Dangerous Associations
When two Victorian gentlemen drunkenly raced their horse and carts down a Staffordshire lane, one losing control and trampling a man to death, a judge ruled that their recklessness made them both guilty of manslaughter.
The judge’s 1846 ruling set in place a common law precedent that would have implications for the next 150 years.
This ‘joint enterprise’ principle was used to secure the conviction and execution in 1950 of Derek Bentley in the infamous ‘let him have it’ trial, and has become increasingly prevalent in murder cases involving large groups of defendants.
Long after the tragic horse and cart caper was consigned to historical memory, its legacy endured. Hundreds were imprisoned under joint enterprise deep into the 21st century and serious doubts began to develop about the use of the arcane 19th century ruling.
A growing body of research alleged that joint enterprise convictions were being wrongly sought against people with no involvement in the crime.
More damningly, evidence showed that they were being disproportionately secured against defendants from a Black, Asian and minority ethnic background, who were often depicted in court as being part of a ‘gang’ – a label that implied joint culpability for an individual crime.
This ’gang’ notion, research showed, was propagated through the lurid use of stereotypes invoked in the courtroom, a world of ‘Crips’ and ‘Bloods’ that painted a picture of inner-city areas rife with violence.
This evidence came via efforts of campaigners, legal experts – and the forensic research of Manchester Met criminologists. Dr Becky Clarke and Dr Patrick Williams’ 2016 report Dangerous Associations outlined how defendants from a Black, Asian and minority ethnic background in joint enterprise cases were disproportionately and unfairly labelled as members of gangs.
If we could start getting some of these kids home to live their lives with their families… instead of spending 23 hours a day in a prison cell, then that’s really important
The report was the culmination of five years investigating racialised assumptions underpinning the way the ‘gang’ was understood within policing and the courts, and how this was leading to unjust outcomes, from the streets to the dock.
Their work has since been cited in Parliament, by Amnesty International and the United Nations, helped to change a policing practice that saw a thousand young black men removed from a secret ‘gangs violence matrix’, and informed a comprehensive government-commissioned review of racial bias in the criminal justice system.
For Dr Williams and Dr Clarke, these outcomes are due to a distinct, collaborative approach to work. Described as ‘critical interventionist research’, their method is informed by an open aim to work with interested parties to tackle injustice and give voice to marginalised communities.
“I’m not interested in engaging in research which starts with an uncritical acceptance and engagement with problematic terms and constructs which can have a negative impact on marginalised communities,” said Dr Williams.
If a potential research project arises, he added, which “has the risk of further pathologising a group of individuals within the community… then I believe we have a responsibility, and the University has a responsibility, to disrupt those negative and pathologising discourses which have an impact on people’s lives.”
Their experience of working within the probation service before entering academia, and of working closely with families of people affected by the issues they are researching guides their perspective.
For Dr Clarke, influencing policy change is one thing, but the real impact is in changing lives.were disproportionately and unfairly labelled as members of gangs.
The report was the culmination of five years investigating racialised assumptions underpinning the way the ‘gang’ was understood within policing and the courts, and how this was leading to unjust outcomes, from the streets to the dock.
Their work has since been cited in Parliament, by Amnesty International and the United Nations, helped to change a policing practice that saw a thousand young black men removed from a secret ‘gangs violence matrix’, and informed a comprehensive government-commissioned review of racial bias in the criminal justice system.
For Dr Williams and Dr Clarke, these outcomes are due to a distinct, collaborative approach to work. Described as ‘critical interventionist research’, their method is informed by an open aim to work with interested parties to tackle injustice and give voice to marginalised communities.
“I’m not interested in engaging in research which starts with an uncritical acceptance and engagement with problematic terms and constructs which can have a negative impact on marginalised communities,” said Dr Williams. If a potential research project arises, he added, which “has the risk of further pathologising a group of individuals within the community… then I believe we have a responsibility, and the University has a responsibility, to disrupt those negative and pathologising discourses which have an impact on people’s lives.”
Their experience of working within the probation service before entering academia, and of working closely with families of people affected by the issues they are researching guides their perspective. For Dr Clarke, influencing policy change is one thing, but the real impact is in changing lives.
“Individuals and communities within a stone’s throw from the University can be impacted by our research,” she told Met Magazine.
