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Dr Felicity Gerry QC writes on race and joint enterprise murder for The Justice Gap
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  3. Dr Felicity Gerry QC Writes On Race And Joint Enterprise Murder For The Justice Gap

Dr Felicity Gerry QC writes on race and joint enterprise murder for The Justice Gap

Published: 3rd May 2022

Dr Felicity Gerry QC writes on race and joint enterprise murder for The Justice Gap with some suggested legal reform in England and Wales.

Read more here https://www.thejusticegap.com/why-race-is-an-issue-in-joint-enterprise-murder-and-what-are-the-solutions/

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Dr Felicity Gerry KC secures Not Guilty verdicts in two trials for the same client. Not guilty verdicts were returned on murder and manslaughter on 14 January 2025 at the Old Bailey in Felicity’s defence trial where a year ago a jury returned not guilty verdicts but then said there had been a ‘mistake’ and were instead discharged without their verdicts being accepted. This time there were no errors, and the not guilty verdicts were returned in 55 minutes. Felicity had challenged the decision not to accept the original verdicts in the High Court on a writ for Habeas Corpus, combined with an application for judicial review and at the Crown Court on an application to stay the retrial indictment as an abuse of process. Ultimately the retrial jury heard all the evidence including that each defendant had acted in reasonable self-defence, where the CCTV showed the victim and his associates as carrying what the pathologist described as lethal weapons.  Of interest is the development of a jury “script”. The retrial jury were asked to write down their verdicts before delivering them in court to reduce the risk of mistake or “stage fright”. We are not yet at the stage where the written verdicts are given to the court clerk to read out, to remove the personal attention on the foreperson, but, nonetheless, this case was an historic win for more than one reason. To read more about the news on this case, click here Standard News
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Joint Enterprise Murder and Persons with Disabilities Alex Henry (Alex) was born 3 December 1992. Alex has Autism Spectrum Disorder (‘ASD’). ASD is a lifelong neurodevelopmental disability which affects how people interpret the world and understand it. It affects more than one in 100 people. Despite its prevalence, it remains poorly understood, stigmatised and stereotyped. Alex has been imprisoned since 2014 as an alleged accessory to murder. ASD is frequently mis-diagnosed, under-diagnosed and stigmatised – often it is not picked up until a person is an adult. Alex was not diagnosed until after he was convicted and sentenced. The expert ASD diagnosis by Professor Simon Baron Cohen in 2016 was independently confirmed by two further experts.  It was accepted at sentence that the friend was the killer. He was sentenced to life imprisonment with a mandatory minimum of 22 years. Alex was sentenced to mandatory life imprisonment with a mandatory minimum term of 19 years. Alex will be 40 by the time he can apply for parole. Following which he will be on ‘life licence’ and subject to recall for the rest of his life. In 2014, a single judge at the Court of Appeal of England and Wales Criminal Division (‘COA’) refused Alex permission to appeal. Two years later Alex’s ASD was finally diagnosed. As is well known, in 2016, the UK Supreme Court held in R v Jogee that the law on JE had ‘taken a wrong turn’ for 30 years. The court held that the use of ‘realised’ (foreseeing the possibility of a crime) was an error of law. This means that the use of ‘realised’ in legal directions to the jury in Alex’s trial was an error of law. On 2 March 2016, following the R v Jogee decision, Alex sought leave to appeal out of time to the full court of the COA on the basis that the trial jury was wrongly directed in law, and relying on his ASD diagnosis. Professor Baron Cohen was subject to cross-examination, even though the Prosecution submitted no contrary expert opinion. In 2016, it was decided by the COA in R v Johnson [2016] EWCA Crim 1613 that the burden to prove a ‘substantial injustice’ is on the applicant, and that it is a ‘high threshold’. Alex’s appeal was rejected on the basis he had not suffered such an injustice despite his ASD not being known and him serving a life sentence for not killing anyone. The decision appears contrary to Jacobs [2023] EWCA Crim 1503, where the COA held that autism is not relevant to reasonable belief as a matter of principle, but it may be relevant on the facts of the case if the belief depends on an impaired ability to read social signals. The COA also assessed Alex’s behavioural ASD traits as bad character, stating: ‘[i]t was clear based on the materials before [them] that Henry has a significant history in relation to behavioral problems which originated from at least 2002; he was assessed on several occasions to ascertain whether he had any mental illness’[para 37 – of course ASD is not a mental illness but a neurodivergent condition] On 12 September 2017, an application for a certificate for leave to appeal to the UK Supreme Court (UKSC) arguing that the control by the COA of UKSC appeals is contrary to the rights of a disabled person was rejected.  