Joint Enterprise (Significant Contribution) Bill
Friday 2nd February 2024
(10 months, 2 weeks ago)
Commons ChamberRead Full debate Joint Enterprise (Significant Contribution) Bill 2023-24 Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Kim Johnson (Liverpool, Riverside) (Lab)
I beg to move, That the Bill be now read a Second time.
Before I begin, I pay tribute to the incredible people who have made it possible for us to be here today, challenging the shocking miscarriage of justice that is joint enterprise. I want to say a massive thanks to Joint Enterprise Not Guilty by Association families and campaigners both inside and outside prison, some of whom are in the Gallery. Their perseverance and determination has allowed me to present the Bill. Since the early days of the campaign back in 2010, they have fought fearlessly and tirelessly against some of the most powerful British institutions for truth and justice to get to where we are today. They have never given up, and the Bill is a result of their work. I am so proud to have the privilege of working alongside them and bringing their campaign to Parliament.
I thank the many other people who have supported this campaign and helped to raise awareness of and support for our demands. My deepest gratitude goes to Jimmy McGovern, the indomitable screenwriter from my home city of Liverpool, Colin McKeown, the talented Northern Irish film maker, their teams and whole cast of the film “Common”, some of whom are in the Gallery. That film, brought to our screens a decade ago, accurately depicts the injustice of joint enterprise. Massive thanks to LA Productions for so generously producing a half-hour condensed version for us to show at our event in Parliament this week. I urge those who have not seen “Common” to watch it—it is more powerful than “Mr Bates vs The Post Office”, and I understand that it will be available shortly.
I pay tribute to the work of Becky Clarke and Patrick Williams at Manchester Metropolitan University, who went above and beyond to produce research on the costs of joint enterprise and have reminded us of the importance of not losing sight of its devastating social cost. Their guidance and expertise throughout this process have been invaluable. I thank Felicity Gerry KC, Professor Matthew Dyson and Nisha Waller from the University of Oxford, who as part of a wider working group organised by the Centre for Crime and Justice Studies drew up the simple, common-sense wording of the Bill. I also thank them for their legal support during the campaign. Their commitment to righting this wrong turn in the law has helped to bring the campaign as far as it can possibly go through the courts. Now, together, we have brought it to Parliament. I hope that today will be another step towards righting this massive wrong.
I thank the many hon. Members who have taken up this campaign and helped us to get where we are today, notably my hon. Friend the Member for Huddersfield (Mr Sheerman) and the right hon. Member for Sutton Coldfield (Mr Mitchell). I give special thanks to my hon. Friend the Member for Bootle (Peter Dowd) for his assistance by tabling an amendment to the Criminal Justice Bill just this week that mirrors the Bill we are discussing today.
When I was informed that I had been successful in the private Member’s Bill ballot, I was a bit like a frightened bunny rabbit in the headlights, but with the help and guidance of the hon. Member for Castle Point (Rebecca Harris), I feel confident that I made the right choice by picking joint enterprise as the subject of my private Member’s Bill. I also thank the Under-Secretary of State for Justice, the hon. Member for Newbury (Laura Farris) for her constructive dialogue in the run-up to this debate.
Dawn Butler (Brent Central) (Lab)
I congratulate my hon. Friend on her excellent Bill. The work by all the people she has mentioned, including Joint Enterprise Not Guilty by Association, on the Bill has been so important. The Supreme Court has said that joint enterprise has been wrongly interpreted by criminal trial judges for the past 30 years. Does she agree that that is terrible?
Kim Johnson
I do, and I will come to that point later in my speech.
I thank the cross-party sponsors of my Bill, notably the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the esteemed Chair of the Justice Committee. His support throughout this process has been invaluable and has demonstrated clearly the potential of the Bill to create cross-party consensus.
Florence Eshalomi (Vauxhall) (Lab/Co-op)
My hon. Friend is making a powerful speech. She mentioned the hon. Member for Bromley and Chislehurst (Sir Robert Neill). His support shows the cross-party support for looking at how a majority of our young people are wrongly criminalised and locked behind bars, and their lives thrown away. Does she agree that this Bill is important, and that we should take the criminalisation of young people away from party politics?
Kim Johnson
I totally agree with my hon. Friend’s point about the criminalisation of our young black people. We need cross-party consensus.
