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1. What does joint enterprise mean to you? It depends where you stand. The convicted rail against the unfairness of being punished for a crime they ‘did not commit’. The families of the dead want ‘justice’ for all those who added to the force of numbers against their loved one. More controversial is the use of evidence of gang membership and drill lyrics to prove participation in a joint enterprise. Despite the controversy, the Courts have consistently shown a willingness to allow this type of evidence to be used. So, at least until there is a change in the law, this is what young people need to know.
2. The law of joint enterprise itself is not difficult to state: those who intentionally assist or encourage another person to commit a crime are just as guilty and liable to the same punishment provided they share the same intention as the person who commits the physical act. So, where someone is stabbed as a result of a group attack, those who help or support the stabber may be held to be guilty of the same crime though they did not wield the knife. It all depends upon their intention at the time.
3. How does the prosecution prove that a defendant present at the scene of an attack shared the same intent as the stabber? Whilst it is not necessary to prove that he knew the stabber had a knife, it’s a good place to start. After all, if a man joins in a fight knowing his associates are armed, it’s not difficult for a jury to conclude he intended that one of them would use a weapon should the need arise. And so the police will look for evidence which might demonstrate the defendant’s attitude to knives and violence. The obvious place to start is his criminal record. If he has ever been convicted or cautioned for possession of a knife, regardless of whether it was used, the jury may hear about it. The prosecution may argue that this evidence makes it more likely that he knew that his friend had a knife. After all why would the stabber conceal that fact from a friend who himself carries knives? If, in the past, the defendant has used a knife to threaten or injure someone, the prosecution may argue that he is someone willing to involve himself in a knife crime. A criminal record for knife possession is unlikely to remain in the past.
4. The police will also look at the defendant’s mobile phone, social media accounts and at platforms like YouTube and Tik Tok. What are they looking for? Evidence that he approves of the use of weapons or violence or is closely associated with the stabber. Evidence that they run with the same gang, sharing the same values, may prove that point not withstanding that it is also likely to be prejudicial, painting the defendant in a generally bad light.
5. Rarely is there direct evidence of gang membership. It goes without saying that gangs don’t issue membership cards. The police will look for evidence that the defendant hangs out with known gang members in known gang territory and if they find rap or drill lyrics written by the defendant, or recordings of performances in which the defendant appears, this type of evidence may also prove the point.
6. It should not be forgotten, however, that rap music is a form of, mainly black, expressive youth culture long accepted into the mainstream. Drill music, drawing on Gangsta rap traditions, whilst intending to shock and provoke, should no more be confused with reality than any other genre of music. Does anyone seriously suggest that Johnny Cash really shot a man in Reno just to watch him die? The Courts are alive to this argument but incriminating evidence of drill lyrics or performances is not admitted in a vacuum. Looked at on its own it may be entirely innocuous. Put it together with other circumstantial evidence or direct evidence of involvement in a crime and it may add to the overall picture of guilt. Bob Marley only sang that he shot the sheriff. Life may have been more problematic for him, if the sheriff had actually been shot and Bob Marley was in the area at the time.
7. Whether evidence of drill lyrics or performances will be admitted against the defendant will depend upon the nature of the evidence. Where a lyric can be attributed to the defendant, perhaps because it is found in his phone, where it refers to his involvement in an incident, or demonstrates knowledge about an offence from which his involvement can be inferred, it is likely to be admitted in the same way that any other confession will be admitted. Where, however, a defendant simply has possession of a rap lyric not written by him or which includes only generic references to violence or weapons, the opposite is likely to be true.
8. Most cases lie somewhere between those two extremes but, more often than not, the Courts have shown a willingness to admit the evidence. In Awoyemi1, a shooting, the evidence included handwritten rap lyrics found in the defendant’s possession which referred to guns and a gang and included threats of retribution for murdered members and threats to shoot rivals. This evidence was admitted because it was said to show the extent to which he had signed up to gun and gang culture. It was evidence of motive, making it more likely that he was not innocently present at the scene.
9. In Dixon-Kenton2, a stabbing, evidence of gang membership was admitted to disprove the defendant’s claim of self-defence. The prosecution called evidence to show that he spent time with other gang members in gang territory. On its own, however, the Court said that this evidence would not be good enough. It was more convinced, however, by a video posted four months before the killing in which the defendant pointed to a street sign which bore the name of the gang and made a gang hand sign. He also then made a gun gesture and another hand sign said to represent the victim’s gang. The Court took the view that the impression given by his participation in the video was that the defendant was part of the gang, allowing the prosecution to argue that the stabbing was gang related.
10. In only one reported case, Alimi3, has the Court of Appeal overturned a conviction because rap evidence has been wrongly admitted. In that case, the defendant appeared in two videos posted online. In the first he was an extra who could be seen drinking and swaying to the music. In the second, he could be seen sitting in a motor vehicle whilst others dramatically counted out the alleged spoils of their drugs related business. The Court of Appeal held it was an important distinction that Alimi’s role was simply as an extra and he spoke no gang related lyrics whatsoever. Had he done so, the position might be different.
11. Are there lessons here for young people? Running with a gang brings obvious risks and the Courts are alive to the type of evidence which can now be found online to prove it. Knife possession is being taken increasingly seriously. Sentences are getting tougher but that may not be the end of the matter. A history of knife possession only makes it more likely that a charge based on joint enterprise will stick. The past is not another country.
Deanna Heer, King's Counsel
Senior Treasury Counsel at the Central Criminal Court
Further Reading
[1] [2016] EWCA Crim 668
[2] [2021] EWCA Crim 673
[3] [2014] EWCA Crim 2412
