At the start of court business on 14 June 2017, court four in the Royal Courts of Justice was packed. Londoners had woken up to the unfolding horror of the fire at Grenfell Tower that was to claim the lives of seventy-one residents of the 24-storey block. As people arrived late to court, held up by the ensuing chaos, they struggled to squeeze onto the public benches.

Two young men joined the proceedings via video link: Jan-helle Grant-Murray, in grey sweatshirt, from HMP Leicester; and Alex Henry, wearing suit and tie, from HMP Whitemoor in Cambridgeshire.

On 13 March 2014, the pair had been found guilty at the Old Bailey of murdering Taqui Khezihi and wounding his brother Bourhane. Henry, just twenty years old at the time of the murder, was sentenced to life imprisonment with a minimum term of nineteen years.

To secure a murder conviction, the prosecution usually must prove that the defendant intended to kill or commit serious injury. In this case, a third man and one of a group of four friends present on the day, Cameron Ferguson, had stabbed both Khezihi brothers. Midway through the six-week trial, Ferguson changed his plea to guilty and admitted to the stabbing.

It is under the ancient common law doctrine of joint enterprise that the prosecution can seek a murder conviction if it can prove that a secondary defendant (i.e., someone other than the person wielding the knife) foresaw the ‘possibility’ that death might occur.

The stakes could not have been higher for Henry and Grant-Murray, but they couldn’t have looked more bored. On the grainy screen, the court watched as the pair fidgeted, yawned, rolled their eyes and stretched. Grant-Murray occasionally rested his forehead on the desk in front of him in that universal gesture of profound boredom familiar to teachers up and down the country.

The Lord Chief Justice, Lord Thomas, was flanked by Lady Justice Hallett and Mr Justice Goss. They were considering two joined applications in what was billed as a critical test case on the application of joint enterprise to the very young and very vulnerable. The cases involved young men from west London, barely out of their teens; and, in the second case, boys from Liverpool barely in their teens.

On Wednesday 6 August 2013, Henry and Grant-Murray had been shopping with an old friend, Younis Tayyib. The three had known each other for years. Grant-Murray and Tayyib walked back to the latter’s house when they were confronted by four older boys: the brothers Bourhane and Taqui Khezihi, and two other friends, Dapo Tajani and Leon Thompson.

What followed was random and unplanned: a moment of madness that left one young person dead and ruined the lives of countless others. The events took place in forty-seven seconds.

The facts are disputed.

The stand-off began like countless other fights between young men. Grant-Murray thought Taqui Khezihi had looked at him in a disrespectful way. He was followed by the brothers and their friends. So he walked into a local Costcutter, grabbed the first bottle he saw from a shelf, and returned holding a bottle of rosé by its neck.

All of this was caught on CCTV. Tayyib is clearly shown trying to calm down the situation, physically intervening between his friend and the brothers. According to Alex Henry’s account, he claimed to have seen his friend in trouble as he walked down the road with Cameron Ferguson. Grant-Murray is reported to have then shouted: ‘You’re fucked now.’

As Henry approached, he claimed to have picked up Grant-Murray’s dropped mobile phone, panicked and thrown it at one of his friend’s attackers. He then threw a punch at one of the other gang, which, he said, was in self-defence. On his account, that was the extent of his involvement. Bourhane claimed ‘the white boy’ (Henry) had ‘a shiny object’ in his hand. Tajani told the police it was a knife.

Cameron Ferguson joined in. He grabbed a knife from inside his bag and stabbed Taqui and Bourhane. Everyone fled. Taqui’s injury proved fatal. Henry claimed that it was only hours later, when they regrouped in a local park, that they realised that Ferguson had ‘poked’ the brothers with a knife.

The case is shocking but at the same time, sadly, mundane. It happens all the time. On every day in 2016, three people were killed or seriously injured in stabbings on London’s streets. According to the Metropolitan Police, sixty people were stabbed to death, 1,159 sustained serious injuries and 21,365 were victims of knife crime.