Lastly, I thank my A-team, Becky and Charley, who have been truly amazing.
Before I begin my arguments, I recognise that this is an incredibly difficult and sensitive topic, because behind each joint enterprise case there are victims of crime and their families, many of whom have lost loved ones in situations that most of us find difficult to comprehend. Behind each joint enterprise miscarriage of justice there are people—loved ones, whole families—whose lives have been torn apart by an unjust lifelong sentence where someone has been wrongly punished for the crime of another.
Jeremy Corbyn (Islington North) (Ind)
My hon. Friend is making an excellent contribution about a very important Bill. Does she agree that many of the predominantly young people ensnared by joint enterprise come from inner-city black communities? Their families are devastated and often lack the media and political connections to mount an urgent and rapid legal case or campaign, so these young people end up spending several years in prison for an offence they did not commit. Their lives are subsequently damaged severely. This Bill is very necessary. The injustice has gone on for a very long time.
Kim Johnson
I agree that the Bill will look at righting those wrongs and challenging those miscarriages of justice.
Philip Davies (Shipley) (Con)
Can the hon. Lady confirm whether the leader of her party supports the Bill?
Kim Johnson
I can confirm that the party will be looking at this Bill when we are in power and when we get rid of—well, when we are in power.
It is possible both to uphold the law by providing powers to prosecute those who play a significant role in a crime and to prevent innocent people from going to jail. There is cross-party consensus that things need to change and that it is now up to Parliament to act. That is what this Bill seeks to do—no more, no less.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
Does my hon. Friend agree that the campaign on joint enterprise is not about guilty people getting off, but about having a justice system that works for everyone? The Chair of the Justice Committee and I co-chair the all-party parliamentary group on miscarriages of justice, and we believe that this is the biggest injustice in the criminal justice system. There is a growing feeling across the criminal justice system, including among senior judges, that the balance has to be got right.
Kim Johnson
I totally agree with my hon. Friend, and I will cover some of those points in my speech. I hope that the Minister will listen closely to the arguments I put forward today and fully consider this opportunity to end this injustice, which has destroyed so many lives and places undue burdens on the courts, the prison system and the taxpayer.
As the Minister will know, joint enterprise is the centuries-old legal doctrine that was intended to give powers to prosecute people who were not the primary actor but nevertheless played a role in a crime, such as a getaway driver in a bank robbery. However, something has gone profoundly wrong in the way the law has been used for the past 40 years, as the Supreme Court recognised in the 2016 landmark case of Ameen Jogee.
Apsana Begum (Poplar and Limehouse) (Lab)
My hon. Friend is making a powerful speech. Research including the 2022 report from the Centre for Crime and Justice Studies has found that following the landmark 2016 Supreme Court judgment, which had been expected to lead to a reduction in these types of prosecutions and convictions, not only has there been no discernible effect, but the number of black people convicted of murder has actually risen. Does my hon. Friend agree that that is one of the reasons the Bill is needed?
Kim Johnson
My hon. Friend makes a valid point on the consequences of the landmark case of Ameen Jogee, whose mum is in the Gallery today. People are being given mandatory life sentences for murders that they did not commit. Thousands have been locked up for life because they have been deemed, in effect, guilty by association. Since that ruling very little has changed, with only one successful appeal, as is shown in the research by the Centre for Crime and Justice Studies that my hon. Friend referred to.
Grahame Morris (Easington) (Lab)
I compliment my hon. Friend on bringing forward this private Member’s Bill. Through her good offices, I have had the opportunity to meet some of the families involved. To describe some of the cases as egregious injustices is no understatement. One of the appalling things I have found is the inconsistent way in which joint enterprise guilt by association has been applied. There are cases where one might think it would have been applied, such as in the murder of Jay Abatan in 1999. I would like to highlight the Justice for Jay Abatan campaign, which is still fighting for justice 25 years on.
Kim Johnson
I thank my hon. Friend for raising that point and particularly for raising the Justice for Jay Abatan campaign, which is very similar to the Stephen Lawrence campaign.
The Centre for Crime and Justice Studies suggests that the 2016 judgment had little to no effect on the number of joint enterprise charges or convictions. Indeed, since 2016 there has been a new legal problem, whereby juries are deliberately not directed to consider the contribution that a person made to a crime, as in the case of Faisal Fiaz, who was in a parked car that was streets away from where the murder for which he was convicted occurred. Only Parliament can fix this.