Applications to the ECHR and the CCRC have also been refused, as has a petition for mercy to the former Secretary of State for Justice. Unhelpfully, the CCRC gave its opinion on the proposed conditional pardon which would have allowed for Alex’s release. The CCRC acknowledged Alex’s ASD diagnosis but iterated Alex’s ‘bad character’ ignoring the link between ASD and his behaviour. Neither the Secretary nor the CCRC examined the practices in the criminal justice system (CJS) for people with ASD. On 12 September 2024 a report by the Centre for Criminal Justice Studies found that JE laws are vague and wide in scope, causing systemic injustice, including overcriminalisation, over-punishment, discriminatory outcomes, and convictions where there is no compelling evidence of intent and a defendant’s physical contribution is minimal’. The author, Nisha Waller states: ‘The current law encourages the overcharging of suspects and allows cases to be propelled forward based on poor-quality evidence.’ In 2022 the Autism Research Centre, University of Cambridge found that an overwhelming majority of ASD accused persons were not provided with adequate support or adjustments in the UK Criminal Justice System. This followed an Equality and Human Rights Commission report in June 2020 that warned that the CJS is failing those with learning disabilities and autistic people. The Cambridge report noted that there was almost no research investigating how autistic defendants are being treated within the CJS. In 2024 an expert consensus was published on the identification and support of individuals with ASD in within the UK CJS. It concluded that greater attention needs to be given to this potentially vulnerable population when navigating the CJS. However, there is some recognition on sentencing: In 2020 the UK Sentencing Council published guidelines specifying that mental disorders, developmental disorders and neurological disorders should be considered in sentencing – noting specifically that no adverse inference should be drawn if an offender had not been formally diagnosed. ASD affects Alex’s ability to assess the conduct and intentions of others. Communication differences mean that Alex is also always at risk of being misunderstood. Alex’s ASD diagnosis is therefore directly relevant to his actions in relation to his conviction and whether he could know (or realise) what someone else would do. His ASD diagnosis gives rise to serious doubt on his alleged culpability The expressions of the impairments caused by ASD should also have been taken in account when weighing the person’s criminal responsibility and sentence. Alex’s latest move is an application to the Committee on the Rights of Persons with Disabilities: It is suggested that, as a person with a disability and the UK has violated Alex Henry’s rights under the Convention. His experience at all stages of the UK criminal justice system is argued to be discriminatory and inequitable. He has not been able to effectively participate in a criminal proceeding where his ASD is known and properly addressed. The UK is obligated to ensure Alex is both ‘equal before the law’ and ‘equal under the law’ (Article 5 CRPD); this means that Alex has the right to be protected by the law and has the right to use the law for personal benefit. This interpretation requires existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities to be modified or abolished. Additionally, the protection and promotion of the rights of persons with disabilities should be considered in all policies and programs. State parties must take positive actions to ensure that Alex can have full enjoyment – this includes accommodating his needs within legal processes. The application alleges that Alex’s rights were denied through failures at every stage of trial and appeal, including drawing adverse inferences from his silence in police interview. The consequence of Alex’s case is that any young person with ASD ‘involved’ in crowd violence is at risk of a life sentence, even if they are not able to assess what another person would do and even if they make no significant contribution to the crime. The result is the imposition of a harsh and grossly disproportionate sentence exacerbated by being labelled with ‘murder’ which is especially difficult for parole purposes. Thus, it is suggested that the UK has violated his CRPD rights and is perpetuating discriminatory customs and practices as opposed to supporting their modification or abolishment. It is not known whether his application will be accepted but Alex’s is a case that highlights some complex issues for Westminster. Felicity represents Alex pro bono and is instructed by Dean Kingham of Reece Thomas Watson Solicitors.