The utter futility of the death of the 21-year-old Taqui Khezihi is underlined by the fact that neither set of boys actually knew each other.

• • •

The second case before the appeal court judges was even more disturbing. Joseph James McGill, Andrew James Hewitt, and Corey Hewitt were just thirteen and fourteen when they took part in the gang killing of Sean McHugh.

They were members of the Laneheads gang from the Townsend Lane area of Anfield and cornered their prey in the back room of a launderette. McHugh had gone to wash his girlfriend’s clothes and happened to be on their ‘turf’. He was a member of the Walton Village Heads, who had been fighting the Laneheads.

The terrified nineteen-year-old barricaded himself in the back room. The gang came armed with knives, a broom handle and what was described as a ‘walking cane sword’, an antique-type martial arts weapon. The attack was captured on the launderette’s CCTV. ‘These were feral youths who didn’t intend to kill, but set out to cause harm and now they must pay the penalty,’ said Detective Chief Inspector Andy O’Connor, of Merseyside Police.

• • •

Joint enterprise has delivered a number of notable convictions. It famously enabled the killers of black teenager Stephen Lawrence to be brought to justice. There was no way of establishing which of the six men involved in the racially motivated attack in south-east London stabbed eighteen-year-old Stephen. However, in 2011, eighteen years after the attack, Gary Dobson and David Norris were jailed thanks to a legal doctrine that has its origins in a rather different form of knife crime.

The 300-year-old doctrine was originally used to help stop aristocrats from duelling by making their surgeons and ‘seconds’ liable for murder. Times have changed, but the law has proved versatile. It is now reckoned to be a key weapon in the fight against gang culture and, in particular, knife crime.

In 2016, almost four out of ten homicides in the UK (213 in total) involved a knife. According to the Crime Survey for England and Wales, a knife was used in 6 per cent of all incidents of violence experienced by adults. In the same year, hospitals recorded 4,119 admissions as a result of stabbings.

Joint enterprise put the three killers of Ben Kinsella behind bars. The sixteen-year-old student was stabbed eleven times in five seconds when he was out celebrating the end of his GCSEs in June 2008 with friends in Islington, north London. The fight started when one boy turned to another and said: ‘What are you staring at?’ After his death, hundreds of people attended a candlelit vigil demanding an end to knife crime.

‘The message that the law is sending out is that we are very willing to see people convicted if they are a part of gang violence – and that violence ends in somebody’s death,’ the former Lord Chancellor, Lord Charlie Falconer, said in 2010.

In the west London case, all four defendants, including Alex Henry, had previous convictions related to the owning of knives. Weeks before the murder, Grant-Murray was stabbed in Sylvester’s barbers in Ealing in the neck, chest and arm. Henry was with his friend at the time. Grant-Murray has always claimed not to know why he was attacked.

Critics of joint enterprise argue that the law has become ‘a dragnet’, hoovering up urban youth, disproportionately black and often vulnerable, in its wake. It indiscriminately pulls those on the periphery, and sometimes not involved in serious criminal acts, into the justice system.

Up to half of those convicted under joint enterprise were from black, Asian and minority ethnic (BAME) backgrounds, according to a 2017 review of the criminal justice system by Labour MP David Lammy. The review revealed that almost nine out of ten of the 3,621 names on the Metropolitan Police’s database of gang suspects were BAME.

• • •

Dr Sally Halsall always worried about her son. From the age of sixteen months, Alex Henry would scream and throw such explosive tantrums that nurseries refused to take in the toddler. When he was three, he was still having meltdowns, and even at the age of ten he would throw what she called ‘all-nighters’.

By then, Dr Halsall had separated from Henry’s father. ‘When I look back on the marriage, we were under so much strain because we knew there was something wrong with Henry. Both his father and I thought that,’ she told me. ‘We also felt that we weren’t believed. We felt that people were thinking there was something wrong with us as parents.’ She recalled taking a screaming Henry to a GP, who referred her to A&E and handed her a sealed letter.

