Was the BBC’s legal drama ‘Common’ a missed opportunity?

Common-BBC-cast

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.

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7 thoughts on “Was the BBC’s legal drama ‘Common’ a missed opportunity?

  1. hindsight18

    I watched it and share your concerns and I am not a lawyer. Too many flaws – no legal representation during interview, threats re parents, state witness more culpable etc etc. I am surprised the drama script was not seen by a lawyer to ensure accuracy.

    I also watched a documentary on the same issue and again was not impressed with that. It is an important subject and so far has not been tackled properly.

    Reply
    1. David Allan (@DavidAllanLegal)

      Thanks, yes I saw comment elsewhere that no lawyer’s name appears in the credits as a ‘technical consultant’ or similar. I personally don’t mind dramas taking a few liberties for the sake of a good story but when the drama is presented on the basis that it reflects the reality, as ‘Common’ was, for example with the clips of real mums whose children are in prison at the end, then I think it really has to make sure the picture it paints is an accurate one.

      Reply
  2. Andrew

    It was joint-enterprise that put two of the bastards who attacked Stephen Laurence down for murder, and those who think it should be abolished might want to reflect on that.

    Reply
  3. Andrew

    Stephen Lawrence, sorry about the typo.

    The point is of course that neither of those men is alleged to have been the actual knifeman.

    Reply
  4. Dan Bunting

    Yes, it was. I think on the basis that they couldn’t prove who was the knife man…

    Andrew – as always you hit the nail on the head. I’ve got grave concerns about the (mis)use of joint enterprise, but these need to be addressed through cases such as that rather than ‘Common’ where there is a sympathetic (and innocent) person in the frame.

    I think the actual problem is the mandatory life sentence – it raises the stakes and often causes injustice.

    One way out may be to reintroduce the ‘felony murder’ rule as a separate offence. So, if a jury concludes that there was the intent to kill/cause serious harm from the individual who took part in the attack, then this can be murder, but otherwise if they were part of the common enterprise, then a conviction for a lesser offence, and one without a mandatory life sentence.

    I’d need to think about it more, but there must be some way of making it fairer!

    Reply
  5. Captain Sensible

    The drama also gave the impression that the police and prosecuting barrister were lazy and couldn’t really be bothered to ascertain the true facts. I’m no lawyer, but if I were then I would want to assess the involvement of each and every one of the defendants. If one of them confessed (as he did in the drama) then surely the judge should step and ask the prosecution to re-evaluate. Is that too much like common sense for our legal system ? I also thought it was too sympathetic towards those charged with joint enterprise and as someone has already said the little montage at the end laid bare the ‘political’ leanings of the writer.
    The follow up documentary the following evening did not make anything clearer and just added to the confusion I’m afraid.

    Reply

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