A charge of joint enterprise too often leads to an assumption of guilt in the courtroom, with the defendant having to prove their innocence, turning our justice system on its head. This is a failure of our justice system, which is supposedly the best in the world, and an affront to the taxpayer, who is left footing the bill for sloppy sentencing. To quote Jimmy McGovern’s “Common”,
“joint enterprise might allow it, natural justice does not.”
If passed, my Bill will fix this wrong turn and help to return the law to its original intention.
Joint enterprise is currently wielded as a blunt instrument by the courts, allowing people who have not made a significant contribution to a murder to receive a mandatory life sentence. Lawyers and campaigners often describe the decision to prosecute or sentence someone to life as Russian roulette. My Bill seeks to enshrine in law the condition that a person can be prosecuted under joint enterprise only where they are proven to have significantly contributed to a crime. This would raise the bar for prosecution and provide the jury with the tools to differentiate between defendants who deserve to face a mandatory life sentence for the role they played in a serious crime and those who do not. There are countless cases where it is clear that we need a change in the law to provide juries with the basic legal test contained in my Bill.
Richard Fuller (North East Bedfordshire) (Con)
May I compliment the hon. Lady on bringing forward this Bill? I am very grateful to her, because it has enabled me to look at some of the background information in the note that she sent and at some of the judgments that the Supreme Court made, which I would not have been aware of. I am grateful to her for pointing out at the start of her speech that there are victims involved. We have to make sure that we protect them and their feelings, and that justice is seen to be done.
One of the concerns that we on the Government side of the House have is that, in the past, people who were given life sentences for serious crimes would have been out after six or seven years—life sentences did not mean life sentences. I want to make sure that when judges hand down a life sentence, it really is a life sentence. However, that intent stands directly at odds with the rules on joint enterprise. When someone who has committed a crime is sentenced, I would not want to be in the position of seeing someone who was there but who had not played, in the hon. Lady’s words, a significant part in the perpetration of that crime getting caught up in that. Does she not see that, without some of the changes that she is making with the Bill, the intentions of those of us who want life sentences to mean life would fall into an even greater sense of legal jeopardy?
Kim Johnson
The hon. Member makes some valid points, and these issues have been raised by the campaign groups. Life has meant life for people prosecuted under joint enterprise—often 27 years and upwards, but starting with 14 years. This is the miscarriage that we are looking at.
I want to give some examples. Jordan Cunliffe was 15 years old and awaiting a double eye transplant at the time he was accused of complicity in a joint enterprise murder. His mum Jan is in the Gallery today. Jordan was nearly totally blind and unable to see the incident or to run away. Despite the confession of two boys who were directly involved in the struggle that led to the death of the victim, the judge charged Jordan along with four others, leading to a life sentence for a crime he did not commit.
When Tommy was sentenced for life for joint enterprise murder, the judge told the courtroom, including his mum Lisa, who is in the Gallery today:
“remarkably there is no evidence. I can’t say you were at the scene or you carried a knife. There’s no DNA, no eyewitnesses. I don’t have a role for you. But I’m going to sentence you on a secondary role and give you an 18-year mandatory sentence”.
At the time of his conviction, Tommy was 20 years old.
Dean Winston was sentenced to life in 2014 for joint enterprise murder. His mum, Bee, is also in the Public Gallery today. Dean was 19 when he was sent to prison for 24 and a half years. Despite the confession of his co-defendant, Dean received a longer sentence than the man who committed and admitted to the murder.
Those are just snapshots of wrongful joint enterprise convictions, from JENGbA families who have campaigned for well over a decade to bring to light this grey area of the law. In their own words, this is a miscarriage of justice on the same scale as the Post Office Horizon scandal. People are being sent to prison for crimes they did not commit.
Florence Eshalomi
I thank my hon. Friend for high-lighting some of those cases. One of the other issues with joint enterprise is that we have seen young women and girls criminalised for the actions of their boyfriends. If we are honest, in some of those cases—this is an issue that I have campaigned on—a number of those young women and girls are coerced or are being exploited, including sexually exploited, by those men. Is this not why we need a change, so that we are not destroying those women’s lives? Sadly, this is not just about young men; it is also about a number of young women who are being criminalised and sentenced for crimes they did not commit.