I opened the letter. It read: ‘Mrs Henry is now a well-adjusted mother [she had suffered post-natal depression with Henry’s sister] and has returned to education. I truly believe that there is something wrong with this child. I myself witnessed his projectile vomiting in my consultation room.’ I was horrified.

Alex Henry was eight years old when his parents split up. After a short period of dividing the week between parents, Henry went to live with his father, while Charlotte, Henry’s sister, stayed with her mother. ‘Living with Mum, you come home and dinner is on the table. You sit down and do your homework and bed time is a set time,’ Charlotte told me. She said their father was an alcoholic. ‘Instead of verbally telling you off, it would be more physical,’ she said. ‘You would come home and there would be nothing in the fridge. But it was a fun household at Dad’s. You could hang out with your friends until whatever time you wanted. But there was no structure and Alex needed structure.’

Henry had a short school career. He was badly bullied at primary school and then moved to a private school where he was soon expelled. He was initially refused a place at Charlotte’s secondary school but his parents successfully appealed against this decision. However, after a couple of months there, Henry dropped out at the age of eleven.

Over the next few years, Henry was assessed by many agencies. The year after his parents split up, he was referred to CAMHS, the child and adolescent mental health service, for the first time because of his disruptive behaviour, and then referred again the following year, when he was deemed to be suffering with anxiety and overwhelmed by his parents’ divorce. His mother felt Henry’s father was not providing the discipline her wayward son needed.

When Alex Henry was fourteen years old, he saw a family therapist and was assessed by a senior social worker later that year, who observed that proper boundaries were not being imposed at home. It was noted that Henry avoided eye contact, struggled to sit still and used babyish language.

In 2005, Dr Halsall completed her PhD in psychology researching the implications of bullying in schools. ‘One of the reasons why I did it was because I wanted to get to the bottom of what was wrong with Alex,’ she told me. The mother raised a possible diagnosis of attention deficit hyperactivity disorder. A clinical psychologist agreed.

Following a minor assault in 2007, a youth offending panel assessment recorded his father’s concerns that Henry was running with the MDP gang (as in ‘Money Drugs Power’). It wasn’t all bad. Henry was considered to be academically bright, good at maths and chess, albeit slow at reading. The next year the local youth offending team, concerned about his involvement with the gang, noted that Henry was a bright, charismatic and articulate fifteen-year-old. The MDP gang members were typically in their late teens and early twenties and, according to Charlotte Henry, they briefly adopted her brother as a sort of ‘kiddy mascot’. He left after a few months. One day, in a parting gesture by a gang member, Henry was punched in the face and knocked out as he walked down the street.

Following a serious bullying incident committed with nine others, a psychologist wrote a report for Acton youth court. It noted that there was not enough evidence to support a diagnosis of conduct disorder, a condition defined by persistent problems from aggressive and destructive behaviour, to lying and stealing, carrying weapons or staying out all night. However, the psychologist reckoned that Henry exhibited some symptoms of ADHD.

In April 2009, Alex Henry was charged in relation to threatening behaviour. The youth offender panel report recorded that he had a large group of friends with whom he was ‘besotted’. He was on the receiving end of an antisocial behaviour order (ASBO) preventing him from seeing friends, including Janhelle Grant-Murray, and visiting certain streets.

Charlotte Henry had wanted to be a lawyer from an early age. ‘Ever since I watched Legally Blonde,’ as she put it. ‘When I was eighteen years old, Henry was getting arrested on a regular basis for smoking cannabis, breaching the ASBO etc. I was always the appropriate adult for him. Mum works and Dad drinks, so I was the one who went to the police station.’ She is now training to be a lawyer and working for a government watchdog body.

Alex Henry constantly breached his ASBO and ended up in prison a number of times, including one four-month stretch. ‘Alex’s behaviour was consistently bad until he was seventeen years old,’ recalled Charlotte. After his ASBO came to an end, things calmed down. ‘It was so sad for Alex,’ said his mother. ‘He never had an education. He was never given a chance. He was thrown into prison at every opportunity.’

