Ever heard of Joint Enterprise? Neither had we…
I used to say that the 12th March 2014 was the worst day of my life. It was 4pm and after days of waiting in the hallways of the Old Bailey, we were summoned into the court room to hear the verdict.
I struggled to regain the confidence I had felt only days ago, as I looked around the Court and took in my surroundings. That cold hard bench where I had sat every day for the past six weeks, listening to every meticulous detail. Those 47 seconds and the painstaking efforts of the prosecution to try and find some detail which did not match my brother’s scrutinised account. I should have felt confident, after all I knew as the jury must surely know too, there was more than enough doubt and where there was doubt, there was innocence.
47 seconds which changed everything
The events which lead us to this moment were born from a peaceful summer’s afternoon in August 2013. My brother, Alex Henry was out shopping in Ealing Broadway, West London, with three friends – Janhelle Grant-Murray, Younis Tayyib and Cameron Ferguson. Younis left the group to meet a friend near his home, which was only a few short minutes from the town centre and the others agreed to meet him outside his address once they had finished shopping.
Not long after Younis had left the group, Janhelle also decided to proceed to Younis’ address and wait for the group there. Walking down Younis’ road alone, Janhelle was confronted by a group of four older men – Bourhane Khezihi, Taqui Khezihi, Oledapo Tajani and Leon Thompson. The groups were strangers to each other.
What was sparked from no more than a look, an air of aggression descended upon the group, triggering the swift departure of Janhelle, back down the road and towards the shopping centre once more. Walking back toward the shopping centre Janhelle noticed he was being followed by the group and, breaking into a run, was chased down the road.
Bypassing Younis who had just arrived at the scene, Janhelle ran into the local Costcutter and after stealing a bottle of wine, he returned to the scene brandishing the bottle at his side. In retaliation, Bourhane removed his belt to use as a weapon if necessary and the confrontation intensified.
Just another fight
The escalating aggression threatened to spill over into violence as the standoff continued for over 10 minutes. Meanwhile Alex and Cameron had finished shopping and were making their way up to Younis’ address. Alex seeing Janhelle with a bottle in his hands, surrounded by an unfamiliar group of men, sprinted into his defence and the violence erupted around him.
Within 47 seconds it was all over, but in that short space of time: Oledapo took the bottle from Janhelle, Taqui lunged at Janhelle, Alex threw a phone at Taqui, Bourhane lashed his belt at Cameron, Younis put Bourhane in a headlock, Taqui punched Janhelle, Cameron fled the scene down Northcote road, Younis released Bourhane, Bourhane punched Janhelle, Alex punched Bourhane, Alex and Janhelle fled the scene back into the shopping centre & Younis walked home with his mother who had left her house having heard the commotion.
What I haven’t yet mentioned is at some point during those few seconds, Cameron puts his hand inside his JD sports bag, takes hold of a knife and without removing the knife from the bag, stabs two people – Bourhane and Taqui Khezihi. Taqui later died of his injury.
The following two days after the killing, unlike Janhelle and Younis who handed themselves into custody, Alex avoided police to attend the twelve-week scan of his first child scheduled for the Friday, three days from then. However, on the Thursday afternoon Alex was traced, arrested and charged with murder under joint enterprise.
Traditionally to be liable for murder the perpetrator must physically cause the death of the victim, whether he pulled the trigger or wielded the knife. Moreover, they must do this while intending to kill or at the very least intending to cause really serious harm. This physical act of taking the life, coupled with the mental intent to commit it, are the two essential ingredients for a conviction of murder.
The archaic Joint Enterprise doctrine
However, it has also been known that many do not kill alone, but are in fact supported by another and this is known as joint enterprise. Joint Enterprise is a three-hundred-year old common law doctrine, and since it has not been enshrined in legislation it has been interpreted and reinterpreted over time, widening in application with each judgment. This doctrine encompasses the situation whereby a group of two of more people commit a crime (crime A) and during the course of committing the crime, a member of the party commits a further crime (crime B).
Those who participated in the first crime may not have planned or intended crime B, but so long as they foresaw the possibility that it might be committed, are liable for it. Therefore, under the joint enterprise doctrine, rather than intend harm the defendant merely needs to foresee the possibility that someone else might commit that harm, to be liable for it – even murder.
The usher boomed “All rise” and snapping my attention back to the Court, we stood respectfully for Judge Kennedy to enter and deliver our fate. My body shook and bile rose in my throat as twelve tired and tearful faces entered the Court – instantly we knew.
Guilty verdicts came back for all the boys except Younis Tayyib. Alex was sentenced to a mandatory minimum term of 19 years imprisonment along with Janhelle, while Cameron Ferguson was sentenced to 23 years.
Campaigning against an injust criminal system
Since that terrible day we joined JENGbA (Joint Enterprise Not Guilty by Association) and fought to change the joint enterprise law. We argued that evidence of foresight should never be enough to find someone liable for murder and instead it must be found that they intended to kill or to cause serious injury.
Finally, after six long years of campaigning, JENGbA were successful when on 18th February 2016, in the case of R v Jogee [2016] UKSC 8 the Supreme Court reformed joint enterprise. The Supreme Court, held that foresight is only evidence of intent rather than equivalent to it, and rather to be guilty of murder the Crown must prove that the defendant intended to assist or encourage in commission of the offence, with knowledge of any existing facts necessary which make the offence criminal.
However, this success was not as great as we had first thought as those who had already been convicted under the law would only be granted an appeal if they could prove there had been a “substantial injustice” in their case – a very high legal burden.
Alex’s appeal
Despite this, we felt sure that Alex would have a successful appeal as in 2015, he was diagnosed with Autism by leading expert Prof Simon Baron Cohen of Cambridge University. Alex has always had social communication difficulties which affects the way he interprets the emotions and intentions of other people, making it very difficult for him to predict behaviours. This ability to understand the intentions of others and predict what they would or might do is fundamental to joint enterprise liability. Since he was diagnosed after his conviction, this diagnosis was fresh evidence.
justice can and will knowingly be denied by those at the highest levels
On 11th August 2017, Alex’s permission to appeal was refused by the Court of Appeal in Grant-Murray [2017] EWCA Crim 1228. Since the Supreme Court decision in Jogee, none of the 800 men, women and children currently supported by JENGbA have successfully appealed their conviction.
I used to say that the 12th March 2014 was the worst day of my life but whilst I had lost faith in a particular law, I believed we had a rational justice system who would put right the wrongs. The events of 11th August 2017 surpassed those of its predecessor. It taught me that justice can and will knowingly be denied by those at the highest levels and that it won’t be ours unless we fight for it against them and this system of injustice.
This guest blog was written by Charlotte May Henry, whose brother Alex was convicted of murder under Joint Enterprise. She now studies law and campaigns with JENGbA – Joint Enterprise Not Guilty by Association to free her brother. You can follow Charlotte on Twitter. This article is part of a series of guest blogs written by Injustice Documentary’s interviewees and other criminal justice reformers and experts. If you are interested in submitting a piece, please contact us.
