Joint Enterprise decision: what does it mean for those already convicted?

Yesterday, 18^th February 2016, was a significant day in legal history. The Supreme Court handed down its decision in the conjoined cases of R v Jogee; Ruddock v The Queen, and in doing so changed the law regarding what is commonly known as ‘joint enterprise’, but which may more accurately be referred to as ‘parasitic accessory liability’.

The basic scenario is this: A and B are together committing a crime, offence X. Offence X may be almost anything but it is commonly burglary or robbery. During the course of offence X, A then commits a further crime, offence Y. Once again, offence Y may be anything, but in most high-profile examples, offence Y is murder. The question is, what is B’s liability for offence Y?

Clearly A is guilty of the full offence Y. But B may not have expected A to commit offence Y. Or perhaps B thought that A might commit offence Y but hoped that he would not. Or perhaps B thought that A would commit offence Y, and hoped that he would. There is a wide variety of possible circumstances that the law has to grapple with in considering B’s potential liability for offence Y.

In general, a secondary party (B) can be found guilty of an offence (Y) committed by another (A) if B ‘encouraged or assisted’ A in doing the offence. This principle is unaffected by the Supreme Court’s decision – in fact, it has been reinforced.

What the Supreme Court has decided is simply this: if B foresaw that A might commit offence Y, and continued to participate in offence X, he will not automatically be guilty of offence Y. The jury will have to decide whether B intended to encourage or assist A to commit offence Y. His foresight of offence Y will be evidence that he may have intended to encourage or assist A in committing the offence, but it will not automatically mean that he definitely intended to encourage or assist A.

This ruling is undoubtedly very significant for future cases of joint enterprise. Those who were ‘on the periphery’, who got caught up in a bad crowd, or who were in the wrong place at the wrong time, are much less likely to be convicted of a serious offence and now more likely to be convicted of a lesser offence. For example, some people who would under the old law have been convicted of murder, will now be convicted of manslaughter. That is still a serious offence, but far from murder.

What will happen to those already convicted? The Supreme Court made it very clear that this ruling does not mean that a large number of those already convicted will have their convictions quashed or altered. They would need to prove that there has been a substantial injustice before the Court of Appeal will take that step. However, anyone who considers that their case might be affected by the Supreme Court’s ruling should certainly contact a firm of solicitors with expertise in appeals, who may be able to assist them in considering whether this case could be used in their particular circumstances.

Detecting Discrimination

This is the third in a series of blogs from our new Employment Consultant, Ayesha Casely-Hayford.

In the corporate workplace, discrimination is not often dramatic but rather, it is subtle and hidden. It can be the complete opposite in the performing arts world. Tonic, a gender equality theatre company carried out research in 2014, which found that only 37% of roles on stage are for women.

A legally valid exception available in justification of what would otherwise be termed discrimination is the “occupational requirement”. It could be argued there is a need for the person employed to be a certain gender, race, able-bodied person, etc. A black-skinned African man to play Othello to give the work authenticity and communicate the dramatic intention of the play, for example. But questioning and probing, pushing for that justification is very important. Diverse presence on stage is needed if we want our cultural works to reflect the society we live in. In the same way, diverse presence is needed in the workplace if we want to have a society that is inclusive, fair and not isolating.  To address discrimination we need to be able to detect it. This is where the grey area lies and the fight for equality lives. Therefore, to detect discrimination we must begin by asking questions. A safe conclusion to always reach, particularly when dealing with issues of discrimination, is that nothing is what it seems.

Where better to begin with such a mysterious topic, than the world of J.R.R. Tolkien’s Lord of the Ring, and Peter Jackson’s major block-buster trilogy film adaptation. Loved by many, including myself, it was upsetting when it began to receive criticism and was branded sexist!

The Bechdel Test arrived in our dialogues on fiction film analysis and many loved works of fiction were found wanting. Lord of The Rings in particular was concluded to feature strong powerful female characters whose actions affect the plot, but who don’t interact with each other. Under the Bechdel Test, this is a fail. However, is and can the Bechdel Test get to the root analysis of the substance of a story, enough for us to make bold value judgements in respect of the role of a woman in a film? Have we missed the point and is a deeper questioning of character roles needed if we want to take steps to detect and therefore address issues of discrimination?