At no point was Alex Henry diagnosed with autism. Nor was this suggested at his trial.

• • •

Shortly after the trial, Dr Sally Halsall was working at the Institute of Psychiatry when a woman emailed her after reading about her son’s case. Had it ever occurred to her that her son might be autistic, the woman asked? Dr Halsall started reading up on autism and wrote to a number of experts, including Professor Simon Baron-Cohen, director of the Autism Research Centre at Cambridge University, asking him to meet her son.

The professor met Henry twice, in June and December 2014, at his category A prison. He recorded the interview. ‘I didn’t start the fight, and I didn’t stab anyone,’ Henry told Professor Baron-Cohen. ‘Cameron stabbed both of them. It was all over in fifty seconds. I have been accused of joint enterprise … They say I’m guilty of encouraging it. I didn’t know Cameron had a knife at the time. I didn’t know he stabbed someone. He told me after.’

The fight was seen by numerous witnesses. No one saw a knife. Bourhane had claimed that ‘the white boy’ had been holding a ‘shiny object in his hand’, but at the trial Bourhane acknowledged he could not see what the object was.

One of Bourhane’s friends also gave a statement saying that Alex Henry was definitely holding a knife, although in court the friend admitted that he was ‘not 100 per cent sure’. He also described the attacker as being a ‘tall, fair-skinned guy, between black and white complexion… in the middle, kind of’. Cameron Ferguson matched this description. Alex Henry did not: he is white and only 5ft 2in. tall.

At the original trial, all four co-defendants pleaded not guilty to charges of murder and attempted murder. The prosecution’s case was that each defendant played a part in a joint attack on the Khezihi brothers; each knew about the existence of the knife and that it was intended to be used – in other words, the killing was a joint enterprise.

Five days into the trial, Cameron Ferguson changed his plea to guilty. At that point, his barrister said that Ferguson claimed to be the only person who had wielded the knife and had been ‘on a frolic of his own’.

Alex Henry told Professor Baron-Cohen of his past antics: when he was young he was ‘proper naughty’, he admitted. Henry told the doctor that he had always been conscious of being ‘different’. ‘I talk to people in the prison a bit randomly. I play snooker but I don’t get involved in conversation. I like to do Sudoku and crosswords. I spend hours on those. If I’m alone in my cell I stay on computer games all night.’

• • •

On the day of the Grenfell Tower fire, Professor Baron-Cohen was due to give evidence after a lunch break. As we waited for court proceedings to resume, we watched Alex Henry and Jan-helle Grant-Murray via the video link.

The two friends monkeyed around as if they hadn’t a care in the world, seemingly oblivious to the impression they were creating in court. It showed the pair in a poor light – immature and disrespectful to the solemnity of the proceedings. On the other hand, being stuck in front of a video camera in a cell-like office in prison while lawyers decided their fate and spoke an impenetrable language must have seemed a particularly cruel and unusual punishment.

Professor Baron-Cohen is Britain’s leading expert on autism. On his autism spectrum quotient questionnaire, which aims to test whether adults have the condition, Alex Henry scores ‘a very high’ thirty-five out of fifty. The majority of males tend to score seventeen and the average score for females is fifteen. If someone scores over thirty-two, then this suggests that they may have Asperger’s.*

With an air of calm deriving from a peerless command of his area of specialism, the psychiatrist proved a credible and persuasive witness. He was unfazed by a court that was clearly sceptical about a late diagnosis.

As he explained to the court, his clinic in Cambridge has diagnosed over 1,000 people with autism or Asperger Syndrome whose diagnosis also had been overlooked into early adulthood. The signs are subtle and for that reason, he explained, it was often described as an invisible disability.

Autism ‘just doesn’t start out of the blue’, said Professor Baron-Cohen, it was there throughout early development. It manifested itself in difficulties socialising, interpreting emotional expressions as well as understanding jokes. The Crown’s barrister later noted that Alex Henry had been ‘quick to laugh at 2 p.m.’

