The UK’s most senior judges will rule this month on the controversial law of joint enterprise. It was used to convict the killers of Stephen Lawrence, stabbed to death in a racist attack in south London in 1993. The law says that someone who encourages an offence can be just as guilty as the perpetrator. But critics say the way it is being used by police and prosecutors is causing injustices. The Law Commission, which advises the Government on reform, described it as inadequate, and the campaign group Joint Enterprise Not Guilty by Association (JENGbA) argues it has led to widespread miscarriages of justice. Police say it is vital to combat gang violence. MPs on the Justice Select Committee have twice in the past three years criticised its operation and have called for a review, particularly in murder cases. Sally Halsall witnessed its use first hand. Police used the law to arrest and charge her son Alex with murder. He was jailed for 19 years even though someone else confessed to it. Here she describes its devastating impact.
Today more than 4,500 young men and women, and even children, are serving long sentences, usually life, for crimes they say they didn’t commit; they are languishing in prison with no hope of early parole. My son Alex is one of them. On Wednesday 6 August 2013 Alex (then 20) was shopping in Ealing, west London, with three boys, two of whom – Younis Tayyib and Janhelle Grant-Murray – he had been friends with since he was 11. Alex had known the third boy, Cameron Ferguson, for less than a year. At some point Janhelle and Younis decided to go back to Younis’s house, a few minutes away. Outside, Janhelle was confronted by four older boys: brothers Bourhane and Taqui Khezihi, Dapo Tajani and Leon Thompson. All were strangers to him.
Alex and Cameron were making their way to Younis’s home. Alex spotted Janhelle was in trouble and ran to help. At 5ft 2in and of slight build Alex was considerably smaller than his friend’s assailants. He hovered on the edge, not knowing what to do; picking up someone else’s mobile, he threw it at one of them. He also threw a single punch at one of the men, but the judge later ruled this was self-defence. Cameron also joined in. The violence lasted 47 seconds but in that time Cameron had grabbed a knife hidden inside his bag and stabbed Taqui and Bourhane through it before fleeing. The remaining boys, including the victims, left the scene unaware what had happened. Taqui’s injury proved fatal.
I still lie awake remembering the night the police called saying Alex had been arrested for murder and hearing Alex’s screaming “Mummy, Mummy!” like a small child when I was put through to his cell. I said if he told the truth it would be OK. They would know he didn’t do it. I contacted Gloria Morrison who runs JENGbA (Joint Enterprise Not Guilty by Association). The hard facts she gave me ended my hopes that this was a terrible mistake.
The truth quickly dawned. The police didn’t care who wielded the knife. They had them all and they would get more or less the same sentence. Alex’s sister, Charlotte, and I were devastated. We joined the growing army of JENGbA families fighting for their loved ones. I studied the facts. Most young people charged under the joint enterprise law are found guilty. It’s about proving someone knew that someone else might commit the crime. How can you defend against an assumption? As the former Appeal Court judge Sir Anthony Hooper said: “Proving a lack of knowledge is not easy as you can never fully know what another person did or did not know.” Anyone with common sense can see that a law like this cannot possibly result in a fair trial or justice.
The Old Bailey trial started in February 2014 and lasted six weeks. Midway, Cameron Ferguson changed his plea to guilty and admitted the stabbings. We were overjoyed. Surely Alex would come home now? After four days’ deliberation the jury announced their verdict. Looking on, my daughter and I held each other. The young juror who usually smiled at us had been crying. Instantly I knew. I couldn’t hear the verdict. It felt like drowning. All I could hear were screams and I felt myself falling. I looked up and asked Charlotte: “Did they say guilty? Was that for Alex? Are you sure?” Unable to make out her words I kept repeating myself. Guilty verdicts came back for all the boys except Younis Tayyib. That night Charlotte and I wanted to fall asleep and never wake up, because we knew that if we did the awful reality would hit us again. A year on we still wake to such mornings. We get up, go to work, fight the tears. Then I feel guilty because I am lucky; my son is still alive.