Named after an American cartoonist Alison Bechdel, the Bechdel Test made us look at fiction differently. It asks three simple questions in relation to fictional films:

(1)           does the movie have at least two women in it

(2)           who talk to each other

(3)           about something besides a man

The reality is that many films fail the Bechdel Test, including major popular works such as Lord of The Rings.

Fellow Lord of The Rings fans will know its stories contain incredible female characters. There is Arwen, married to Aragorn, but who in her own right is ruler of the Elves in Middle-earth in the Fourth Age. She is also the one who rescued Frodo. There is also Galadriel who bears one of the Elven rings of power. Galadriel is so awesome that although tempted by the Ring to succumb to her dreams in which she would be on a level with if not worse than Sauron, she decides to return to the Gray Havens and helps arm and supply the Fellowship. Although not featured in the films, we must not forget Eowyn who kills a Ringwraith and takes all of Rohan to Helm’s Deep.  This perhaps mean nothing to some...! But the point is, the substance of these women belies the sexist label affixed to Lord of the Rings as a work of fiction failing the Bechdel Test.

In the arts world, 2016 brings progress in the area of equality and combating discrimination. Inspired by the concept of the Bechdel Test, an adapted version of the test has been developed by theatre company Sphinx.  The aim of the new test is to encourage theatremakers “to think about how to write more and better roles for women.”^[1]

The questions Sphinx Theatre company are asking writers to consider, go like this:

(1) The protagonist - is there a woman centre stage? Does she interact with other women?

(2) The driver - is there a woman driving the action? Is she active rather than reactive?

(3) The star - does the character avoid stereotype? Is the character compelling and complex?

(4) The power - is the story essential? Does the story have an impact on a wide audience

A creative response by which Lord of The Rings would, by the spirit of Tolkien, pass.

This new test tells us it is important to not accept the status quo. To my mind it is more probing and gets to the substance of a work of fiction allowing us to better form a value judgement in respect of discrimination. Steps being taken by theatre companies and arts practitioners such as Sphinx are examples of inspired leadership, asking questions and raising awareness. Their efforts are to be applauded. Positive progress, which we hope will affect change. In the words of Galadriel “even the smallest person can change the course of the future”. To address discrimination we need to detect it, to detect it we need to boldly and cleverly question!

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^[1] Georgie Snow “Theatre Gets its Own Bechdel Test” The Stage, 3rd December 2015

Court of Appeal Appearance 12/02/16

We are delighted to announce another Wainwright & Cummins success in the Court of Appeal, in which our client Mr M’s sentence was reduced from 10 years’ imprisonment to 8 years’ imprisonment. The effect of this reduction is that Mr M will be released from prison a year earlier than previously expected.

The legal arguments in the appeal were based around the learned sentencing Judge’s use of the aggravated burglary Definitive Guidelines, when sentencing our client for a robbery carried out in the victim’s dwelling. The Crown did not indict our client on a charge of aggravated burglary; yet these were the guidelines adopted by the learned Judge when sentencing Mr M. The Judge found that the Definitive Guidelines for Robbery did not assist, as they did not at that point cover robberies carried out in the victim’s dwelling, except for very violent examples of such robberies, a category into which our client’s case did not fall. As such the Judge looked elsewhere for sentencing guidance and found it in the Definitive Guidelines for Aggravated Burglary, which suggested that a sentence of approximately ten years would be appropriate. We successfully submitted in the Court of Appeal today that the Judge should not have relied on those Guidelines, and should instead have looked at a line of case law which suggested that approximately 7 years’ imprisonment would be an appropriate sentence for a robbery such as the one committed by Mr M and his co-defendants. The Court agreed with those submissions and quashed Mr M’s sentence of ten years. It was substituted with a sentence of eight years, taking into account aggravating factors.

We are delighted with this outcome and particularly pleased at how quickly this appeal was granted: oral submissions were made for only a few minutes before the Court granted the appeal, and it was very clear that they had already decided to allow the appeal based only on the papers. We always enjoy appearing in the Court of Appeal and look forward to next time!

Safe Working Environments

This is the second in a series of blogs from our new Employment Consultant, Ayesha Casely-Hayford.

