A punch … a headlock … the lash of a belt… another punch. And then it was over. In the space of 47 seconds, Cameron Ferguson, a friend of my brother, had used a concealed knife to stab 21-year-old aspiring accountant Taqui Eddine Khezihi, tragically ending his life on Tuesday 6 August 2013.
London had been enjoying a spell of sunshine that day, and Khezihi had planned to enjoy it with his brother Bourhane and friends Oladapo Tajani and Leon Thompson. Similarly, Ferguson had decided to spend the day with his friends Janhelle Grant-Murray, Younis Tayyib and my brother, 20-year-old carpenter Alex Henry. A perceived disrespectful look had sparked hostility between Taqui and Janhelle, which quickly escalated into violence.
In the days that followed, Alex was arrested along with Grant-Murray and Tayyib and charged with murder under the legal concept of joint enterprise. I was employed as an administrator by the London Probation Trust and had colleagues at Uxbridge Magistrates Court, where Alex went for his First Appearance. They were surprised to see me there on a Saturday.
“Charlotte, why are you here?”
“You’re joking? Murder?”
Alex was remanded into custody at Feltham Young Offenders’ until his trial at the Old Bailey the following year. I left the Court devastated.
How could Alex be charged with murder when he hadn’t wielded the knife? Joint enterprise is a legal concept which means that more than one defendant can be convicted of the same offence in relation to the same incident, despite differing levels of involvement. But the evidence in Alex’s case did not support the prerequisites for joint enterprise. Traditionally, the prosecution must prove that the accessory intentionally aided, abetted, counselled or procured the offence. Alex had just been present.
All this I already knew due to a law degree from Brunel University. At last it was useful. I dusted off my books and tried to reconcile what I had learnt about the law with the evidence against Alex.
Well, if there was ever proof that I was a crap law student, it was not knowing this: a new form of joint enterprise named parasitic accessorial liability (PAL) was created in 1984. It allowed a person (D2) to be prosecuted for an offence committed by another (D1) if D2 participated in a lesser offence and foresaw the possibility that D1 might commit the more serious offence. So if D2 and D1 participate in a fight against V and D1 suddenly decides to murder V, D2 will also be liable for murder if he or she foresaw a possibility that D1 might kill V or cause V serious bodily harm.
PAL attracted fierce criticism because D2 no longer had to intentionally participate in the offence – it was enough that he or she foresaw it. And it wasn’t just the lack of intent which attracted criticism, but also its racist application, with one report concluding that joint enterprise was applied disproportionately to BAME individuals, using unproven gang narratives to secure convictions.
Cameron Ferguson pleaded guilty to wielding the knife. We believed my brother would come home. There was no evidence that Alex knew Cameron possessed the knife, and therefore no evidence that he could foresee a knife might be used. But our hope was soon extinguished.
“Friends tell each other everything” the prosecution had said in their closing speech to the jury. If Cameron Ferguson possessed a knife before the fight while the group had been together, the jury reasoned that Alex knew about it too.
So on 12 March 2014, Alex became a convicted murderer.
He was sentenced to life with a mandatory minimum term of 19 years. He will not be released early with good behaviour – a common misconception – and will therefore have to serve the entire sentence before being eligible for parole. By that point he will be 39 years old.
After the trial I was put on medication; diazepam for shock, zopiclone for insomnia and various SSRIs (a form of antidepressant) for anxiety and depression. I wondered if Alex might kill himself. I began to hallucinate and was eventually diagnosed with psychosis caused by the stress of my brother’s conviction.
I don’t think I would have recovered if it wasn’t for Jengba.
I had stumbled across them shortly after Alex was charged. Standing for Joint Enterprise Not Guilty by Association, Jengba is a fly-by-the-seat-of-your pants campaign run by volunteers from kitchen sinks and predominantly made up of the mothers and sisters of people convicted of murder by joint enterprise. Formed in 2010, it began generating significant public pressure, even persuading the House of Commons Justice Select Committee to conduct an inquiry into joint enterprise. During Alex’s exhausting six-week trial the group became my support network.
“Harness your anger,” Gloria Morrison, the campaign coordinator, taught me. So I did. It was clear that at some point the government legal aid funding would run out for Alex and we would not be able to afford new representation. So I did the obvious thing. I decided to become a lawyer.
For the next year, my life was campaigning, studying and working (in that order). After campaigning to abolish PAL, Jengba finally received the news it had been waiting for in February 2015: the Supreme Court had certified a question of law and were going to reconsider the legality of PAL. The case going before the court was that of Ameen Jogee who had been convicted of murder using PAL despite being outside the property when the killing took place. The case was heard over four days in October 2015 and the judgement was reserved until 18 February 2016.
I entered the court alongside swarms of Jengba campaigners who had gathered to witness the decision. Crushed between a sea of red campaign sweatshirts, I glanced back at the Jogee family and tried to decipher their faces. Their lawyers had already been told the decision, but because it was embargoed, they were unable to tell the family or us. Ameen’s sister looked calmer than I would have expected, she smiled at me and I desperately contemplated: was that because she knew we had won? If they had, we’d all finally get a shot at justice.