Kim Johnson
I thank my hon. Friend for those comments. I totally agree, and I will cover some of that later in my speech.
With joint enterprise, it is often children or young people who are being put away for life. Felicity Gerry KC, who is also in the Public Gallery, has been instrumental in challenging the way joint enterprise legislation is misused, especially in her role as lead counsel on the landmark 2016 R v. Jogee case at the Supreme Court, and has helped every step of the way with this Bill.
Dr Gerry has provided some joint enterprise examples, all based on real cases: a boy cycling to and from an incident who has no contact with the victim; a driver who drops friends off to collect drugs and a fight happens outside the car; a passenger in a taxi where others get out of the taxi and go to another area where a stabbing occurs, and the passenger has no contact with the victim; schoolchildren who gather for a fight and one of them dies, but they are all prosecuted, even when they have no contact with the victim and have no weapon; children exploited to sell drugs who get caught up in the actions of others; and even a woman looking for her shoes during a violent disorder.
In the debate on new clause 16 on joint enterprise in the Criminal Justice Bill Committee on Tuesday, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) mentioned another case, in which a woman who was a victim of domestic abuse was charged under the crime of joint enterprise and, because she pleaded not guilty, received a longer sentence than the person who abused her and actually pulled the trigger and killed someone.
I am sure the Minister will share my concerns about the way joint enterprise has been used in those cases. I would be happy to write to him with details, if he would find it helpful to follow them up. I hope he will come to the same conclusion that I have: that the new law needs to change and we must therefore take the opportunity before us today.
Apsana Begum
Does my hon. Friend agree that one of the problems with the current law is that it perpetuates a system whereby the fear of being convicted under joint enterprise leads to innocent people pleading guilty to lesser crimes, and that this is an injustice as well?
Kim Johnson
I totally agree, and we all saw that play out in the Post Office Horizon scandal.
I believe that the cases I have referred to prove beyond a shadow of a doubt that the current law allows for far too broad an interpretation of complicity and has enabled joint enterprise to be used as a dragnet for sweeping arrests and prosecutions that cannot be justified on the basis of natural justice or public safety, and that come at great cost to the taxpayer, placing an undue burden on our overcrowded courts and prisons.
John McDonnell (Hayes and Harlington) (Lab)
Let me follow up on the point made by the hon. Member for North East Bedfordshire (Richard Fuller) in relation to sentencing overall. Although the Bill would have a radical effect on the families and the people suffering from this legal abuse, what is required is simply a clarification of the law. A consensus has now built up across the legal system—from practitioners expressing concerns in court to members of the justice union, which includes the Prison Officers Association and others—that Parliament is holding them back in securing justice for people. It is believed that there needs to be a relatively minor change in the law to enable the courts to dispense justice in the way that they wish to do so.
Kim Johnson
I totally agree with my right hon. Friend. That is what my Bill would do, by making a small change to the 1861 Act. During cross-party discussions with Ministers and shadow Ministers and at the Criminal Justice Bill Committee, I have yet to hear a persuasive argument put forward against this formula. I hope the Minister will agree that this wording is a common-sense approach that would keep the decision-making power with the jury, and perhaps strengthen the law by restoring its original intention, removing those current uncertainties that give rise to the miscarriages of justice that I have discussed today. Let me clarify that the Bill would cause no unintended consequences, or make it harder to punish people who have committed a crime, in line with the law as it is intended.
Mr Sheerman
One of the arguments that we hear time and again is, “Are you going to let the getaway driver get away with it?” Does my hon. Friend agree that this Bill would not do that, and that there is no intention for it to do so? The Bill that she is introducing is fair and balanced. I was with a senior retired High Court judge last night who said that it was about time that we put this matter right.
Kim Johnson
I welcome my hon. Friend’s contribution; that is exactly what the Bill is intended to do.
To illustrate my point further, I shall turn to the 2010 Victoria station attack, which the Under-Secretary of State for Justice, the hon. Member for Newbury, referred to in Tuesday’s debate at the Criminal Justice Bill Committee. In that incident, a group of young men chased and then attacked another young man, who was repeatedly stabbed and died. The coroner could not determine who had struck the fatal blow, so the whole group of assailants were put on trial and a number were convicted of murder and of manslaughter. They were clearly making a significant contribution to an awful crime.