*It has been over three years since the shocking accident at Soho Theatre, which left stage manager Rachael Presdee (39) paralysed. The fact this incident occurred, and that it was possible for it to occur, is a very real reminder of the importance of safe working environments. Put plainly, we have a responsibility for the well-being of ourselves and of others that must at all times be at the forefront of our minds, foregoing all else.

In June 2012, Ms Presdee was working in a Headlong production at Soho Theatre when she fell three metres on to the stage after walking through an unmarked backstage door. She was left paralysed from the waist down. In describing the incident, Ms Presdee in reference to the backstage door said: “It was plain, no lock, no sign, and the same colour as all the other doors. I didn’t think. I opened the door looking for a lighting panel and took a step in to turn the lights on and there was no floor beneath me. I found myself falling in the pitch black and I just had absolutely no idea what was going on [...] It was two minutes of my life that completely and utterly changed everything”.

A civil case against Soho Theatre followed and with Equity (the UK performers’ union) representing Ms Presdee, an award of £3.7 million was made to Ms Presdee, in damages. There were also criminal proceedings brought against the theatre by Westminster City Council. In those proceedings the theatre pleaded guilty to breaching section 3 of the Health and Safety at Work Act 1974 and regulation 3 of the Management of Health and Safety at Work Regulations 1999. Soho Theatre was ordered to pay a fine of £20,000 and £10,000 towards the prosecution costs.

The words of Judge Alistair McCreath raise points deserving reflection. He said: “It is plain that, in general terms, too much was left to be done by too few. In particular, the employee whose ultimate responsibility it was to identify and manage the risk presented by this Juliet door had so many other tasks to perform that he simply did not turn his mind to it.”

Artists are generous. By its nature creativity comes from a generous place of sensitivity to the world around. It is not unusual to get caught up in situations and circumstances where it really is too much...but because “the show must go on” and you’re hoping to secure future and further employment in this precarious arts industry, there is a fear to speak out and cause “trouble” - we carry on regardless. But is compromising your own safety and - let’s not shy away from it -  the lives of others, a good enough reason?  We all know it is not. Forever rest assured, you are never causing trouble when acting in protection of your health and safety rights. You are never causing trouble when you are acting with an intention to prevent yourself and others being vulnerable to dangerous, even life threatening eventualities.

Ms Presdee spoke up after her accident and said, in respect of the theatre, “I’m not vengeful towards them”. She commented “I feel like my accident needs to highlight that we don’t always have a lot of money in this industry, but we do need to take care of ourselves before we even start thinking about what we’re putting on stage”.

The pre-thought and pre-planning that goes into work in the creative arts, and any working environment, is of extreme importance. Knowing your legal rights so that you can create safe barriers is a crucial part of that. It is not only about physical buildings and physical aspects - it is about the length of time you work, the amount of breaks you get, how you are treated and the affects that might have on your mental and emotional state. Having coherent and agreed contracts and policies in place so that everyone knows their duties and responsibilities is also fundamental to safety.

In order to speak up about your rights and take action, you need to know what your rights are. Be informed and protect yourself. Be mindful of your own well-being so that you can stop, observe, think and speak out before you’ve worked so hard and become so tired you are in the zone of taking risks. The same goes for pushing ourselves too far, being so generously enthusiastic to do a good job, to get the work done, despite difficult circumstances.

Is slowing down and speaking up with concerns more frightening a prospect than putting yourself and others at devastatingly serious risk? I would suggest Ms Presdee’s case teaches us, deafeningly clearly, that this must never be the case.

*source: Georgia Snow ‘Record £3.7m payout to stage manager paralysed by fall’ (The Stage Magazine, December 18th 2014)

The Prime Minister's Speech on Prison Reform

On Monday, the Prime Minister gave a speech on prison reform. It was, as he noted, the first time in over twenty years that a Prime Minister has given a speech solely about prisons. And although responses have been mixed, and many fair criticisms made, I for one tentatively welcome the proposed reforms.

The first positive aspect of the speech was the tone. Instead of the hectoring about ‘tough on crime’ that you might expect, the Prime Minister largely focused on rehabilitation and the ‘redemption’ of criminals. Of course there was a little on being ‘tough on crime’, no doubt to appeal to the ‘lock ‘em up and throw away the key’ types; but broadly the speech was far less about this and far more about improving prisons and improving prisoners’ prospects.

