The office of The New York Times (Photo by Drew Angerer/Getty Images)

The NYT versus GB

What did Britain do to the New York Times?

Artillery Row

The New York Times has taken an increasingly oppositional attitude towards the UK of late — markedly so since the vote to leave the European Union. An article in 2019 described London as, until recently, having a palate inclined towards “porridges and boiled mutton”. Later that year it ran an op-ed stating that “Britain is drowning in nostalgia”, calling it a “solipsistic backwater”. This year, it attacked Liz Truss as a Powellite, in thrall to the Empire (even though Powell advocated for decolonisation). On the very day of the death of Her Majesty Queen Elizabeth II, it released an article which took the position that “The Queen helped obscure a bloody history of decolonization whose proportions and legacies have yet to be adequately acknowledged”. 

Now the New York Times has concentrated its disdain on the criminal justice system of England and Wales, or what it calls the “UK” system, even though Scotland and Northern Ireland have separate systems. On 12 November it published an article written by the former Buzzfeed journalist Jane Bradley entitled “UK Doubles Down on a Tactic Disproportionately Targeting Black People”. The article stated that “hundreds of people were being sent to prison for life” for murders committed by others, using the “tactic” of joint enterprise. Bradley said that, despite a judgment in the UK Supreme Court (UKSC) in 2016, which activists had expected to restrain the use of joint enterprise (or accessory liability), prosecutions had in fact increased. 

The UKSC did not recommend a policy restraining prosecutions under accessory liability, however. A glance at the 2016 judgment would very quickly disabuse a reader of the impression that joint enterprise would be abolished. In Jogee, the appellants argued that the law regarding secondary liability had been misapplied. The Judicial Committee of the Privy Council in Chan Wing-Siu held that if two people are in the course of engaging in one crime (crime A) and the first defendant engages in another crime (crime B), the second defendant may be found guilty as an accessory to the second crime if he had foreseen the possibility that the first defendant would act as he did. Thus, by way of an example, a man embarking on a burglary could be found guilty as an accessory to murder in the event that his co-defendant had gone on to murder if he had foreseen the possibility of really serious harm, even if he did not intend to assist in its commission. Professor John Smith named this doctrine “parasitic accessory liability”. 

The errors regarding the law were repeated and garbled further in the Guardian

The UKSC held that the law had indeed taken a “wrong turn” since Chan-Wing Siu. Foresight was not intention to assist, but rather evidence from which intent could be inferred. The restated principles emphasised that the standard approach towards accessory liability should be taken, that is, whether the defendant had intended to encourage or assist the crime in question. The effect, then, would not be to abolish secondary liability in its totality. The UKSC even added that where a defendant intends to encourage violence which is less than serious and that violence escalates and results in murder, the appropriate charge would be manslaughter. Additionally, previous convictions when the doctrine of parasitic accessory liability applied would not be immediately quashed. In many cases, the standard rule of accessory liability would have resulted in a conviction on the facts, and out of time appeals would have to demonstrate a “substantial injustice” in order for leave to be granted. 

The view that prosecutions on the principles of secondary liability would plummet following the judgment was based on a misreading of Jogee. The judgment changed a very particular feature of the common law. It did not recommend abandoning the approach towards prosecuting those who encourage or assist crimes. The New York Times went on to say in its article that the CPS “has stopped using the term joint enterprise” to avoid controversy, but Jogee made clear that “the expression ‘joint enterprise’ is not a legal term of art”. The defendants in these cases are charged under the principles of accessory liability, meaning that they are charged with an offence as if they were the principal. 

In order to illustrate the apparent injustice of “joint enterprise”, the New York Times concentrated on the conviction of Giovanni Lawrence for murder. The article made a large point of the fact that “Mr Lawrence was not at the murder scene and never touched the weapon”. This, of course, is irrelevant. Under the standard principles of accessory liability, the defendant need not hold a knife or join in at the scene of the murder undertaken by the principle. The Sentencing Remarks and a news report offer details of the facts in the Lawrence case. Rhamero West and his friends were located driving a blue BMW by three of the defendants, Ryan Cashin, Giovanni Lawrence, Marquis Richards, who were also in BMWs. Richards attacked the window of the blue BMW with a knife. The blue BMW eventually sped off. There followed a pursuit by car, until the blue BMW crashed. There was then a chase on foot, involving Cashin and Richards. Richards handed Cashin the knife. Cashin chased down West, catching up with him in front of a residential property, where he stabbed him four times. The jury found that Lawrence had driven a 1 series BMW when pursuing West. In the Sentencing Remarks, Mr Justice Kerr said, “I am completely satisfied that you drove the 1 series BMW during the pursuit of the blue BMW driven by Rhamero West”, adding, “I am also sure, beyond reasonable doubt, that you knew Marquis Richards had a knife with him and that the three of you intended that it should be used to inflict really serious harm to Rhamero or his friends”. Mr Justice Kerr also noted that Lawrence had assisted the others in fleeing from the scene. 

