Tag Archives: Common

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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Common – (Legal) Review of BBC Drama

Common-BBC-cast

Introduction

Jimmy McGovern is an absolutely cracking writer, as anyone who has seen his work can tell you. On Sunday 6th July 2014 he turned his hand to the controversial ‘joint enterprise’ law with a drama called ‘Common‘.

We have a factsheet on joint enterprise, which is a notoriously complex area of law, if you want a bit of background.

 

Plot

The drama opens as Johnjo borrows Patrick (his brother) car to drive a cousin, Tony, and two friends (Kieran and Colin) for a pizza, an ordinary night out for many people up and down the land, when Kieran stabs another boy – Thomas Ward. Johnjo drives them away as he and the others realise what has happened, and that Thomas was not going to live.

We then switch to the family of Thomas, who have to deal with their loss. But he (and his family) is not the only victim of the events of the night – Johnjo and his family are about to be ripped apart as well. He is a decent lad, and wants to go to the police to give his side to the story before the police come to him (good advice), but is warned about grassing,

He then finds out from his cousin that the other three were going to the pizza place with the aim of ‘sorting out’ (but not killing) someone. This wasn’t the one who was killed, but a different one. Kieran, one of the four, had a knife and stabbed Thomas.

It doesn’t take a great deal of detective work before the police begin to crack the case. CCTV shows that it was Patrick’s car and he is arrested. His alibi checks out and is quickly released, but he now knows that Johnjo was involved somewhere along the line and this blows up.

Johnjo’s Mum gives the worst advice imaginable – you’ve done nothing wrong so you don’t need a lawyer. His Dad is a bit more sensible (although he seems to think you wouldn’t get a good criminal lawyer on a Sunday).

Unfortunately for Johnjo, he listens to Mum and goes off to the police station to reveal all, on his own, without a solicitor or appropriate adult. DI Hastings does the ‘good cop/bad cop’ routine all by himself. Johnjo reveals all that happened. His Mum was wrong – the police don’t thank him for assistance and telling the truth and send him on his way … he is charged and kept in custody.

The other boys are picked up and all, sensibly, say ‘no comment’ in their interview. The guy in the pizza place (Hugo Davis) is asked to do an ID parade, but there’s an ulterior motive – he’s in the frame too, due to a phone call from him to Tony before and after the killing and is charged with murder.

We then get to see, finally, what happened in the pizza place – they all pile in to get Albert Flanagan, there’s a bit of violence, but the and Kieran sees Thomas eyeing him up and stabs him.

We then start the courtroom drama properly. Johnjo’s barrister does what appears to be an ‘application to dismiss’ to get him out of the case which is, needless to say, unsuccessful. There is then a meeting of all the defendants and lawyers downstairs in the cells. And at this point is gets a bit more dubious legally – a plea bargain is on the table – Kieran pleads to murder and all the others to GBH and that would be enough.

Johnjo’s Dad says take it, his mum says no. Johnjo is under pressure from all sides and, after some not too unsubtle threats from his codefendants, agrees to take the deal. Kieran gets life with a minimum term of 24 years. Colin and Anthony get 6 years and Johnjo 5 years 4 months.

 

Legal Issues Raised

A couple of problems you’d have spotted if you were a lawyer (and some you would have if you weren’t):

  • DI Hastings wouldn’t have told Margaret Ward that an arrest was imminent, and certainly would have said who it was.
  • As soon as Johnjo started the conversations with DI Hastings, he should probably have stopped and cautioned him (but, this doesn’t always happen)
  • As Johnjo is 17, an appropriate adult is compulsory (the law on that changed relatively recently however – you can see the High Court judgment here)
  • Johnjo would not have been allowed to keep his phone with him in the police interview
  • Threatening to arrest Johnjo’s parents is not something the police should do. It’s something that do do, but wouldn’t do in an interview which is recorded
  • A Magistrates’ Court is not able to grant bail and the Court would not adjourn for two weeks back there – it would go straight off to the Crown Court
  • The ID parade was not conducted properly – having DI Hastings there with a bit of a prompt and threat, as well as the other safeguards not being there, means that it should be ruled inadmissible (it’s a murder though, so who knows?)
  • The police don’t charge, and then uncharge, people, at least in the way shown in the interview.
  • It’s pretty rare nowadays that you’d get four people wearing a suit
  • The barrister for Johnjo would have been slapped down pretty quickly with his speech on joint enterprise
  • The Judge is a High Court Judge and is called ‘My Lord’ not ‘Your Honour’
  • The families of the victim and the defendants would not be wondering around the same cafe together, certainly not in a murder case
  • The High Court Judge seems to think that joint enterprise is a rule made by Parliament, which it never has been – it’s a judge-made law that can be unmade by Judges
  • Lawyers aren’t allowed mobile phones in the Court cells
  • The Prosecutor would not come down to the cells to engage in plea bargaining at all. Ever. Not in a million years.
  • The High Court Judge almost gets the name of the statute right when sentencing – it’s the Powers of Criminal Courts (Sentencing) Act 2000

But, notwithstanding that, it was actually a pretty accurate view of how a criminal case works, and didn’t (as many criminal TV shows do) make me cringe when watching it.

 

Review

This isn’t a documentary and, as I’ve said before, a legal drama that was based on real life would be incredibly dull. It’s a tightly written drama (as you’d expect) and very well acted and directed. It’s certainly one that tugs on your heartstrings.

It was good that they showed the story from both sides, and the pain that the victim’s family went through isn’t glossed over in any way (even if the reconciliation at the end was a bit twee (or as twee as it can be on a northern council estate).

Joint enterprise isn’t a ‘new’ thing (although it has been used a lot more recently) and whilst it applies to every crime, it is disproportionately used in murder cases. It is also more acute due to the fact that murder carries a mandatory life sentence and you can be found guilty of murder not only without intending to kill, but in some cases without intending to cause really serious harm – merely foreseeing that death might happen is sufficient.

Anyone with experience of the criminal justice system knows the unfairness that can be caused by joint enterprise, but this didn’t need to be stated quite so clearly all the time (I got a little sick of the words ‘joint enterprise’ by the end).

 

Is it accurate?

Yes. Sadly. Knowing what happened in the pizza place, it is clear that Kieran is guilty of the murder of Thomas and GBH of Albie. Tony and Colin are guilty of GBH. Johnjo is not guilty of anything.

Actually, the most unrealistic aspect of this is the prosecution agreeing to drop the murder charge against  the three in return for pleas to GBH. In a case such as this, I would imagine that it would go to trial  and it would not surprise me if Kieran, Tony and Colin were found guilty of murder. Johnjo might be luckier, but I wouldn’t be that surprised if he was convicted also.

Picking one case that I have read recently , Mitchell & Ballantyne [2011] EWCA Crim 2552 shows that the scenario in ‘Common’ is not in any way fanciful.

The other issue that it did raise is the iniquity than can sometimes be seen by ‘plea bargaining’. Officially it doesn’t exist in England and Wales, in practice it is rampant. Here, Johnjo had no real alternative but to plead guilty – out in 2½ years at the age of 20, with the possibility of building something of your life at least, versus life with a 20 year tariff (as he was 17 at the time) – meaning, in reality, that he would not be out till he was in his early 40s (if he was lucky) with no real chance of building any kind of life.

Faced with that, who wouldn’t take it?