The government proposals fall into four wide areas. The first is to give greater autonomy to individual prisons and particularly to prison governors. The Prime Minister pointed out that prisons are largely run centrally, and must operate in accordance with the ‘924 prison service instructions and prison service orders... [which are] currently in operation’. These collectively amount to ‘46,000 pages of rules, regulation and guidance’. The strategy to give prisons greater autonomy will therefore be to use the schools ‘academy model’ in prisons. Prison governors will be given much more power to make their own decisions, including total discretion regarding their budgets; the ability to opt out of national contracts; and the tailoring of regimes to fit the particular requirements of their prison. Six of these ‘reform prisons’ will be created this year, and the ultimate goal will be for this to be rolled out to the entire prison estate.

Further proposals in this area include turning existing Young Offenders’ Institutions into secure schools, with much more focus on education and less on security; and improving recruitment into the prison service.

The problem with these proposals – a point which has already been made by many notable commentators – is that at the moment prisons are enormously overcrowded. Prison occupancy is way over ‘normal occupancy’ levels and prison population is in general higher than it has ever been. Two offenders are sharing cells meant for one; three offenders are sharing cells meant for two; and the staff to prisoner ratios are so poor that prisoners are regularly left in their cells when they should be doing purposeful activities, because there are not enough staff to allow the prisoners safely out of their cells. If prison population is not reduced – and it should be noted that the Prime Minister gave very little indication that this will be a focal point of the policies: indeed, he deliberately rejected sentencing reform – then governors can be given all the freedom in the world, but it will not make a difference. If prisoners are living two or three to a cramped cell, and there are not enough staff to take them out of cells for visits to the library, or to educational courses, or – as does in fact happen – even to the shower, then no amount of prison autonomy is going to make much of a difference.

The second part of the proposals focuses on transparency and accountability. This boils down to a plan to create new ‘Prison League Tables’. This will entail the development of ‘meaningful metrics about prison performance’, such as reoffending rates, employment outcomes for prisoners, whether or not the offender went into permanent accommodation on release, and the progress made on basic literacy and key skills while in custody.

The problem with this proposal is that it does not reflect the way in which the prison system actually works. While it is the case that some prisoners spend their entire sentence in one prison, very many are moved around between different prisons during their sentence. And the prisons from which prisoners are released are very often different from the ones in which they spent the majority of their sentence. So who gets the credit or the blame? Let me give an example to illustrate.

My client Mr G has a life sentence. He spent the early years of his sentence in Young Offenders’ Institutions, which were violent and unpleasant and in which his behaviour was very poor. He was then moved to HMP Gartree. This is a ‘training’ prison, working with prisoners who have lengthy sentences. During his time there Mr G made tremendous strides. He took a huge number of educational courses; improved his educational and employment prospects; and matured emotionally. Due to his impressive progress, he was then transferred to an open prison: HMP Spring Hill. HMP Spring Hill is dramatically understaffed and inefficient and so his time there seems to have been more about waiting for his next Parole review than making further progress. His next Parole review is coming up quite soon and he hopes to be released. If he is released, the likelihood is that he will move into permanent accommodation; gain a job quickly; and he will not reoffend. So if the Prison League Table is in place, which prison will get the credit for his success? Will it be HMP Spring Hill? That will be the final prison he will be in before being released. But it is really HMP Gartree which supported, educated and rehabilitated Mr G. Will they get credit for that?

In fact, there are many prisons like HMP Gartree from which very few prisoners are released directly, but which do sterling rehabilitative work. Most prisoners will go from HMP Gartree (and prisons like it) to an open prison, before their eventual release. How will the League Tables account for that?

There are other logistical problems also. Some prisons take almost exclusively short-term prisoners, whose reoffending rate – as noted by the Prime Minister – is higher. Will they be penalised for this? What about High Security Prisons? What about prisons which focus on particular groups, such as prisons with units for prisoners with severe personality disorders, or prisons which exclusively contain sex offenders? To put it simply – this is not comparing like with like.