‘I see autism as a complex disability,’ the psychologist told the court from the witness box. ‘It affects many different functions, including the processing of information. People with autism struggle with situations where there is too much information to take in. It is a major piece of information that the jury needs to know. It is nobody’s fault because the diagnosis hadn’t been made yet.’

Autism was a diagnosis from which all sorts of consequences flowed in the kind of fast-moving situation that took place on 6 August 2013. The incident took less than fifty seconds. ‘People with autism struggle to make rapid decisions under pressure,’ the professor said. They also tended to have ‘a very black-and-white morality – in this instance, he wanted to protect his friend’. Professor Baron-Cohen said autistic people also tended to be ‘very rigid in the application of rules’ and so, for example, would stick to a solicitor’s edict to make ‘no comment’.

Autistic people also made poor choices in friends because they could not read people’s motives, easily became fixated and displayed ‘tunnel vision’, the professor went on. ‘Someone with autism could be mistaken for showing very little remorse,’ Professor Baron-Cohen told the court. This, the professor argued, might in some way account for Henry’s guilty-looking behaviour in the aftermath of the murder. For three days he went on the run from police, and stayed with Ferguson at a friend’s flat in Croydon – despite knowing that Ferguson had murdered Taqui Khezihi. The reason for this, according to Henry, was that he wanted to be present when his girlfriend had a pregnancy scan.

Under the law of joint enterprise, a jury can convict if it is proved that the secondary defendant foresaw the ‘possibility’ that death might occur. That is exactly the kind of subjective judgement an autistic person might well struggle with. As Professor Baron-Cohen made clear, if a typical person had known that Cameron had a knife, they might well have assumed he would use that knife intentionally to kill. Henry’s autism meant that no such assumption could be made. This, the psychiatrist pointed out, was because in people with autism, ‘common-sense’ inferences were not automatically drawn.

• • •

The message from the Metropolitan Police is that the law on joint enterprise is ‘clear and unforgiving’ – as the force says in its ‘Drop the Weapons’ campaign. It delivers, as Lord Falconer noted in 2010, a simple message. The force has a video explaining joint enterprise to schools in London as part of its crackdown on gang crime.

Metropolitan Police Detective Chief Inspector John McFarlane has spoken about the value of joint enterprise as a ‘deterrent’ to young people who might otherwise think they would not go to prison ‘just because they did not deliver the fatal blow’.† It is certainly ‘unforgiving’ but it is also not always clear.

The Met has even sent letters to those it suspects are gang members or else up to no good, warning them they could be sent to prison for ‘just being present when a serious crime is committed’ thanks to joint enterprise. ‘Information indicates that you have or are associated to a gang that is involved with crime,’ read the letter. ‘If you are involved with crime and do not stop you may be targeted by the police and partner agencies. Under a piece of legislation called joint enterprise, you may be convicted of a crime and sent to prison for just being present when a serious crime is committed.’ If you want to avoid the attentions of the Metropolitan Police, the letter warns, ‘you need to change your behaviour’.

Obviously, it is not an offence simply to be present when a crime is committed, serious or otherwise. I interviewed ‘Sean’, a 22-year-old who had such a letter posted through his door. He had convictions for drugs offences but had never been a gang member or carried a knife. He was, in his view, an undeserving victim of police harassment and was unfairly stopped and searched. ‘It’s frightening to think police are watching you like this,’ he told me.

According to the defence lawyer Simon Natas, who has specialised in joint enterprise cases, placing people under this kind of scrutiny (‘in a way that is threatening to them’) was likely to have completely the opposite effect to that intended. ‘You could’ve scared them and got the law accurate. The law is scary,’ he said. ‘But if they are going to send out these letters, at the very least they could get the law right.’

Dr Ben Crewe, from Cambridge University, is unconvinced about the deterrent effect as seemingly endorsed by the Metropolitan Police. In evidence he gave to a 2015 House of Commons’ Justice Committee investigation into joint enterprise, Dr Crewe said that two conditions needed to be met for an effective deterrent. Young people must be aware of joint enterprise and, according to the research, very few people had any idea of what it was; and, if they had, they didn’t understand it. The second condition was that it would have to have an impact on behaviour. Dr Crewe argued that the prospect of being caught was a greater deterrent than length of sentence or severity of any sentence.