“If it can generate that sense of hope, of empowerment, of fight for those experiencing real pain and harm because of the injustice, [and if families] can say, well, we’ve got research and academics who stand next to us and believe our kids, that is bigger.
“If we could start getting some of these kids home to live their lives with their families… instead of spending 23 hours a day in a prison cell, then that’s really important.”
History
The road to Dangerous Associations began over a decade ago when both Dr Williams and Dr Clarke worked within the Greater Manchester Probation Service, undertaking research projects into policies to reduce reoffending.
They had already begun to look critically at assumptions that underpinned the way the criminal justice system operated.
“I very quickly picked up on some of the problems with policy and practice in and of itself. And therefore, how can we begin to challenge, respond to and also improve the ways we work with people who are defined as criminal? I quickly got involved in work on racial disparity and the disproportionate experiences of black and brown people within the criminal justice system,” said Dr Williams.
Following the riots in summer 2011, Clarke and Williams, by now a lecturer at Manchester Met, were asked by Manchester City Council to look at the link between gangs and serious youth violence.
The then Government allowed local authorities to bid for funding to tackle ‘gangs’ if they could show they were a local problem. Rather than support the relationship, their subsequent report was one of the first to challenge the conflation of the two.
Utilising their track record of undertaking rigorous research within the probation service, they used police, probation and youth justice datasets to make a robust case that the issue was not as presented.
Most troublingly, their work demonstrated that communities with higher rates of people from a Black, Asian and minority ethnic background were more likely to be the areas identified as having a ‘gang problem’, even if this was not supported by convictions data.
This problem of ‘collective punishment’ of minority communities was to underpin their work for the next decade.
Dr Clarke explained: “Were we expecting to find a difference between the gang in Manchester as it was being policed and serious youth violence as a series of real events where somebody is hurt? We probably were, because we both lived in the community and knew that these two things seemed a little bit different.
“But when we actually put that data next to each other, we saw that the policing of gangs was distinctly racialised, targeting particular communities but disconnected from serious youth violence convictions that were happening all over Manchester – and actually more so in neighbourhoods that didn’t have the same sort of ethnic makeup than those that were being policed.
“The policy assumed they are the same thing, as if violence in our cities is driven by gangs. That was the political rhetoric that came out of that summer…it was an assumption that just kept on rolling.”
Shortly after the publication of this report, Dr Clarke joined Dr Williams at Manchester Met not just to ask the question from the perspective of the system, but also potentially to start asking other questions about how and why this happens.
Joint enterprise
Dr Williams’ interest in joint enterprise dates back to 2008, when he was introduced to the mother of Jordan Cunliffe, who had recently been convicted of murder along with two young men.
Then 15 years old and since registered blind, he maintained his innocence and said he had not taken part in the attack. Jan Cunliffe was campaigning for his release, and was in touch with other families in similar situations, co-founding Joint Enterprise Not Guilty by Association (JENGBA) to campaign against joint enterprise.
She laid out the case to Dr Williams, who was unaware of joint enterprise. He said: “I just remember being a bit like: ‘This doesn’t make any sense’. His and Dr Clarke’s interest in the subject increased after their 2011 report for Manchester City Council on gangs.
They were invited to present their findings at a roundtable event hosted by JENGBA and attended by the Centre for Crime and Justice Studies, and other interested parties, and discussed how the ‘gangs’ construct they had identified may explain joint enterprise figures.
The proportion of Black/Black British people serving sentences for joint enterprise offences at the time was 11 times greater than their proportion in the general population. These two organisations, and others, were crucial collaborators on this project and others to follow.
Because of the way that Dr Clarke and Dr Williams conduct their research, they worked closely with campaign groups and think tanks, sharing funding and access to a rich seam of material.
As a result, this remains the largest survey undertaken of those convicted under joint enterprise. Their findings, based on interviews with over 240 inmates sentenced under joint enterprise laws that were known to JENGBA, revealed that more than threequarters of those from a Black, Asian and minority ethnic background reported that the prosecution claimed they were members of a ‘gang’, compared to 39% of white prisoners.
The interviews outlined how prosecutors regularly used racial stereotypes in relation to Black defendants, including mentioning ‘gang insignia’, hip hop and rap music, and language aligned to infamous gangs from throughout history.
Almost half of the respondents reported not being at the scene of the offence when it took place. Dr Williams said: “The first thing that was striking was that joint enterprise was being used on a range of individuals as a way of collectively punishing a group of people where one of the individuals was responsible for the event.