Felicity Gerry KC
Chambers & Partners and Legal 500 Guides 2025 – Our Rankings Announced Libertas Chambers are delighted to announce that we, and 13 of our Barristers have been ranked in both the latest editions of Chambers & Partners and the Legal 500 directories for 2025. Libertas thanks all those who provided such positive assessments and congratulates all our clients, partners and colleagues who have also been ranked. Head of Chambers, Simon Csoka comments “In Libertas Chambers’ fourth year we have continued to thrive, with members engaged in high profile fraud and criminal trials across the country and beyond. We are delighted to see many of our silks and juniors ranked as leading practitioners in Crime and Financial Crime / Fraud. We congratulate them all and also acknowledge the many achievements of all of our other members over the last 12 months, together with the hard work of our clerking team. We also extend our gratitude to our instructing solicitors for their continuing support and their positive feedback in the guides.” Chambers & Partners Ranks – Click to view the members profile, including ranks and recomendations. Simon Csoka KC – Crime, Band 3 Felicity Gerry KC – Crime, Band 4 Adam Kane KC – Crime, Band 2 M Ayaz Qazi KC – Crime, New Silks Roxanne Morrell – Crime, Band 5 Oliver Cook – Crime, Band 5 Marie Spenwyn – Crime, Band 5 Jane Greenhalgh – Crime, Band 3 James Walker – Crime, Band 6 Gulam Ahmed – Crime, Band 6 Gerard Hillman – Crime, Band 4 Frances Hertzog – Crime, Band 6   Libertas Clerking Team & Department – Crime, Band 4 Simon Csoka KC – Financial Crime, Band 2 Adam Kane KC – Financial Crime, Band 3 Keith Mitchell – Financial Crime, Band 3 Gerard Hillman – Financial Crime, Band 3 Libertas Clerking Team & Department – Financial Crime, Band 4   Legal 500 Ranks Libertas Chambers – Ranked 4 in Crime Libertas Chambers ‘is a growing set with a number of leading barristers’, with particular strength in depth when it comes to senior juniors. Adam Kane KC specialises in homicide defence – he recently represented Mohammed Patel, accused alongside TikTok personality Mahek Bukhari and her mother of the murder of the mother’s lover and his friend by way of ramming their car off the road during a high-speed chase on a dual carriageway near Leicester; Patel was ultimately found not guilty of both murder and manslaughter, while Bukhari and her mother were sentenced to life imprisonment with minimum terms of 31 years and 26 years respectively. Felicity Gerry KC is a ‘very sound academic lawyer who takes interesting and novel legal points’ – she recently defended a man charged with the joint enterprise murder by stabbing near Waterloo Station, submitting to the judge that it is not possible to convict accessories when the principal is acquitted on the basis of self-defence. Testimonials Collated independently by Legal 500 research team. ‘Marc King is a brilliant clerk who runs the clerks’ room in a very efficient manner. He has his finger on the pulse and always seems to put the right barrister on the right job.’ ‘Gary Douglas is extremely hard-working. He is constantly making sure clients are updated at all times.’ Individual Rankings – Silks – Fraud: Crime Gary Bell KC – Libertas Chambers – Fraud: Crime Tier 3 Adam Kane KC – Libertas Chambers – Fraud: Crime Tier 3 Simon Csoka KC – Libertas Chambers– Fraud: Crime Tier 4 Individual Rankings – Juniors – Fraud: Crime Keith Mitchell – Libertas Chambers – Fraud: Crime Tier 2 Individual Rankings – Silks – Crime Felicity Gerry KC – Libertas Chambers – Crime Tier 3 Adam Kane KC – Libertas Chambers – Crime Tier 3 Simon Csoka KC – Libertas Chambers – Crime Tier 3 Individual Rankings – Juniors – Crime Oliver Cook – Libertas Chambers – Tier 3 Matthew Lawson – Libertas Chambers – Tier 3 Gulam Ahmed – Libertas Chambers – Tier 4 Jon Anders – Libertas Chambers – Tier 4 Sarah Day – Libertas Chambers – Tier 4 Jane Greenhalgh – Libertas Chambers – Tier 4 Gerard Hillman – Libertas Chambers – Tier 4 Marie Spenwyn – Libertas Chambers – Tier 4
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