The case, then, was not of the sort explored in Jogee, where defendants agree to commit crime A and where a co-defendant commits crime B as a principal. Lawrence was charged with murder, having acted as driver in pursuit of West, assisting Richards and Cashin. Normal rules regarding intention applied. The case was not in defiance of Jogee. Curiously, the New York Times questioned whether Lawrence was driving, which seems to confuse the criticism of the doctrine of secondary liability with criticism of the strength of the evidence. The judge and jury were satisfied, however, by the strength of the cell site and the DNA evidence. Whilst Cashin and Richards were outside the car, Lawrence was “helping and providing vehicle back up”, according to Mr Justice Kerr. 

The errors regarding the law were repeated and garbled further in a column by Zoe Williams in the Guardian. She said that “the supreme court ruled that joint enterprise cases were unfair and racially biased — yet nothing changed”. Not only did she repeat the “yet nothing changed” argument from the New York Times, missing the significance of Jogee, but she also added her own gloss on the UKSC judgment in asserting that it had found that joint enterprise was “unfair and racially biased”. Of course, Jogee said no such thing. The Guardian later offered a correction on the “racially biased” passage. 

Criminalisation of this kind of conduct is not unusual across the world

Not content with stopping at joint enterprise, the New York Times went on to attack the law of conspiracy. This article, written by Selam Gebredikan, outlined the prosecution of Ademola Adedeji, who had a university place before his conviction. Adedeji was “baffled” by the charges against him, according to the New York Times since he “had not attacked anyone. He had never owned a gun, a knife or any other weapon” and there was no murder victim. He had only sent six text messages. Yet, the details of the case explain the conviction. John Soyoye was murdered on 5 November 2020. Following the attack, members of a group chat messaged one another, planning reprisals against the murderers of Soyoye. Adedeji did not take part in reprisals, but he did identify an individual to be targeted in the chat, giving a postcode and a map screenshot of his address. After this, other victims were eventually targeted — not the individual singled out by Adedeji. Adedeji was convicted of conspiracy to cause grievous bodily harm with intent, rather than conspiracy to murder. 

It should not be surprising that conspiracy charges were brought. It is not necessary for an offence to have been completed in conspiracy cases, or for the defendant to have owned a gun or knife. Alongside attempt and assisting and encouraging under the Serious Crime Act 2007, this is an inchoate offence. Criminalisation of this kind of conduct is not unusual across the world. The same goes for accessory liability. Zoe Williams in her Guardian article said that the US had “put us on notice”. Yet, many of its laws are harsher. For instance, felony murder applicable in a number of US States (a doctrine which was abolished in England and Wales) allows a defendant to be charged with murder if, during the course of a dangerous felony, a co-defendant undertakes to unlawfully kill. This criminalises further than parasitic accessory liability since foresight is not specifically required. 

The New York Times has now offered an update, stating that “UK Acknowledges Signs of Race Disparity Over Prosecution Tactic”. This “UK acknowledgement” was a response from minister Edward Argar to a question by Kate Osamor on joint enterprise. Argar said that there was no government data on joint enterprise, but that the “Government recognise that convictions based on joint enterprise appear from some studies to affect black, Asian and minority ethnic groups disproportionately”. He rightly stressed that “the Crown Prosecution Service can only apply the law when making decisions, and race or ethnicity should play no part in any such decision making”. 

This New York Times series purports to uncover great wrongs in the criminal justice system of England and Wales, and yet it makes a series of errors in describing the relevant law, omits to mention (or glosses over) key facts in the cases it uses to illustrate apparent injustices, and ignores the fact that the legal principles criticised have wider application across the world. The New York Times’ vendetta against the UK, and its poor reporting, continues.

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