by Satish Sekar © Satish Sekar (December 30th 2014)
Referral
The Criminal Cases Review Commission (CCRC) recently announced that it would investigate the conviction of Jordan Cunliffe. Then just 15 Cunliffe was convicted of the shocking 2007 murder of salesman Garry Newlove. Mr Newlove was kicked to death outside of his home in Warrington. A group of youths looked on.
Cunliffe was convicted using the controversial centuries old legal principle of Joint Enterprise. This was also used to secure convictions for the murder of aspiring architect Stephen Lawrence. The CCRC will begin its investigation of Cunliffeʼs case in February 2015. Newloveʼs widow, Helen, was made a Baroness in 2010. That year she expressed strong support for Joint Enterprise.
“Would you stand there watching somebody else kicking and punching”?, she said in 2010. “Would you actually think that was right to watch, even if you didn’t do the act? They were all as guilty as the person doing the act”. Cunliffe was there, but insists that he did not take part in the attack. Along with Adam Swellings and Stephen Sorton, Cunliffe was sentenced to life imprisonment.
Victimʼs Commissioner
In 2012 the Conservative peer belatedly succeeded Louise Casey as Victimsʼ Commissioner. The duties of the Commissioner is to ensure that victims are treated with the utmost respect. The Commissioner must be independent of any political partiality or persuasion, meaning that Baroness Newlove must keep her political beliefs out of her role as Victimsʼ Commissioner.
The following principles are core to the office of the Commissioner: inclusivity representing all victims and witnesses, including the most vulnerable members of our community; transparency in the way that decisions are made, business is conducted and the office operates; and encouraging responsibility through work with all criminal justice and local agencies to ensure the voices of victims and witnesses are heard and that each organisation takes responsibility for victims and witnesses.
As it says on its website, Newloveʼs role as Victimsʼ Commissioner is to “promote the interests of victims and witnesses, encourage good practice in their treatment, and regularly review the Code of Practice for Victims which sets out the services victims can expect to receive”.
The Code details the treatment that victims are entitled to receive from the various agencies. It was revised recently. Among the rights is information on restorative justice. “Victims should be put first in every case no matter what the crime or sentence”, Newlove said recently. “Crime can rip victims and their families apart – they deserve to be treated with respect and dignity by everyone involved. Although sentencing in individual cases is a matter for the courts – they still need to be sensitive to those who have suffered loss”.
More Equal Than Others
Victims must be treated with respect. Nobody could disagree, but does this apply to all victims and if not why not? We have pointed out previously that the Cardiff Five is an absolutely unique case. Not only were they the victims of a truly shocking and appalling miscarriage of justice, but also a crime – perjury. The conviction of Mark Grommek, Angela Psaila and Learnne Vilday in 2008 for that offence meant that they were victims of a crime.
We pointed this out to various agencies, arguing that these victims had been thoroughly let down. The judge who sentenced the real killer of Lynette White, Jeffrey Gafoor, to life imprisonment told him that the most serious aggravating circumstance was that he had allowed innocent people to go to prison for a crime he knew he had committed.
The Cardiff Five were plainly victims, yet they were not accorded any of the courtesies due to victims. They were not given the right to make victim impact statements before the tariff was imposed (see The Rights of the Forgotten Victims – Victim Impact Statements at http://fittedin.org/fittedin/?p=751 and The Rights of the Forgotten Victims – Undue Leniency at http://fittedin.org/fittedin/?p=753). Why not? Yusef Abdullahi and Ronnie Actie died without even reaching 50, deprived of after-care that may have prolonged and improved the quality of their lives (see A Lack of Care at http://fittedin.org/fittedin/?p=709).
All victims are equal, but it seems that some are more equal than others.
The leading case is the High Court decision of Giorgianni, 103 in which the Court held that ‘aiding, abetting, counselling or procuring’ required that the defendant must intentionally assist or encourage the commission of offence by the principal offender, with knowledge of the essential matters which constitute the offence. Recklessness or wilful blindness will not suffice for liability.
.Associational elements and mere presence at the scene alone underpins Cunliffe’s murder conviction, the proper core elements of true culpability are missing from Cunliffe’s conviction. Considering all the evidence, Jordan Cunliffe has;
1, A Lack of intent to commit the offence
2. A lack of agreement to commit the offence
3. A lack of involvement in the commission of the offence
4 A lack of assistance in the offence
5 A lack of encouragement in said offence.
6. A lack of knowledge or preplanning that this spontaneous act was about to take place.
7. Even if Cunliffe had 20/20 vision he is not obliged in law to intervene because; at common law, there is no liability for an omission in the absence of an express or implied duty to act. Even the American Model Penal Code has codified this principle.
These are some of the reasons for supporting Jordan’s innocence, not because of his eyesight
“Per se”. However, his eyesight may well be relevant to other issues. For instance, one of the many tests in law is; would this crime have still happened had Cunliffe not have been present? The Crowns claim that being in a group would have given them (the accused) the bravado to challenge Mr Newlove. Nevertheless, there is no evidence that Sorton or Swellings were relying on Cunliffe with his known eye condition to assist them in that regard. Neither is it the case that Cunliffe himself had any propensity to violence in his records. Neither is it the case that any witness has come forward to say that he gave those persons voluntary encouragement at any point during or before or during the attack. Suggestions that he made remarks after the event are not relevant to his alleged culpability. The evidence suggests the attack would have taken place even if he had not been there .Even if, Cunliffe’s presence gave them “involuntarily” encouragement that is not a source of liability, and in any event, it is known that there were girls that were close by watching events unfold when these actions took place. It may well be that it was they who provided bravado so why single out and charge Cunliffe upon such logic when many others present at the scene were not charged? It is far more likely to have encouraged Sorton and Swellings, because they (Sorton and Swellings) would not have wanted to lose face with those girls looking on. But again there is no evidence that that possible encouragement from the girls was intentional, so Jordan was charged and they were not, despite there being no fundamental difference between there situations?
We are all fallible, not just individuals, but also governments, societies, and in this case the law.
Please note that the Fitted-In Project does not have a position on Joint Enterprise. The Fitted-In Project belongs to its members, and currently, none of the members have taken any position on Joint Enterprise, which would need to be in the form of a resolution to a meeting of the FIP or a proposal for a project that we would conduct.
Also, kindly note that the actual article “The Forgotten Victimsʼ Rights” was consistent with our projects on After-care and on Just Tariffs, but that it did not take a position on Joint Enterprise for the reasons stated above, even though individual members may well have strong views on Joint Enterprise.
This article was intended to highlight the unfairness of the treatment of miscarriage of justice victims who are also victims of crime such as the Cardiff Five. The Fitted-In Project is concerned by the silence of advocates of Victimsʼ Rights on this. There is no question that they were victims of a criminal offence and as such their rights as victims of crime should have been championed by the Victimsʼ Commissioner among others. Sadly this has not been the case. Baroness Helen Newlove should explain the position of her Office in relation to victims of such crimes.
I am not allowed to express my personal opinions unless they are shared by the FIP and have gone through the proper channels. This is why my article did not take a position on Joint Enterprise. In a personal capacity I have an opinion on the case of Jordan Cunliffe, but I cannot advocate it here, due to my obligations to follow the procedures of the Fitted-In Project. If this was the site of a magazine rather than that of a not for profit organisation that would not apply, but it does.