Sam Stein QC Talks At The Bristol University Law Conference

The UK Supreme Court has given leave in the case of R v Jogee to consider the liability of secondary parties in allegations of joint enterprise. The Supreme Court may be persuaded to join other appeals to R v Jogee; if you want to discuss a possible appeal that relates to joint enterprise liability then ring Mansfield Chambers on 02074067550 or me on 07958331999.

Below is the text of my recent talk to the Bristol University Law Conference that considers joint enterprise and raises questions about the double standards used to deal with youths in the criminal justice system.

Sam Stein QC
March 2015


You will forgive my natural inclination, derived from my professional life, to want to hammer home a point or thump the lectern. You will I hope appreciate that most of my audiences are drafted in and have no choice but to listen. It is therefore rare for me to speak to people who have attended voluntarily.

I of course will follow the sage advice to write or talk about what you know. I will, therefore, speak from my experience of law in practice and why it seems to me that the demands of the democratic process tends to lead to a double standard in the way that we deal with young people caught up in the criminal justice system.

As we are in an academic setting let me say therefore that my 'thesis' is that young defendants are given no or little true consideration of the effect of their youth, yet we are providing a different but welcome understanding of youth if the young person is a witness.
In many estates and the poorer areas youngsters live and are governed by their own sets of rules and their own sense of morality.

Many youths I have represented place loyalty to each other, their own sense of morality and even their own sense of justice from within their own community far above the control of the state.
Add to the above problems the additional factors that, sadly, many such defendants are petty criminals of one type or another (engaging in shoplifting, drug taking or dealing, underage drinking and underage sex) and in the age bracket of 13-21.

In one such case where I appeared for a 13 year old the youngest defendant was 11. In that case the defendants were often found running around the Old Bailey; despite every attempt by each legal team involved to try and make sure they understood what was going on and the seriousness of their position they could not and did not 'get it'.

These youths [normally boys, who make up well over 90% of youths in custody] too often bring with them the baggage of gang membership or association with gangs and their lifestyles are limited to, what we would think, are unhealthy associations with their peers.

88% of the young men in custody have been excluded from school at some point, 69% are likely to re-offend due to their substance misuse and 17% have a statement of special educational need.

These youngsters do not reason as we do and I suggest have a limited ability to understand the consequences of their own actions.

All this leads to a distorted sense of what is right and what is fair amongst young people.

Gangs include transient groups of children and young people who gather together to have a sense of belonging and protection, through numbers, from other youngsters from bordering areas - turf wars. Gangs are also trading base for the proceeds of petty offending involving thefts, robbery and 'soft' drugs.
Yet politicians like the Prime Minister, David Cameron say:

There will be an "all out war on gangs and gang culture" and "it is a major criminal disease that has infested the streets and estates across our country".

More recently Boris Johnson announced "it is time we gave these gang members a clear ultimatum - the police know who you are and if anyone in the gang steps out of line then every member will face consequences" in recently proposing what was described as a hard-line US style crackdown under which every gang member will face punishment if one of their ranks commits a violent offence. A presume guilty and prove innocent measure.

And the state trumpets the effectiveness of the principle of joint enterprise a legal principle that seeks to confer 'joint' responsibility for crime committed in a group.

Detective Chief Inspector John McFarlane said: “The law on joint enterprise is clear and unforgiving – if you are with the knife man in a murder case you too could be found guilty and sent to prison.”

This legal principle, 'joint enterprise' says if a defendant foresaw that in the course of say, a robbery, that one of the his mates might use the knife to cause the robbery victim really serious injury with intent to do so then he would be guilty of murder. Despite not wanting himself to cause death or really serious harm.

The same principle is, of course, also used routinely to prosecute youths for being with another who uses violence without death being the result.

Let me give you some examples from real cases:

Five teenagers, four boys and a girl, out on a Saturday night. Two of the boys happen across a man sleeping rough. They start to kick him, egging each other on. The remaining three sit on a nearby wall and watch. The girl removes her mobile phone from her bag and films the action. Is she encouraging or supporting the violence?

Ten young men, two of whom are known to be armed with knives, cycle through their locality on the lookout for any stray members of a rival gang. Spying a police car, they turn off the main road into a cul-de-sac, where by chance they come across the thirteen-year-old brother of a former gang member. Some of the ten are heard to shout ‘leave it’, but none of them leave the scene. One of their number, never identified, stabs the young boy.

A group of boys decide to confront another group – one of whom has been ‘disrespecting’ a boy from the first group. That boy has taken along with him a golf club. During the ensuing fight, the golf club snaps in two and the victim is stabbed through the heart with the broken golf club.

Two young men decide to rob victim in a quiet corner of a park. The victim fights back when a third young man, a friend of the first two, keeping an eye on events turns up with a knife and stabs the victim. All are charged with robbery and murder.

Finally a case where a boy set out to bully another youth. He threatens to take the others phone. The two argue and look as though they are about to fight. Another boy decides to pick up a stone in order to help his mate the bully. The lad being bullied runs away and falls under a bus and dies.

But joint enterprise is a principle of law that applies to all whether adults, young people and children over the age of 10.

But the law also says that youths below 18 years of age cannot vote in this country – as they are not deemed mature enough.