We took our places in the chamber to watch the judgement, hanging on every word and trying to predict where each stream of legal prose was taking us. Then we heard it: “The unanimous conclusion of the court is that Chan Wing-Siu did take a wrong turning and these appeals should therefore be allowed”. We had won.
Immediately afterwards, Jengba’s solicitor Simon Natas sat us down and advised us on our next steps. We had all assumed that our loved ones could appeal based on this change in the law, but Simon advised us that there was an additional hurdle to overcome first: the “substantial injustice” test, which applicants wishing to appeal based on a change in the law must first pass in order to be granted permission to appeal. It had been interpreted in different ways in the past, but more recently it has demanded that the applicant be suffering the continued effects of the conviction, such as imprisonment, societal stigma and a high insurance premium.
There is a good reason for this. The law must be allowed to alter with society’s changing needs, and if the courts had to consider the appeals which would follow legal reform, they might be more hesitant, causing law to stagnate. Subsequently, where an applicant had been convicted of a minor offence or where the applicant would still be guilty of a similar offence, the test has refused permission to appeal. This wasn’t a concern for Jengba, though – our loved ones were convicted of murder, subject to life sentences and either imprisoned or being monitored in the community until they die. The effect of a wrongful murder conviction was devastating and life-lasting; we were confident a substantial injustice test would easily be passed.
In June 2016, the Court of Appeal heard a batch of permission-to-appeal applications together (13 defendants from six cases) in the case of R v Johnson and Others. The purpose of hearing several cases together was to decide the correct approach to substantial injustice and apply it to a variety of situations. We had been advised that the court might interpret substantial injustice differently for PAL cases compared to other types of law reform, but there was no good reason why this would happen and so, despite all that I had witnessed, I felt confident.
When the judgement was handed down on 31 October 2016, the courtroom was again flooded by Jengba campaigners. I sat while each of the 13 applicants were refused permission to appeal. With each rejection a disquiet grew throughout the sea of red, the low growl of discontent punctuated sharply by the pained cries of relatives situated in small pockets throughout the masses. The Lord Chief Justice Thomas of Cwmgiedd stood and strode from the courtroom to an uproar of “no justice no peace”.
The court had reinterpreted substantial injustice to demand that the applicant prove they were innocent under the correct joint enterprise law. It was a very onerous legal bar – if retried for the offence today, the jury would only need to believe that the defendant might be innocent in order to acquit them.
In June 2017, my brother’s application for permission to appeal was heard before the Court of Appeal. As well as there being a change in the law, Alex also sought permission to appeal based on a fresh diagnosis of autism which made the conviction unsafe. After diagnosing Alex, a world-leading expert Professor Simon Baron-Cohen gave evidence to the Court of Appeal that those with autism find it difficult to interpret the emotions and intentions of other people and therefore cannot predict their behaviour. Given the spontaneous nature and fast-moving nature of the fight, it is highly unlikely, he argued, Alex would have known Cameron intended to cause Taqui serious harm and predict that he would act upon that intent by stabbing Taqui.
But in August 2017 Alex’s application was refused. The Court of Appeal disbelieved the validity of the diagnosis and Alex also failed the substantial injustice test. Jengba has since tried to reform the test through the courts but the Court of Appeal has denied us access to the Supreme Court. Following the Johnson case in which the harsher substantial injustice test was set, there have been other change-of-law cases which have not had to pass this harsh interpretation. Like the cases which came before Johnson, in R v Ordu it was enough that the applicant continued to suffer negative consequences of the conviction. In this case the court said that a harsher test was necessary for PAL applicants (and not Ordu) because we would automatically pass a consequences test. In R v Towers, the Court of Appeal barred access to the Supreme Court to challenge the harsh interpretation, because it was only applicable to PAL applicants and therefore not of general public importance.
With courtroom reform blocked, only one avenue remained: a Private Members’ Bill. So I decided to draft one. If passed, the Criminal Appeal (Amendment) Bill will amend the Criminal Appeal Act 1968 and provide a statutory mechanism for appeal in change of law cases – currently non-existent – abolishing the Johnson interpretation of substantial injustice and creating a new test which reflects the fairer consequences interpretation. Last year the bill was circulated to 14 leading law and criminology academics for feedback – all of them agreed with its purpose. Since then, the final bill has been drafted with assistance from Assistant Professor Matthew Dyson of Oxford University and Felicity Gerry QC and is already building support in Parliament. But we are under no illusion of how difficult it will be to get this into law.
Following the case of Ameen Jogee, only one of the people convicted under Joint Enterprise has successfully appealed. It is our hope that, if our bill is passed by Parliament, there will be more, and my brother can finally come home.
Charlotte Henry is a lawyer and a campaigner for Jengba. You can sign their petition here.