“Secondly, there are individuals serving lengthy custodial sentences who were not even aware that joint enterprise was a part of the prosecution strategy.
“We know individuals are in prison for offences that they have not committed but because of their associations to the individuals who were suspected of the offence.
“And then finally, what becomes central to this piece of work is that minority ethnic groups are more likely to have the gangs label evoked in the prosecution of their court case when compared to their white counterparts.
“And therein lie the key tensions in joint enterprise, and they are the ‘dangerous associations’ that we tease out. That’s precisely what ministers, change-makers, JENGBA and others begin to pick up and build on. That becomes critical, demonstrating … how one criminalisation takes place, but then also how racialised criminalisation is [also] taking place,” he said.
In 2016, the Supreme Court delivered their verdict. Prosecutions had been resting on an interpretation that foresight of a crime showed automatic authorisation of it, rather than, the judge in 2016 said should be the case, that juries must consider “intention to assist or encourage.”
Dr Clarke and Dr Williams argued that membership of a ‘gang’ often made this ‘foresight’ test easier to overcome. The concept of how the racialised formation of the ‘gang’ was driving unfair policing and prosecutions of those from minority backgrounds was gathering more momentum.
Dangerous Associations also flagged concerns about the racial disproportionality of the secret ‘gangs violence matrix’ (a process highlighted by community activist Stafford Scott of Tottenham Rights), which is a police database of people – often young, Black men – who were suspected of gang involvement.
As a result, Dr Clarke was invited to contribute to an influential Amnesty International report revealing concerns over how the Metropolitan Police used a gangs database, which leant on evidence from Dangerous Associations.
These efforts led to the Information Commissioner ruling that a thousand names must be struck from the database after breaching data protection laws.
National politicians and international bodies were also paying attention. Dangerous Associations was cited in Parliamentary debates by Chuka Umunna and Manchester Central’s Lucy Powell, and the overall campaign to reform joint enterprise won cross-party support – including from David Lammy, who in 2017 was asked to lead a review by the Government into race and the criminal justice system which made a series of recommendations for systemic reform to tackle bias.
Lammy asked Dr Williams to be part of the inquiry’s academic reference group, and Dangerous Associations is cited extensively throughout the final report.
Dr Williams was also invited to submit evidence to a UN mission to the UK on contemporary forms of racism. Both Dr Clarke and Dr Williams have attended numerous roundtable events with politicians, campaigners, police groups and charities to present and discuss their findings.
Dr Williams said this impact was because of the quality and reliability of the evidence that they published. “We’re in a space where calls of racism are politically unpalatable. Therefore, it’s extremely important that you can demonstrate precisely how this practice leads to these disproportionate outcomes and racial disparity. Until we did Dangerous Associations, those claims could not be made.”
Future While these outcomes may have felt like watershed moments, Dr Williams and Dr Clarke say there is much more still to be done.
Both raise concerns over the persistence of joint enterprise prosecutions, provisions in the Police, Crime and Sentencing and Courts Bill, the growth of data-driven policing and its potential for bias and the opening of a new ‘super courtroom’ in Manchester that would cater for larger trials involving multiple defendants.
Dr Clarke said: “So there’s this constant need to build empirical evidence, but also to watch the legislative change that’s happening and to read within it how those [previous] interventions are being responded to. “And it’s difficult because you may want to believe that there is this linear move toward change and justice and that issues of racism and racial injustice are being addressed and improved over time. But the relationship isn’t unidirectional and doesn’t move in that way.”
She says that demonstrates how their work with other interested parties – pointing to ongoing discussions with the likes of Liberty and Amnesty – helps to keep them up to date with the latest legal and political context.
Williams added: “We’re definitely in a place of retrenchment and consolidation of those harmful policies and practices. [So we’re thinking] ‘how do we respond to this?’ ‘How do we surface what the harms are and how do we challenge them?’
“That’s why it becomes really important for us to continue in this vein, to collaborate and critically engage with different groups and individuals.”
For Dr Williams, this further confirms the value of their approach to research and the role of universities and academia in general.
“It’s through meeting the Jan Cunliffes and the other mothers. That’s the way we surface what the harms are. And that’s what demonstrates what we should be doing as academics as a way of trying to respond to some of those challenges and concerns.”