Youths cannot take a loan, as they are not considered responsible enough.
Youth cannot buy a lottery ticket. Youths cannot buy alcohol or adult material as they are not capable of controlling themselves enough.

Youths cannot get married without a parent’s permission because they are not dependable enough.
Youths cannot buy a DVD or go to a film with an 18+ certification. Youths cannot sue or be sued because they are not accountable enough.

And youths cannot sit on a jury until they are eighteen. Youths are just not old enough. Youths do not have enough life experience to sit in judgment over the actions of others.
The Youth Justice and Criminal Evidence Act 1999 (YJCEA) introduced a range of measures that can be used to facilitate the giving of evidence by vulnerable and intimidated witnesses. The measures are collectively known as "Special Measures" and are subject to the discretion of the court.

Vulnerable witnesses are defined by section 16 YJCEA as:

All child witnesses (under 18) also means that a youth is automatically qualified as a vulnerable person if they are a witness in a criminal case.

The 2013 Criminal Practice Directions supports the court's powers to impose restrictions on the advocate where there is a risk of the young or otherwise vulnerable witness failing to understand. These sorts of special measure protections when enacted were clearly brought in to assist the witnesses and protect them from the rigours of the court process but they also show an understanding of how different are for the young and by statutory definition the 'vulnerable'.

But when these special measures were brought in they deliberately excluded defendants from the use of these protections. The case law saying that it was Parliament’s clear intention that defendants should be excluded from the provisions of YJCEA 1999

Further when the courts enacted protection for vulnerable witnesses in the form of intermediaries to assist in the communication with vulnerable witnesses the defendants including youths were yet again excluded from that protection. This has been amended.

So we have a demonstration of sound bite politics and sound bite legislation that shows that the politicians can say they are being tough on crime and protecting the victims of crime.
Yet as we have seen the state prosecutes children and young people for serious crimes on the basis that they say that these youngsters, despite their lack of legal competence, have enough maturity, responsibility, control, accountability, common sense and life experience to foresee the very actions of their friends.

The principle of 'joint enterprise' has been the subject of rigorous examination by academics and Parliaments Justice Committee which has now twice recommended that the law be reconsidered in particular the 'appropriateness of the threshold of foresight in establishing the culpability of secondary parties.

Yet the Lord Chancellor, Chris Grayling has deferred any such consideration until after the general election. It's not hard to see why. A possibly sympathetic review of a harsh principle of law that leads to too many youths prosecuted for being present when a crime is committed would not be a good sound bite. 'Soft on crime and soft on the causes of crime' would not be quote that a political party would want when facing such a key election.

But this is not the only problem that youths within the criminal justice system face and where politics and the political imperative of the democratic system appears to come first. We are currently dealing with the devastation being caused to the criminal justice system by the cuts to legal aid and by the limitation on the number of legal aid contracts to be awarded in the future leading to large-scale legal aid providers. This measure sadly surviving the recent Judicial Review.

We all want a good quality justice system and this will never be cheap. We also all want to make financial savings. Cutting the legal aid budget has with it many real effects. Lawyers who want to keep a business open will have to have a 'pile em high and stack them up' mentality to cases. The hard cases involving the youths and vulnerable clients have no special provision or protection within the system despite the fact that their cases are the most expensive, time consuming and complex.

Recently the Ministry of Justice, headed up by the Justice Secretary, Chris Grayling has declined to review the cuts to legal aid and their effect on children; this review had been confidentially proposed by the Conservatives coalition partners in Simon Hughes speech on the eve of his parties conference.

But do people want potentially sympathetic reviews of laws that are useful in targeting youth crime and in particular youth gangs? Do people want to have laws that equally protect vulnerable witnesses apply to vulnerable defendants? Do people want to have reviews of the effect of budgetary cuts on the provision of legal services to young people? My view is that if they don't they should.

Back in 2009 Sir Aynsley-Green, who was at that time described as the 'children's Tsar', stated that the "demonization and lack of empathy for young people is a major issue for England." I would suggest that this is ongoing today.

What I see in my work is an ever increasing sense of youth isolation and alienation. Cases are distorted by youths and their loyalties to each other and often the inability of a young person to explain why they were where there were at the time of the incident/stabbing. Yet all too often the explanation is where on earth else would they be?

The public should be keen to explore the questions that I have raised, the politicians should be able to find a better way of establishing a dialogue with the voters through the operation of the democratic process so that overall we may find a better and more responsible way of dealing with the youths within the youth justice system .

Law reform is not just about enacting new laws it is also about changing old laws and rethinking legal principles. Law reform is also about being fair at the start and not just enacting a law that seeks to protect only vulnerable witnesses but also decide when creating new laws that it will from the beginning also serve to protect vulnerable defendants. Law reform should also clearly use the same principles when dealing with youths across the board. It is unfair and not what the public should want to decide that children do not have legal competence or capacity to vote, have sex or sit on jury but use a principle of law called joint enterprise to prosecute adults and youths alike. Finally it is unfair that children seem caught up in the political games engendered by politicians who need a good sound bite to appear resolute on crime.

Sam Stein QC
Mansfield Chambers
Bristol Law Conference
March 27th 2015