The third part of the plan is intervention and treatment, and this section discusses some crucial issues: prisoner illiteracy, lack of qualifications, mental health difficulties, addiction, and so on. The Prime Minister quite rightly recognises that prisoners are largely drawn from those who had few or no life chances right from the beginning – and while of course, many people go through similar difficulties as a child and do not break the law, nonetheless the difficulties experienced by prisoners while young are undoubtedly related to their ultimate incarceration.

The Prime Minister therefore suggests various strategies to assist in these areas, including proper teaching of basic literacy and numeracy; focusing on the treatment of mental health difficulties and drug addiction (including, crucially, diverting some mentally ill offenders from going to prison at all). He also talks about building new prisons and tearing down some of the worst quality Victorian prisons in which we still house prisoners, and this is extremely welcome.

Another intriguing proposal is the creation of a ‘Teach First’-style scheme to get graduates teaching in prisons. This blog is already too long to analyse this suggestion properly, so I will just note: there are many legitimate and serious criticisms of Teach First; teaching in prisons is quite different from teaching in schools, no matter how ‘difficult’ the school is; and I will be extremely interested to see the progress of this scheme.

The final area considered looks at several disparate ideas, including ‘swift and certain’ sentences, problem-solving courts, and the use of technology, including satellite tagging of offenders such as mothers and those with full-time jobs. It also considers the effect of having previous convictions on employment – as is well known, the existence of previous convictions is a huge barrier on employment for ex-offenders. The Prime Minister is proposing to ‘ban the box’ – that is, prevent employers from asking about previous convictions upfront, and require them to wait until a later stage such as interview stage or just before an offer of a job is made. I think this is a great idea that will force employers to be more open-minded about prospective employees and allow ex-offenders to get their foot in the door before their convictions are known about.

Overall, the Prime Minister has put forward a series of interesting and largely progressive policies. Many criticisms have been made, often with a strong foundation; and it is clear that the policies proposed will not by themselves be sufficient to fix all the woes of the prison system, especially if the prison population is not reduced. But I look forward to observing and commenting on the continuing reform of the prison system, in the hope of significant improvement.

A tailored employment legal service for artists

This is the first in a series of blogs from our new Employment Consultant, Ayesha Casely-Hayford.

This is a shout out to local artists - you are not alone. Our employment consultant has a background in the arts.

There are as many ways of being employed as there are of making money. If you work in the creative arts industry, you will be very experienced of this fact!

Determining employment status and employment relations can be complicated but the importance of defining such relationships cannot be overstated.

Do you know your legal rights? It is the circumstance of your situation and not the ‘label’ given that determines whether or not you are an employee or self-employed or from an employer’s point of view, whether you are engaging independent contractors or employees.

Why does it matter? It matters because if you are an employee, you have special protection under UK law for example, a right to not be unfairly dismissed. If you are dismissed unfairly, you could be entitled to compensation. If you are an employer and aware that someone working for you has a disability (which, for the purposes of UK law is a wide definition including, for example dyslexia and dyspraxia) you have a legal duty to make reasonable adjustments and ensure he or she is not at a substantial disadvantage in comparison to others without that disability. As an employer, you also may have responsibilities for the actions of your employees and could be held responsible for their behaviour towards third parties.

The situations you may be working in may change over time and, to put it politely,  the terms of your engagement may be hazy.

Contracts can be hell. All is well until the trouble starts and if you have not carefully drafted your documents, what began as a positive healthy relationship could soon become a worst nightmare. Consideration, negotiations, and understanding of intentions at the outset, are crucial to building the foundations of long-term working partnerships. This is true in any kind of situation be it working with friends or working with established organisations. Being able to open these kinds of conversations is easier said than done and being able to deal with the contractual situation when it has (or is going!) wrong, requires objectivity and experienced strategic confidence. We can help you with that!

Our consultant’s personal knowledge of the industry will shield from the dazzling lights, getting to the crux of the contractual relationships and help you understand your legal rights so you can work safely and with confidence. Employment rights, enshrined in our UK legislation have been long fought for by individuals, unions, and politicians. Don’t let your rights be disregarded. You owe that to the creative work you are doing and fundamentally, to yourself.

Our employment department can offer you a tailored service, because we understand your world. You and what you do is unique, we offer you a unique set of legal skills to match.