Dangerous Patterns: Joint Enterprise and the Culture of Criminal Law
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/09646639221119351 |
| Author | Henrique Carvalho |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Dangerous Patterns: Joint
Enterprise and the Culture
of Criminal Law
Henrique Carvalho
University of Warwick, UK
Abstract
This paper develops a methodological framework to understand criminal laws as cultural
artefacts—as manifestations of structures, processes and struggles which are part of the
broader social (re)production of meanings, values and affects. The first section sets out
the groundwork for a cultural examination of criminal law, deploying insights from cul-
tural theory to understand criminal law’s function in securing civil order. The paper then
maps and critically analyses the cultural structure of the law of joint enterprise, which it
argues is conditioned by a danger formation centred on the racialised and hostile con-
struction of the image of the urban gang. The third section investigates the implications
of this danger formation to the possibility of legal change through a cultural reading of
the UK Supreme Court decision in R v Jogee. The paper concludes by reflecting on the
value of a cultural understanding of criminal law.
Keywords
cultural theory, civil order, criminal law, criminalisation, dangerousness, danger, joint
enterprise, Jogee, hegemony, danger formation
On 5
th
June 2021, a newspaper article reported on an appeal being brought by three
people against their conviction for murder handed down in 2017 (Conn, 2021). The con-
victions were part of what has been termed the ‘Moss Side murder trials’by the media, a
couple of trials referring to a killing in Manchester in 2016. As stated in the article, ‘On 12
May 2016, 12 young Moss Side men, all black or mixed race, were in the area of
Broadfield Park, known locally as “the Rec”(…)’(ibid). This is a usual gathering
Corresponding author:
Henrique Carvalho, University of Warwick, UK.
Email: h.carvalho@warwick.ac.uk
Article
Social & Legal Studies
2023, Vol. 32(3) 335–355
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09646639221119351
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spot, and the group there claimed to be only loosely affiliated. ‘The afternoon took a
dreadful, violent turn when they saw Abdul Hafidah, 18, whom some said they feared
and resented.’
The group started to chase him, going across the traffic on Princess Parkway, the dual car-
riageway that bisects Moss Side, which was filmed on CCTV and shown in court. Some of
the teenagers joined the chase and did nothing further. Some assaulted Hafidah when they
caught him, badly beating him. But when a woman on her way home from work, one of
many witnesses, shouted at them to leave him alone, all ran off except two. Then one,
Devonte Cantrill, 19, wielded a knife, and stabbed Hafidah, who later died from those
knife wounds (ibid).
The prosecution charged all 12 men with homicide offences. The main ground for the
prosecution appears to be that the defendants were involved in a joint enterprise, as they
were part of a gang known as ‘Active Only’,or‘AO’(Judiciary, 2017). To prove intent to
assist and encourage, the prosecution relied on a series of inferences that associated the
group and the area of Moss Side with gang violence, sometimes as loose as bringing
attention to historical narratives of gang activity in Moss Side during the 80s and 90s;
but one of the most relevant connections was a rap video recorded in 2014 that included
some of the defendants. This video clip, also called ‘AO,’was recorded as part of an ini-
tiative led by Kemoy Walker, an award-winning youth worker, and funded by many orga-
nisations including Great Manchester Police. Walker, who stated in an interview to the
newspaper that the video had nothing to do with any gang, was not called to testify at
the trials. Out of twelve defendants, seven were convicted of murder and four of man-
slaughter. One of them—the oldest, whom the prosecution initially presented as the
leader of the group—was acquitted. Three of the seven people convicted of murder
appealed against their convictions in 2021, claiming that the prosecutorial strategy
adopted in the trials was racist and discriminatory.
While a number of issues could be raised about these convictions, what is perhaps
most perplexing is that they happened one year after the UK Supreme Court (UKSC)
laid down a landmark decision in R v Jogee [2016] 8 UKSC that abolished the legal doc-
trine grounding similar convictions, that of ‘parasitic accessorial liability,’or ‘PAL’. This
doctrine has long been decried as problematic (See e.g. Simester, 2017; Krebs, 2020a),
but the few years preceding the decision in Jogee saw PAL being increasingly challenged,
especially with regards to its application in the area of ‘joint enterprise murder’(Krebs,
2020b), in which several defendants can be held liable for a killing committed by one of
them—and which has been shown to predominantly target young Black and minority
ethnic men seemingly involved in gang-related violence (Williams and Clarke, 2016;
Squires, 2016a). When the decision in Jogee abolished PAL, it was widely celebrated
by lawyers, legal scholars, activists, and the media as ‘righting a wrong turn’in legal
history, presumably because most assumed that the abolition of PAL would lead to an
end to, or at least to a significant reduction in joint enterprise murder charges and convic-
tions. However, as the Moss Side trials exemplify, cases of joint enterprise continue to
abound in English criminal law, and there is evidence that Jogee had ‘no discernible
impact on the numbers of people prosecuted and convicted of serious violence’as
336 Social & Legal Studies 32(3)
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