Another commonly cited case is that of the racist killers of Stephen Lawrence. Again, there was damning evidence that the many accused did play an active and intentional role in his murder. My revised Bill would allow for their joint enterprise prosecutions. Another recent high-profile case concerns the murder of a young woman in Warrington. Both defendants were successfully, and correctly, prosecuted under joint enterprise.
My Bill is intentionally drafted to allow the use of joint enterprise laws in such cases to prosecute multiple defendants, where there was clearly evidence of a significant contribution by the accused to the death of the victim. It will be for the courts to decide in each case what constitutes a significant contribution, and it will form a basic legal test alongside many others used by juries to aid in their deliberations and protect against miscarriages of justice, while upholding the law as it is intended.
In response to the joint enterprise amendment on Tuesday, the Minister recognised the importance of the law on joint enterprise and the consequences that result from convictions on which both she and I find common ground. Ultimately, however, she was unable to support the new clause, saying:
“We think that it is too difficult to require the prosecution to prove a significant contribution”.—[Official Report, Criminal Justice Public Bill Committee, 30 January 2024; c. 485.]
Following that, I was grateful to meet the Minister yesterday to discuss the issues raised at the Bill Committee regarding the language of “significant contribution”. She reiterated her concern that “significant contribution” could prove too difficult a legal test for the prosecution. In particular, she referenced cases where contribution to a crime is difficult to prove and where, with multiple assailants, it is impossible to tell who dealt the final blow that caused the death of the victim.
Although I recognise the Minister’s trepidation, I find that a disturbing and worrying argument that amounts to an admission that, within our legal system, there is an area where we do not believe it is necessary to prove that a person must have made a significant contribution to a crime before locking them up and throwing away the key—and, indeed, that the Government are content with this state of affairs. It removes the burden from the prosecution to prove guilt and instead places the burden on the defendant to prove innocence. No other area of our law reverses that principle, and I hope the Minister will clarify the Government position on that and reconsider.
I find it confusing that a 14-year-old stabs and kills a young girl in Liverpool, is charged with murder and sentenced to life to serve a minimum of 13 years, while the young men mentioned throughout my speech did not commit a crime yet have been issued life sentences. Joint enterprise allows the prosecution to use a racist gang narrative to imply guilt and persuade juries using prejudicial stereotypes in place of cold, hard evidence.
Florence Eshalomi
My hon. Friend will be aware that the Crown Prosecution Service conducted a six-month trial that looked at the racial bias, after legal challenge from campaigners, and the results were stark. In 190 cases, involving more than 680 defendants, the CPS found that it disproportionately impacted BME men and children aged 14 to 17, and that a whopping 93% of joint enterprise defendants were male. That shows that this law, as it is being used now, disproportionately impacts too many young black men.
Kim Johnson
I thank my hon. Friend for her intervention; I will address that point about the CPS a bit later.
Last year, the human rights groups Liberty submitted one such case to the Criminal Cases Review Commission after 11 defendants, all black, were collectively convicted and sentenced to a total of 168 years in prison for a single murder. Evidence included a rap video made online a year earlier, photos of some of the defendants using hand signs, and the alleged favouring of the colour red. In that and similar cases, the prosecution called police officers as experts to give their opinions on alleged gang culture, a concept that carries with it racist stereotypes intended to sway a jury.
I believe that my Bill is the right approach. If there is no evidence of a significant contribution to a homicide, how can it be right that we prosecute for a mandatory life sentence? It is precisely this justice gap that systematically drives prosecution and conviction based on inference, stereotypes, gang narratives and the criminalisation of culture as a replacement for cold, hard evidence. It will be up to the jury to decide whether someone has made a significant contribution to a crime, and if a person played a part in a fight in which someone was killed, the test will clearly be met for significant contribution. I urge the Minister to consider this carefully and, when he responds, explain to me and the families sitting in the Gallery how we can justify continuing to lock people up when we cannot prove that they made a significant contribution to a crime.