The then chair of the Justice Committee, Sir Alan Beith, warned that there was a real danger in justifying joint enterprise on the basis that it sent ‘a signal or delivers a wider social message’, rather than it being necessary to ensure people were found guilty of offences in accordance with the law.

According to statistics obtained by the Bureau of Investigative Journalism under a Freedom of Information request, 1,853 people were prosecuted for homicides involving four or more defendants between 2005 and 2013 which almost certainly relied upon joint enterprise – and 4,590 for homicides involving two or more people.

More than one in five of all Court of Appeal rulings in 2013 related to joint enterprise cases (22 per cent). That was, according to the legal academic Dr Matthew Dyson, a ‘terrifying statistic and evidence of the constant appeals against this doctrine’.

It was also revealed in the 2015 justice committee investigation that some 145 applications had been made to the Criminal Cases Review Commission since 2004 from people convicted under the doctrine. The group explained that there were likely to have been many more applications, but they had not been labelled joint enterprise.

The Bureau of Investigative Journalism, which looked at over 800 published Court of Appeal rulings in its 2014 report, reckoned that the rate at which joint enterprise cases were brought to appeal doubled between 2008 and 2013. In 2008, just over one in ten of Court of Appeal rulings (11 per cent) dealt with convictions where there had been some element of joint enterprise. In 2013, the rate had doubled and accounted for forty-three out of 194 rulings.

In one case, cited by the Bureau of Investigative Journalism, a fifteen-year-old was sentenced to a minimum term of twelve years for murder after the jury decided that his presence at the scene of a stabbing meant he was guilty of murder. He was 120 yards away when the stabbing took place, but the jury decided the teenager had gone to the scene knowing a fight might take place. His solicitor, Greg Stewart, told the Bureau of Investigative Journalism that joint enterprise covered such a range of behaviour and intent that it became ‘a lottery if you are convicted or not’.‡

At the time of the justice committee investigation, the CCRC had made seven referrals in joint enterprise cases since 2004, but only one conviction was quashed. This compared to its average 70 per cent success rate. The CCRC identified three ‘obstacles’ for joint enterprise applicants: the difficulty of finding the new evidence required for an appeal in light of conflicting testimonies from various defendants; the difficulty of that evidence impacting on mens rea (in other words, intention or foresight); and, finally, joint enterprise cases often arose ‘on the spur of the moment’.

• • •

At Alex Henry’s appeal there was the usual large turnout of women in red T-shirts as worn by JENGbA (Joint Enterprise Not Guilty by Association) campaigners. The group runs a formidable grassroots campaign and is composed largely of working-class women with loved ones in prison.

I met one of the group’s leading lights, Gloria Morrison, in the group’s office in a large council estate just off Ladbroke Grove, west London. She and two other volunteers – mothers of black sons serving twenty-four and twenty-eight years respectively – were busy stuffing 543 envelopes with their monthly newsletter. Two years later, JENGbA reckons that they are in touch with 1,000 joint enterprise prisoners.

‘I instinctively knew that joint enterprise was all about racism,’ Morrison told me. She became involved in the campaign as a result of the experience of her son’s best friend. In 2007, Kenneth Alexander was found guilty of murder and given a life sentence as a result of his part in the April 2005 stabbing of Michael Campbell. Alexander had been hit on the back of the head and was semi-conscious when Campbell was killed, Morrison said. ‘It was Alexander’s role in ringing friends to call in reinforcements for a possible confrontation that provided the prosecution with his joint enterprise,’ she said. ‘That he knew some of his mates carried knives, even though he never did, was also a factor in his conviction.’

‘It could have been my son,’ Morrison said. ‘The boys all went to the same Catholic school in west London. All the boys were black. My son is white. They all came from affluent backgrounds. Ken’s mother is a psychologist. The boy who did do the stabbing was the son of a deputy head teacher.’

