enterprise Count

There were two major news stories this week that prove once again that the Criminal Justice System upon which we rely makes the most appalling mistakes. The first was that of Kathleen Folbigg?from Australia, the second the death of Hugh Callaghan. Both victims of dreadful miscarriages. Both vilified by their national press for many years.

Both had proclaimed their innocence whilst in prison, both could have been executed had Capital Punishment existed at the time of the incidents for which they were incarcerated. Both of them remind me why people fight to give a proper chance to those thousands in prison today for Joint Enterprise, who deserve the right to be heard.

Never Forget Their Faces

Kathleen was a mother of 4 young children who were each found to have died in the night, spread over a 10 year period from 1989 to 1999. She was charged with their murder in 2001 and convicted in 2003. Her defence was that the tragedies were a result of natural causes. The prosecution cited her diaries in which she expressed that her actions as a mother caused the loss of life as suggesting she was guilty. She received a 40 year sentence. Further medical evidence of her innocence was found and proof each one was a similar medical defect, but nevertheless her Appeal was rejected in 2019.

Now four years later additional research has shown she was innocent all the time, and so 20 years after being locked up this grieving mother can walk free, but she had been demonised as Australia’s worst ever serial killer, and shown in numerous TV programmes as an evil woman. She was however the victim of a failed system. This case was from Australia and not the UK but has echoes here.

Let us also remember Hugh Callaghan, one of those wrongly convicted of the Birmingham Pub Bombings in 1974. He has just died at the age of 93. The Birmingham bombings killed 21 people and injured 200 more. After the event, a group of 6 men were arrested as they were setting out to catch a ferry to Belfast, including Hugh who had gone to Birmingham New Street to wave them off. ?He had gone to repay a small debt to one of them who was a friend and stayed the day at his house playing with the children and then on to the station. Pressed into a dodgy confession by the police, he was trapped in prison for 16 years until journalistic endeavours had him freed. There was no evidence about his involvement at all, but he was convicted because he was a friend of a man accused, also innocent, and in the wrong place at the wrong time. The actual bombers were never found.

Good Intentions

After the Birmingham Six case a Royal Commission on Injustices led to the creation of the Criminal Cases Review Commission (CCRC) whose role would be to investigate reported miscarriages. The lessons from the cases of Hugh Callaghan and his co-defendants and those of the Guildford Four, also wrongly convicted of being bombers, would be learned. Juries it was agreed can make mistakes, and the Court of Appeal could also fail to resolve them. It has not appeared to work that way, and for those convicted under Joint Enterprise it most certainly does not.

There is always a public mood that impacts on actions. The pub bombs in Birmingham were part of an IRA campaign, the entire country craved prosecutions. The police picked up Irish suspects, the nation wanted them convicted. Kathleen’s four innocent children broke Australian hearts, and the mood was to find someone to blame. A wicked mother was ideal. The concept of “Beyond all reasonable doubt” can fly out of the window when a dramatic case is being heard. The establishment of the CCRC was to give a fair and quick way to resolve injustices identified. It is not working. Good intentions, poor outcomes, many reasons.

Missing Data

Joint Enterprise is a simple concept that has become twisted. The intention was to ensure that where more than one person was actively involved in a crime where there was significant harm, all involved could be deemed responsible. However it has been extended to sweep up all those who may have been involved even if they were not actively participating, or had any pre knowledge it would occur, or could have done anything to prevent it. Just being linked to friends has led to convictions even on murder charges. And this is where there are similarities to Kathleen and Hugh.

Hugh was convicted because one of the others in the group was someone he knew, and he went to see off at the station. Coerced into signing a “confession” he was convicted, whilst the others were guilty because they were sympathisers of the campaign for Home Rule. There was no evidence, indeed the Police evidence was more than dubious, some being forged, but they were a group of Irishmen and that sufficed. Now Joint Enterprise is targeted largely at black youths, where groups of friends are considered to be “gangs.” It was political then and it is now. Then being Irish implied terrorist, now being black suggests criminal gang member.

A lot of Kathleen’s case was based on her having written notes in her diary about her feeling of guilt at her children dying, not saying she killed them. Now in Joint Enterprise cases, the words texted by youths which may be bravado or exaggerated, and even the music to which they listen, is used to prove participation in murder cases. They do not have to be there, just to know people who may have been there to be convicted. The Supreme Court ruled 7 years ago that by reinterpreting Joint Enterprise the law had “taken a wrong turn”, yet few have reached the CCRC for reconsideration.

Furthermore, and crucially, there is limited data on the number of people locked up for murder under this category. In 2023, the digital age, it seems prison statistics are kept by someone with an abacus. Or it is deliberate disguising of disturbing data. There is no information on the ethnic origins of those inside, but a major independent study published last year showed that the black and ethnic communities are significantly over represented in those convicted under this dubious crime. This data is apparently now to be collated by the Ministry of Justice. One day. It is hard to fight for justice if you are denied the basic facts of what is actually going on.

Take Control Of The Exercise

Campaign group Joint Enterprise Not Guilty by Association (JENGbA) are now encouraging those with whom they have contact within prisons to undertake an audit of numbers on JE on their wings and to forward those figures to them. There is also a major report undertaken by Dr Louse Hewitt of the University of Greenwich on the progress, or lack, of cases going to the CCRC due out in July, where it will identify what has happened, or not happened, and why. It will pull no punches. Plus a Private Members Bill from Barry Sheerman MP and supported by MPs from all parties will be debated later this year which will assist those covered by the Supreme Court decision. The JENGbA survey is vital to counter the abysmal failure, in my view deliberate, of the Government to monitor what is happening in the Criminal Justice System right now. It seems that there are far more people in prison for murder than murders that have been committed because so many are swept up in this open ended charge.

Hugh Callaghan waited 16 years for justice, Kathleen Folbigg 20. We have people sitting in cells today who should not be there. We have families separated and broken. We have lives destroyed. We have self-harm and suicides of people who should be free.

I intend to be around in 20 years’ time, but do not want to be sitting in my rocking chair in 2043 reading that people locked up today are finally being pardoned and released. It needs resolving now.

#criminaljustice #britain