It may surprise the House to note that the CPS case management system does not currently enable joint enterprise cases to be flagged. However, in September last year the CPS reported on a six-month pilot project, forced by a legal challenge by JENGbA and Liberty. In my meeting with the Minister and her team yesterday, I was grateful to hear about the progress being made by the CPS in this area, and that by the end of this month the CPS hopes to have in place systems to flag joint enterprise cases, so we will be able to analyse the data. I was also pleased to hear more about the national scrutiny panels. I have written to the Director of Public Prosecutions to discuss the work further. It was definitely encouraging to hear that more work is being done in this policy area. It shows that it is widely accepted that there is an issue that needs to be challenged. Parliament has a key role to play in that.
Data from the six-month CPS pilot reveal that more than half those prosecuted under joint enterprise were under 25 and that black people are 16 times more likely to be prosecuted for homicide or attempted homicide under joint enterprise laws. Young working-class and black boys are being sentenced for longer than they have been alive for crimes that they made no significant contribution to. It is truly astounding that nothing has been done about this sooner; it is a stain on our system and must be stopped.
On that note, I am grateful to have received support from the UN Working Group of Experts on People of African Descent, which has raised concerns about the impact of joint enterprise. I take the opportunity to read out a statement the group sent to support my Bill: “The Working Group of Experts on People of African Descent confirms the critical importance of the Joint Enterprise (Significant Contribution) Bill towards addressing the treadmill of convictions that young people of African descent are disproportionately subjected to in the United Kingdom. The Bill needs to apply retrospectively to remedy the injustices perpetrated by the law, which is directly in conflict with people.”
It is a testament to the years of campaigning by the families that we have now received this recognition of the injustice of joint enterprise by the UN working group, and I truly believe it is a case of when, not if, this legislation will be amended and put right. I hope that the Minister will help today by taking a further step in the right direction. While data is scarce, the full scale of joint enterprise remains as yet unknown. The pilot study undertaken by the CPS last year indicates that more than 1,000 people are tried every year for joint enterprise, at a time when we have record backlogs in the courts and our prisons are dangerously overcrowded. Parliament must take urgent action to end the over-zealous application of joint enterprise prosecutions and sentencing. To conclude, a miscarriage of law is a miscarriage of justice. As I have laid out today, there is a cross-party concern and there are serious questions about the letter of the law.
Philip Davies (Shipley) (Con)
First, let me congratulate the hon. Member for Liverpool, Riverside (Kim Johnson) on bringing this matter before the House. I believe she said at the start of her speech that she was as nervous as a kitten when she came out of the ballot with a high ranking. I do not think anybody would have recognised that, as she made a powerful case, and I commend her for that.
I rise to oppose the hon. Lady’s Bill and make the case that in many regards the law on joint enterprise does not go far enough. I will give some examples. I also want to address the point made by my hon. Friend the Member for North East Bedfordshire (Richard Fuller) that for those of us who believe that “life means life”, the cases that she mentioned undermined our argument; I do not think they do at all. When people say that life should mean life, they mean that they want honesty in sentencing and that the sentence handed down by the court is the one the person should serve. If we adopted that honesty in sentencing, many of the people that the hon. Lady mentioned in her speech would not be given a life sentence; they would be given a fixed tariff that they would be able to serve. Therefore, the honesty in sentencing that I want to see, as does my hon. Friend, judging by what he was saying, will help in the cases that the hon. Lady brought forward, because if we had that honesty in sentencing, we would not have these widespread life sentences being given out willy-nilly, which never in a million years mean life.
This is only a short Bill, but it has wide-ranging implications. It would repeal section 8 of the Accessories and Abettors Act 1861, which defines a secondary party. There are three types of joint enterprise. The first led to the creation of the 1861 Act in response to the case of the Crown v. Swindall and Osborne in 1846, which involved two cart drivers engaged in a race. One of them ran down and killed a pedestrian, but it was not known which cart and driver had perpetrated the fatal action. The court took the view that as both had equally encouraged each other in the race, it was irrelevant which of them had actually struck the man, as they were both participating in the race, so both were held jointly liable for the death; this is about a situation where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals. The case founded the principle that the parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention. Each individual assumes responsibility for the other members involved in the act. Therefore, a participant in an offence can be convicted even if the prosecution is unable to prove his or her precise role. It suffices that participation itself, whether as a principal offender or as a secondary party, can be proven and, as such, the principle of common purpose was codified in law in section 8 of the Accessories and Abettors Act 1861. The codified offence reads:
“Whosoever shall aid, abet, counsel, or procure the commission…shall be liable to be tried, indicted, and punished as a principal offender.”
