In 1846, two men named John Swindall and James Osborne engaged in a cart race on a public road that caused the death of a pedestrian. Only one vehicle had killed the victim, but as both had encouraged the other to drive dangerously, Swindall and Osborne were judged to be acting on a common intention and were both charged with manslaughter. The case ushered in the Joint Enterprise doctrine in English law, whereby two or more people who agree to commit a crime together are liable for the criminal actions of other members of their group.
Joint Enterprise. It sounds like a judicious scheme. Why should members of a group who set out with the common goal of murder evade justice only because they didn’t – or it couldn’t be proved that they did – deliver the killing blow? What difference is there, says the doctrine, between the person who commits a crime, and the person who instructs them or stands by their side in foresight and complicity of what they’re about to do?
A world of difference, says Jimmy McGovern’s feature-length BBC drama, Common, especially when association is mistaken for complicity.
Directed by David Blair, Common told the story of Johnjo O’Shea (Nico Mirallegro), a seventeen-year-old invited by friends of his older brother to go out for a pizza. The invitation is quickly revealed to be not what it seemed, and Johnjo and his three car passengers quickly find themselves facing trial for murder. With no foresight of what the others had planned, and no complicity in the crime itself, how could an innocent boy possibly go to prison? Thanks to Joint Enterprise, or rather, its misapplication.
McGovern’s drama has its roots in the writer’s patronage of campaign group JENGbA (Joint Enterprise Not Guilty by Association). Established and run by relatives – often the mothers – of those convicted under Joint Enterprise, it lobbies for changes to the legal doctrine. JENGbA argues that common purpose convictions are misapplications of the law being used as a tabloid-friendly weapon against ‘gang culture’, a judicial scythe cutting swathes through groups of disadvantaged young people regardless of their guilt. As McGovern’s script has one incensed mother put it, “it’s not about innocent or guilty, it’s about getting working class scum off the streets, that’s how they see our kids, scum, scallies…”
Anyone familiar with his previous work, from the superb Cracker to Sunday, Hillsborough and Accused will know that social injustice is a perennial theme of McGovern’s. The perceived misapplication of a centuries-old legal doctrine, seen by many as being used to convict working class youths of little more than being poor in a built-up area, is evidently ripe for his empathetic treatment.
McGovern’s goal with Common was to publicise the injustices of the current system. It’s soapbox drama, but affecting, involving and strongly acted. Susan Lynch is heart-rending as Margaret Ward, the mother of the victim, as is Jodhi May as Johnjo’s mother, Colleen. One impassioned speech from Johnjo’s aunt (Game Of Thrones’ Michelle Fairley) is a call-to-arms for McGovern’s audience, “You’re going to hear me out” she screams, “Put it into your laptop. Joint Enterprise. And see what you get. Loads and loads of innocent kids, twice as innocent as Johnjo, they’re all doing life.”
Robert Pugh’s D.I. Hastings is given a speech from the other side of the film’s fence. During a police interview, his character tells a frightened young man, “In the old days we worked hard to establish who it was who used the knife. He’d get done for murder and the other scumbags would go free. All that effort, I used to think, just so scumbags could go free. Well now it’s all changed. We don’t have to prove who used the knife anymore, because you all get done for murder. If you were there, egging him on, backing him up, helping him in anyway, a phone call, a knowing look even, you get done for murder. It’s called Joint Enterprise,” Pugh’s character says with relish, “and I love it”.
As you might tell from the above, presenting a balanced case isn’t McGovern’s goal here. There’s no ambiguity in Johnjo’s story, which depicts the young lead as an unquestionable innocent dragged into a legal mess not of his own making. Johnjo is presented with a lose-lose choice in Common: either admit culpability to a lesser charge or face the threat of a Joint Enterprise murder conviction. He’s penalised for his honesty and coerced by his peers, defence team and a blinkered legal system into making a devil’s bargain.
McGovern’s film joins 1991’s Let Him Have It (written by Neil Purvis and Robert Wade, directed by Peter Medak, and starring Christopher Eccleston) in its protest at the inequity of Joint Enterprise convictions. The subject of the Medak’s film was the now-pardoned Derek Bentley (Eccleston), a man sentenced to death in 1953 for the murder of a police officer during a burglary attempt. The prosecution’s case rested on an interpretation of Bentley’s words to the gunman, later used as the film’s title. Did he mean ‘Let him have the gun’, or ‘Kill him’?
Unlike Let Him Have It, the real drama and power of McGovern’s film isn’t in the defendant’s, but the mothers’ stories. The writer’s involvement with JENGbA must have brought him into close contact with women like Margaret and Colleen, characters powerfully acted by Birch and May. It’s their grief, strength and rage that Common most successfully brings to the screen, alongside their incredulity that the law could so thoroughly let them and their children down.
Janet Cunliffe is one such woman who appears during Common’s end credits after the sober notices that “A House of Commons select committee is currently looking into Joint Enterprise” and the introduction, “A group of women who believe their loved ones have been wrongly convicted under this law”.
Cunliffe has been protesting her son’s murder conviction by Joint Enterprise since 2008. Of five teenagers arrested after the murder of Garry Newlove – a father in his forties beaten to death outside his Warrington home after confronting a group of teenagers about local vandalism – three received life sentences. The three included the then-sixteen-year-old Jordan Cunliffe, who was reported to be legally blind and not to have taken part in the attack but whose conviction was obtained on the grounds of Joint Enterprise. Being present for Newlove’s murder and thought to be in knowledge of the group’s potential for violence, Cunliffe was judged to be acting on a common intention with the other two young men charged, and so was legally held responsible for their actions. His mother Janet, and Jimmy McGovern, have always maintained Jordan’s innocence.
Jordan Cunliffe’s case was the inspiration for Common, an exhilaratingly empathetic, political piece of drama with moments of intense humanity (when they can be heard over the tub-thumping). McGovern is a writer to be cherished: one who knows exactly what to do with a platform when he’s given one, and with the guts and talent to do it.
Ultimately, McGovern’s drama reminds us that the law is only as good as the people who wield it. To take an impartial view, you could say that Joint Enterprise isn’t fundamentally wrong, but is being misapplied and used inconsistently. Common urges us to learn more and do more about that injustice. In McGovern’s words then, put it in your laptop. Joint Enterprise. And see what you get.