Did anyone watch Jimmy McGovern’s drama ‘Common’ on BBC1 last Sunday? I did, but not without serious reservations. I don’t really like TV legal dramas, particularly not the earnest, moralising ones: they tend to miss the subtle shades-of-grey ethical questions that real trials throw up, and the legal howlers in them are just too cringeable.
‘Common’ was not without mistakes. Defence counsel addressing a High Court Judge repeatedly as ‘Your Honour’ instead of ‘My Lord’ was the sort of clanger that, had it occurred in an actual court room, would have led to other counsel wanting to gnaw their wigs to ease the embarrassment.
But what put me off ‘Common’ in particular was its billing as an exploration of the legal concept of ‘joint enterprise’. To explain: since 1861 it has been the law that anyone who assists or encourages the commission of a crime can be tried just as if they had committed the crime themselves. Thus the gang-leader can be tried for the murder of a witness even though he only paid the hitman who ultimately pulled the trigger (‘encouragement’). The getaway driver can be tried for armed robbery even though he only waited outside while the rest of the gang carried the guns and grabbed the bank notes (‘assisting’). What do you do, though, when a suspect says: ‘I only thought my guy was going to beat the witness up’ or ‘I didn’t know the rest of my gang had guns’? It is when someone’s actions assist or encourage a crime, but they say they only intended a lesser offence to be committed, that the rules as to ‘joint enterprise’ come in.
And that is where, for me, ‘Common’ fell down. Because it proceeded on the basis that its protagonist, a likeable 17 year old called ‘Johnjo’, hadn’t intended that a crime be committed at all.
At the start of the programme Johnjo agrees to drive his mate Tony and others to a pizza shop where, unbeknown to him, they all plan to beat someone up. During the assault one of them, Kieran, fatally stabs a bystander. Johnjo then drives them away, still none the wiser as to what has transpired.
On the factual premise of the programme, therefore, Johnjo was not guilty of the murder, or the assault, because he had no inkling that either offence was going to be committed.
Despite that, the programme makers then used Johnjo’s predicament to include comments from various characters about how awful ‘joint enterprise’ was – but Johnjo’s case wasn’t about ‘joint enterprise’. Had a jury known all the facts and been directed about ‘joint enterprise’ correctly they would have returned a unanimous verdict of Not Guilty on him before trial counsel had blown the froth off their coffee.
The greatest shame is that it would have been so easy to rewrite the script in a way that would have highlighted the potential injustice that ‘joint enterprise’ does create.
The way to do that would have been to have written the drama from the point of view of Johnjo’s mate Tony. As I say, Tony, Kieran and others planned to beat someone up in the pizza shop. Had Tony known that Kieran was carrying a knife, and had Tony foreseen that during the assault Kieran might stab someone, intending to kill them or at least seriously injure them, then Tony would also have been guilty of the murder committed by Kieran – because Tony would have had the requisite degree of foresight and because the murder took place during Tony and Kieran’s illegal ‘joint enterprise’. That is how ‘joint enterprise’ works.
In order to be guilty of murder committed by your own hand you must intend to kill, or at least intend to inflict really serious injury. However, you can be guilty of a murder committed by an accomplice, but which you assisted or encouraged – provided you both intend to commit a crime – and you at least foresee the possibility that during that crime your accomplice might commit a murder with murderous intent.
In other words, you can be guilty of ‘joint enterprise’ murder without you yourself intending that anyone should be seriously hurt.
To what extent does such ‘joint enterprise’ liability constitute an injustice? Some might say that if you commit a crime with a homicidal maniac armed with a deadly weapon you deserve all you get. Others might say: you deserve to go to prison, certainly, but not to be convicted of murder.
But whatever the rights and wrongs, it is situations like the one I’ve just outlined, situations where people who richly deserve to spend, say three years in prison, are instead looking at sentences of, say, 20 years, that are exactly the kind of shades-of-grey moral questions that actually arise in our criminal justice system.
The sad thing is that those real-life situations are too subtle, too full of moral ambiguity, involving characters whose own repellent actions have put them too far beyond mainstream ethics, for them to be of any interest to TV dramatists.
Guest post, by David Allan, barrister.