The next landmark case, and second type of joint enterprise, cements the joint enterprise doctrine. In 1952, Derek Bentley was convicted for the shooting of a police officer. The actual murder was committed by an accomplice, Christopher Craig. Bentley was convicted after he said the famous words, “Let him have it,” which formed a key part of the evidence for the case against him, as he was deemed by the jury to be encouraging the defendant. Consequently, he was held jointly responsible for the murder. However, as we all know, the conviction was quashed on appeal.
In effect, that is an example of the principle of where D assists or encourages P to commit a single crime, which is the test used by the Crown Prosecution Service to proceed with a prosecution. Now, as we all know, for a jury to find someone guilty of a criminal offence, it must be satisfied that it is sure that the defendant both committed the crime, known as the actus reus, and had the requisite state of mind to carry out the crime, known as the mens rea.
An example is murder. To be convicted of murder, an offender must be shown both to have caused the victim’s death and to have either intended to kill or cause really serious harm. Another example is burglary. To be convicted of burglary under section 9(1) of the Theft Act 1968, the defendant must be found both to have entered a building as a trespasser and at the time intended to commit theft or grievous bodily harm.
Joint enterprise relates to secondary liability, meaning that a conviction hinges on the court’s determination of what the offender could have reasonably foreseen or anticipated, rather than what was explicitly agreed upon or even intended. For example, if two people planned a burglary together, and one, with the full knowledge of the other, took a gun and shot somebody during the course of that burglary, that would be seen as a joint enterprise, as the person without the gun could be deemed to have been able to reasonably foresee that the gun could be used to cause actual bodily harm to a third party.
This is where the third type of joint enterprise comes in, and it is of particular relevance to the Bill we are dealing with today. Until the 1980s, it seems that there were two strands. The first, referred to as the conduct element, requires that the accessory had encouraged or assisted the principal to commit the offence, and the act of assistance or encouragement may be infinitely varied. The second is the mental element, which requires that the accessory had the intention to assist or encourage the commission of the crime in the knowledge of any existing facts necessary for the principal’s act to be criminal. If the crime required a particular intent, the accessory must have intended to assist or encourage the principal to act with such intent.
In 1985, we had the case of the Crown v. Chan Wing-Siu, which created a specific subset of secondary liability known as parasitical accessory liability—the hon. Member for Liverpool, Riverside touched on these examples in her speech—which allowed not only the principal offender and accessory to be prosecuted for crime A, but also for a second crime, crime B, that the principal offender went on to commit. Here P and D participate together in one crime, crime A, and in the course of it P commits a second crime, crime B, which D had foreseen he might commit. This case lowered the burden of proof for the mental element of joint enterprise, as a conviction could now be made on the understanding that the defendant had only to foresee that the primary offender intended to commit the second crime.
Some people argue that a number of innocent victims who did not play a significant part in the offence could have been caught up in that definition, as the hon. Member for Liverpool, Riverside, said. That possibility has attracted particular attention in murder cases, for which a life sentence is mandatory. In the words of the Justice Committee,
“the mandatory life sentence for those convicted of murder removes much judicial discretion to hand down appropriate sentences to secondary participants who may have played a minor role and may have had no intention that a murder or grievous bodily harm should take place.”
Tim Moloney KC and Simon Natas, an expert in criminal law, argued for the abandonment of that principle, as it can lower the threshold for conviction in some cases. They suggested that the prosecution often finds it easier to demonstrate that the defendant foresaw the actions of the principal offender than to prove that the defendant intended for serious harm or death to occur. However, in its 2007 report on aspects of secondary liability, the Law Commission acknowledged that the principle was “severe”, but recommended its retention with certain safeguards.
Crucially, secondary liability is a common-law doctrine arising from the cases that I have mentioned. According to evidence given on 1 November 2011 to the Justice Committee by Jeremy Horder, professor of criminal law at King’s College London and a former law commissioner, the rules on complicity were originally
“drawn up to accommodate the notion that people have different roles in the commission of an offence”,
and those rules have evolved over the years. In one of its reports on complicity, called “Participating in Crime”, the Law Commission commented that
“At the core of the doctrine of secondary liability is the notion that D can and should be convicted of the offence that P commits even though D has only ‘aided, abetted, counselled or procured’ P to commit the offence”.