Every week new families contact JENGbA. The day before I spoke to Morrison she had been at a meeting in Birmingham. ‘Five people contacted us. Almost every single name was Asian,’ she said.

‘I had never even heard of joint enterprise until it happened to me,’ Barbara, one of the JENGbA volunteers, told me. Her son was only nineteen years old when he was sentenced to twenty-four years last March. He was in HMP High Down, Surrey as a result of his part in a fatal stabbing after an altercation with a Somalian gang. She readily admitted her son was involved in the fight that led to the killing. ‘I am not saying he is innocent, but he’s not guilty of murder,’ she said.

After her son was sentenced, Barbara’s other son was attacked by the gang and other members of the family were threatened with having acid thrown in their faces. Barbara ended up being housed temporarily in a safe house with her daughter for a year and has now moved out of Kentish Town.

According to Barbara, her son is holding up.

He knows we are here outside fighting for him. My son always says: ‘I would never change my plea. I am not pleading guilty for something I didn’t do.’ There was no evidence to say that my son had a knife. A boy pleaded guilty on the first day of the trial. The judge sentenced my son and a co-defendant to longer than the kid who actually did it. They didn’t have any weapons on them. Sentence them to the part that they played – but not to murder. I just don’t understand it.

Gloria Morrison says that she and her colleagues don’t sit ‘as judge and jury’ when someone rings up. ‘I say to them: “You do not have to prove it to me what their involvement was, if any.” They have already been tried once in a court of law which I do not trust any more. If the courts are using this kind of charge, they don’t have any credibility.’

• • •

‘The courts took a wrong turn in 1984,’ said Lord Neuberger, President of the Supreme Court, in February 2016. ‘This court is always very cautious before departing from a previous decision. It is the responsibility of this court to put the law right.’

JENGbA campaigners and their lawyers hugged each other. The Criminal Bar Association issued a press release declaring the ruling ‘a masterpiece of modern legal reasoning’ that ‘significantly enhanced our justice system and will be widely welcomed’.

There was not universal approval. Commentators predicted ‘hundreds of convicted killers’ would be walking free, including the killers of Stephen Lawrence. The appeal concerned the case of Ameen Jogee. It was another difficult case. Paul Fyfe was stabbed to death in the hallway of his girlfriend’s home in the early hours of the morning in June 2011 by Mohammed Hirsi, who pleaded guilty to murder. Jogee and Hirsi spent the night getting high on a cocktail of drink and drugs before they arrived at the home of Fyfe’s girlfriend close to midnight. The girlfriend told them to leave and that she was expecting Fyfe to return. Hirsi entered the house and there was an angry confrontation between him and Fyfe. Jogee was outside with a bottle, egging Hirsi on to do something to Fyfe. At one stage Jogee came to the door and threatened to smash his bottle over Fyfe’s head. The fatal stabbing was done by Hirsi with a knife taken from the kitchen.

The Sun spoke to Paul Fyfe’s widow, Tracey. ‘I think [joint enterprise] is a very important law and it think it would be quite devastating for the victims’ families like us, which would mean that criminals like Ameen Jogee would literally be getting away with murder,’ she said.

The Supreme Court sought to restore the pre-1984 position – and so for a secondary defendant to be found guilty of a crime they would need to have ‘intentionally assisted or encouraged’ the crime committed rather than merely having had some ‘foresight’ that the crime might take place. ‘The correct rule is that foresight is simply evidence, albeit sometimes strong evidence, of intent to assist or encourage, which is the proper mental element for establishing secondary liability,’ Lord Neuberger said.

Six months after the landmark ruling in Jogee, the Court of Appeal looked at the first wave of appeals sent back. Where an appeal is brought outside of the normal 28-day limit, the appellant must seek exceptional leave to appeal to the Court of Appeal. Under the Jogee ruling, permission to appeal would be granted only if ‘substantial injustice’ had been caused and not simply because the law was wrong.

