UK court steps up tactic that disproportionately punishes blacks

The UK’s highest court announced in 2016 what looked like a major victory for civil liberties, ruling that for decades prosecutors had been overreaching in the use of a tactic that sent hundreds of people to life imprisonment for murders committed by others.

That’s after lawyers, academics and activists fought a decade-long battle arguing that these cases were unfair and racially tinged. They cheered the Supreme Court’s decision and predicted that the number of cases would fall.

Six years later, that hasn’t happened.

Rather than being constrained by the ruling, prosecutors quietly plotted strategies to continue to file lawsuits and win convictions. Figures accessed by the New York Times through public data requests reveal that the Crown Prosecution Service (CPS), a sort of British public prosecutor, has actually stepped up the frequency of these prosecutions since then.

This overuse is an example of how UK leaders of major parties have championed criminal justice policies that disproportionately punish black people.

Black defendants are three times more likely than white defendants to be prosecuted for murder in groups of four or more people — a commonly accepted measure for classifying cases as joint ventures — according to the new data.

The joint initiative, by itself, does not constitute a crime. It is a legal principle that authorizes prosecutors to charge multiple people with a single crime. The principle gained notoriety with a string of highly publicized lawsuits over ten years ago.

In one, a teenager was jailed and deported for a murder he never even witnessed—much less committed. In another, a partially blind 16-year-old, who said he couldn’t even see his friends attacking someone, was given a life sentence for manslaughter.

Since the Supreme Court ruling, the CPS has sought to avoid provoking this type of controversy. He stopped using the term “joint initiative”, but the lawsuits continue. A year after the decision, 11 Manchester youths were sent to prison for a knife attack – although the judge admitted he did not know whether all of them had taken part in the attack.

An autistic young man has been given a life sentence for another knife attack committed by a third party while he is said to have sat in a car watching a music video.

Meanwhile, the flurry of successful appeals never came to fruition. Prosecutors objected, and the judges, who had set very strict criteria for appeals, rejected almost all of them. Only one person has been released since the Supreme Court decision.

The fact that the figure of the joint initiative continues to be used is an example of a British policy of intransigence on crime that has become more extreme. Added to more than one hundred interviews with people who are or have been police or judicial authorities, government figures, lawyers, judges, academics, family members and activists, the data reveal that the government’s discourse and tactics have hardened.

Official reports have pointed to systemic racism in the criminal justice system, but it has been largely ignored. Last year, a government-backed committee sparked controversy when it said it found no evidence of institutional racism.

Joint-initiative prosecutions can give prosecutors an advantage, allowing them to lump multiple defendants together and, in many cases, characterize them as gang members. And it is much more common for black people to receive this label.

When the NYT findings were presented, a CPS spokesman said authorities do not use the term “gang” lightly. “If a person encourages or helps another to commit a homicide, it is correct that he can be prosecuted for his involvement in the crime,” he said in a statement.

The body denied responsibility for any racial disparities and highlighted that racial disproportionality is a problem at nearly every stage of the criminal justice system. But he said he will start tracking cases on a joint initiative when he develops a new case management system.

Under the doctrine of joint initiative, which has existed since the 19th century, a person may have physically committed the crime, but their associates may also be convicted.

A classic scenario is a robbery where one person steals the money and another person drives the getaway car. But in many crimes the roles are less clear. For decades, prosecutors have won convictions simply by proving that the accomplices should have foreseen the crime, even if they never intended for it to happen.

In 2016, the UK Supreme Court rejected this standard. From that point on, to get a murder conviction under the joint initiative doctrine, prosecutors would have to prove that an accomplice actually intended the killing to happen. It was a major change, and it seemed likely that it would greatly reduce these types of lawsuits.

Prosecutors often refuse to release data on how often they file lawsuits or on the skin color of defendants — even though a parliamentary inquiry formally recommended them to release that information. After the NYT filed complaints with the government and the CPS, they relented and provided data on murder cases involving multiple defendants.

An example of the continued use of this mechanism can be seen this year in Manchester, where a 20-year-old black man named Giovanni Lawrence was convicted of manslaughter for a murder committed by a white friend.

Lawrence was not at the crime scene and never touched the knife. He was accused of driving a car in a chase that ended in murder. But prosecutors did not identify any of his motives, any history of violence, did not locate security camera footage or witnesses to what happened.

‘How are we going to win this election?’

In late 2011, after police shot dead Mark Duggan, a black man, England faced the biggest wave of civil unrest in a generation. Peaceful protests turned violent. Young men with their faces hidden by scarves and ski masks looted, set fires, threw bottles and attacked police.

The riots soon came to be seen as symbols of the latent racial tensions and pent-up anger of the young and poor over government cuts in social programs. But then-premier David Cameron blamed them on gangs, although official statistics soon showed they played no major role in what happened. The government announced millions of pounds to fight crime.

“The police saw what happened as an opportunity to raise funds,” says Peter Herbert, who until he retired last year was one of the few black judges in the UK.

Since the mid-1990s, overall crime has been falling in England and Wales; rates are still much lower than in the US.

“There has always been a tendency for the British Labor Party to go to the American Democratic Party to ask, ‘How are we going to win this election?'” says Herbert, who was an adviser to the justice minister in the Tony Blair government.

“As part of that, they heard ‘Criminal justice is your weakness. You can make it your strength — just talk about longer sentences and safer streets’ and all these clichés that impact poorer people and minorities. “

The interior and justice ministries declined to comment. The National Council of Chiefs of Police said it was committed to improving policing for black people, including through new training and increased use of data and cameras attached to officers’ clothing.

The raw numbers were low – an estimated 100 to 200 people a year were prosecuted in joint-initiated homicide cases. But in a country with only something like 700 homicides a year, they made up a big chunk.

And she is growing. Since the Supreme Court ruling, nearly 15% of defendants in murder cases have been prosecuted in a group of four or more people, up from nearly 10% previously, according to a NYT analysis of data obtained by human rights journalism group Liberty Investigates.

While these lawsuits drew criticism, the Supreme Court announced its historic decision in the 2016 case against Ameen Jogee.

name change

A dozen former and current prosecutors and law enforcement officials told the NYT that there was never any thought to stopping or reducing use of the joint initiative. The question was how to continue to use it.

They needed a strategy to convince jurors that people intended to commit crimes, even when they didn’t personally commit them. An elite group of lawyers from the Attorney General’s Office, the government’s main judicial consultancy, trained police and prosecutors to do just that.

Today, evidence of “association”—the relationship between defendants—takes on a key role in helping to prove intent. Social media posts and even the music that defendants listen to can be used to influence a jury to believe that the defendants are of bad character or part of a gang.

According to a CPS report, prosecutors dropped the joint initiative label because “the term itself has become controversial.” They may use the term in court, but in public documents and in official guidance given to investigators, the new term has become “secondary responsibility.”

And it worked.

Data from the Ministry of Justice show that, in the first five years after the Supreme Court decision, the number of homicide cases involving four or more defendants increased by 42%. And prosecutors have been winning: the number of convictions has increased by nearly 50%.

Research consistently shows that police are far more likely to apply the gang label to black people. Young black men make up 89% of the names in Manchester’s gang database, according to researchers at Manchester Metropolitan University.