A month later, sentencing Alex to 19 years, the judge said he was guilty of “knowing” that someone else had a knife and of “knowing” they might use it. The prosecution argued “friends tell each other everything”. Janhelle also got 19 years while Cameron Ferguson got 23, after the court heard he “was on a frolic of his own”. For the first few months after the verdict I felt like the world, the Government and every person I passed on the street had turned against us. It was Charlotte who kept me going. Nightmares, horrific and vivid, were so bad that we had to sleep side by side. Waking was no better.
A judicial system as back to front as this mocks justice. The trauma of witnessing it returns to me in waves of angry tears. I tortured myself with questions about what more I could have done. Should Alex not have defended his friend? Undoubtedly he should have been more cautious about his friendships. But Alex would never listen to me. Like most children he had the “terrible twos” but his tantrums seemed to go on and on. He was seven when his father and I separated and the tantrums became meltdowns. He was bullied terribly at primary school to the extent that he “accidentally” broke his leg. Eventually we placed him in a small private school but they struggled with him. He never settled. Gradually I lost confidence, torn between my instinct and the conflicting views of family and “experts”, who blamed his “bad” behaviour on his parents’ divorce, a lack of sleep, my lack of discipline, or the fact that I worked.
I was exhausted. I returned to education to study psychology to help me understand. Alex was nine when I started my PhD into school bullying. I was not able to get him help; I simply predicted the path ahead.
At 13 he was expelled. I pleaded for help but no one listened. Meanwhile he was hanging out on the streets. Everyone said: “You need to talk to him.” I felt inadequate because I couldn’t even get him to sit down and talk. He would change the subject or, if pressed, get upset and leave. Often I would end up crying, pleading with him to stop. He’d look panicked and puzzled, hug me and say “Why are you crying, Mum?” as though he really didn’t know.
When we launched a campaign to free Alex, letters from Parliament and from young people similarly jailed began arriving. Support has been overwhelming and unexpected. I realised then that just maybe some good might come out of this. I hadn’t expected to feel part of a caring society again. Last December Alex’s appeal was refused. It felt as if they had taken him from us again. We are now appealing against the refusal.
It was at this time that a woman emailed, after reading a description of Alex in an article, suggesting he might have autism. I was working at the Institute of Psychiatry. Using my contacts I identified a number of autism experts. Most said I needed a letter of referral for a private assessment, but the prison service refused one. Desperate, I wrote to Professor Simon Baron-Cohen at Cambridge University, one of Britain’s leading autism experts. He replied agreeing to do an assessment on a pro-bono basis. We were ecstatic. Finally a ray of hope.
I will never forget the day we received his report. “There is no doubt in my mind that Alex has AS [Asperger syndrome].” It described him as a very vulnerable young man. People with AS find it hard conforming to social norms, planning, making good decisions, reading cues and understanding social situations – all of which can get them into trouble. They cannot easily interpret or predict the intentions of others in real time, particularly in fast-moving, spontaneous situations. “It is unlikely Alex would have assumed Cameron Ferguson would carry a knife that day, or might use it to kill or harm, because he may not have thought about what Ferguson was thinking or planning,” Professor Baron-Cohen wrote in his report.
Alex is now a Category A prisoner. When I get letters from him I cry a lot because I’m proud of him for coping, for not telling me he’s frightened, when I know he is. But I cry too because I am filled with immense pain, because he shouldn’t be in there.
In October 2014 Alison Saunders, Director of Public Prosecutions and Mike Penning, then justice minister, defended the joint enterprise law to MPs. They were happy with how it is used, they said. Asked about some of the overwhelming evidence against its use, Mr Penning could only respond: “Nothing is perfect.” I will be 66 when Alex comes home, my lovely vulnerable boy labelled a murderer because of something someone else did in a 47-second, spontaneous affray.