Dr Sally Halsall and Charlotte Henry were in the Supreme Court. ‘We thought if you have been convicted of murder, and you might not have been convicted of murder but convicted of manslaughter, then obviously that is a “substantial injustice’,” Charlotte explained. ‘The mandatory minimum term is life imprisonment plus the stigma of being labelled a murderer. It’s common sense.’

Sitting alone and looking out at the women in their red T-shirts, the Lord Chief Justice, Lord Thomas, read out a short statement denying leave to appeal to all thirteen defendants in six cases. He reached the end of the judgment to sounds of a woman sobbing in the corridor. Shouts of ‘No justice, no peace’ rang out as the judge walked out of the courtroom.

• • •

The following year, Lord Thomas read out the judgment in the cases of Alex Henry, Janhelle Grant-Murray and three Liverpool boys. One of the boys, Joseph McGill, just thirteen years old at the time of Khezihi’s murder, was diagnosed with ADHD and, in terms of his cognitive ability, was reckoned to be in the bottom 5 per cent for children of his age. Corey Hewitt, also thirteen at the time, was in the bottom 2 per cent and had an IQ of sixty-nine. All five relied upon the Jogee ruling.

It was another wipeout in the Court of Appeal.

The bench had little sympathy for Professor Baron-Cohen’s insight into Alex Henry. ‘It seems to us, having regard to all the evidence, that it can have had no effect on the issue of Henry’s thinking process at the time of the murder in the respects identified by Professor Baron-Cohen,’ they said. At worst, they ruled Henry suffered from ‘mild mental illness that was immaterial to his culpability for murder’.

Some six months after the Court of Appeal hearing, I interviewed Professor Baron-Cohen. I asked him what impression his day in court had made on him. ‘It felt as though the prosecution had ambushed me and also that I hadn’t been adequately briefed by the defence team,’ he told me. As an expert, he understood his role was ‘to be there to serve the court rather than either side’. ‘Frankly, that wasn’t what it felt like,’ he said.

The doctor felt that the prosecuting counsel’s interrogation of him was ‘bordering on the offensive’. ‘I had to be quite restrained in how I replied,’ he said. In particular, he resented the suggestion that Henry’s mother, Dr Sally Halsall, might have tried to dupe him. He pointed out that he visited Henry a second time in prison, after receiving an anonymous letter suggesting he was having the wool pulled over his eyes.

Professor Baron-Cohen accepted the court’s offer to examine all of the reports on Alex Henry and submitted a second report on that basis after the hearing. ‘It didn’t change my diagnosis. If anything, it bolstered it,’ he said.

Why, I asked, did he agree to see Alex Henry in the first place? He said it was because of his concerns about joint enterprise. ‘It’s the potential for miscarriages of justice,’ he told me.

That someone is guilty by association for being in the wrong place at the wrong time. Even if there was no evidence that they did anything to hurt somebody. The idea that any of us will be able to make a level-headed decision in such a short period of time, less than fifty seconds in this case, would be challenging, but for somebody with autism that would be even harder. If expert witness evidence is dismissed so readily, this is a very worrying sign of how the courts take into account disabilities such as autism.

* According to Professor Baron-Cohen, about 80 per cent of people who end up with a diagnosis for Asperger’s score above thirty-two. The spectrum is not a diagnostic instrument, Baron-Cohen told me. ‘We would not claim you can diagnose on the basis of a questionnaire, but it is a useful screening instrument.’

† He was speaking after the sentencing of the killers of fifteen-year-old Zac Olumegbon in 2011.

‡ On 2 October 2007, a 26-year-old Polish care worker, Magda Pniewska, walked home from the nursing home where she worked in south London. As she was talking to her sister on her mobile phone, she was struck in the head by a single bullet and died instantly. The man who fired the fatal shot was never prosecuted. Known only as ‘bandana-man’, he escaped. The other gunman, Armel Gnango, seventeen, was convicted of her murder in 2008. The ruling was upheld by the Supreme Court in 2011.