The Justice Committee’s 2010 report highlighted that the offence of joint enterprise plays a large part in getting convictions for who aid, abet, counsel or procure the commission of an offence, even though the principal offender does not carry out the intended act. Professor Graham Virgo highlighted the inconsistency in the courts’ approach to determining the mental state required for a finding of joint enterprise: while some cases only require the secondary participant to foresee the commission of the offence, in others, the secondary participant must apparently foresee both the criminal offender’s state of mind and the criminal act.
In 2011, before I was on the Justice Committee, it held an inquiry on the common-law doctrine of joint enterprise. That inquiry was prompted by concerns expressed to the Committee that the complexity and opacity of the doctrine could be the cause of injustice, whether to victims and their families or to defendants. That report was reviewed in a short follow-up report published by the Committee in 2014-15. The Committee considered the law, criticism of the doctrine, the use of joint enterprise, its application in cases of murder and gang-related or group violence, and whether the doctrine should be enshrined in statute. The Committee’s final recommendation was that the doctrine should be enshrined in legislation; it stated that
“The lack of clarity over the common law doctrine on joint enterprise is unacceptable for such an important aspect of the criminal law.”
In the year following the Justice Committee’s follow-up report, the Supreme Court ruled in the case of R v. Jogee, which the hon. Member for Liverpool, Riverside, mentioned, that the courts had taken a wrong turn in pursuing the concept of parasitic accessory liability. It handed down its judgment in February 2016, ruling that the previous interpretation of the law following the Chan Wing-Siu case was wrong, and that there should be no separate form of accessorial liability. It gave a correct example:
“D2 should not be liable for offence B unless he intended to assist or encourage D1 to offence B. Whether he did have such an intention or not will be for the jury to decide. The jury might consider D2’s foresight to be evidence of such an intent, but foresight would no longer be sufficient in and of itself.”
The judgment summarised as follows:
“The unanimous conclusion of the court is that Chan Wing-Siu and Powell and English did take a wrong turning…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.”
Effectively, as a result of the Supreme Court’s verdict, common law has already made the bar for prosecution higher again, as the mental element needed for prosecution is now not only being able to foresee a crime, but foresee a crime as evidence of intent. The Bill is clearly being introduced on the basis that despite that judgment, common law still sets the bar too low for the prosecution and, in some cases, leads to people on the fringes of a group being prosecuted when they are too remote from the murder to be charged with it.
The Bill seeks to reform part of the definition of joint enterprise and to add in reference to making a “significant contribution”. The liability on the basis of joint enterprise will then read, “Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be at common law or by virtue of any Act passed or to be passed, shall, by making a significant contribution to its commission, be liable to be tried, indicted, and punished as a principal offender.”
The hon. Member for Liverpool, Riverside, mentioned the amendment tabled to the Criminal Justice Bill by, I think, the hon. Member for Bootle (Peter Dowd), which, in effect, mirrored the measures in her Bill. I think—she did not make this clear—the amendment was withdrawn in Committee, but she will no doubt correct me if I am wrong.
Reforming the legal definition of joint enterprise requires careful consideration of various factors, including principles of justice and fairness, and effectiveness in deterring criminal behaviour. Of course, the addition of “significant contribution” will be subject to legal interpretation. I asked the hon. Lady whether the leader of her party, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), agreed with her Bill. I was not entirely clear from her answer whether he did—I think she said that he said he would look at it. I ask because as a former Director of Public Prosecutions, he has been invited in the past to give evidence to Select Committees in this House about joint enterprise, and it is fair to say that he was characteristically equivocal about whether he supported it. I was not entirely clear on his position after reading the evidence he gave, although he went on to say, and this is relevant to the debate,
“there needs to be some caution if there is any amendment to it, but…one can understand the concerns on either side.”
When asked whether he would regard it as a serious limitation on his ability to successfully prosecute culpable people of very serious crimes if he did not have the current joint enterprise routes to take, he said,
“Yes, I think it would be,”
so we should bear that in mind.
The hon. Member for Liverpool, Riverside, mentioned the BBC drama “Common”, directed by the excellent Jimmy McGovern, who is a tremendous leader in his field. The programme follows 17-year-old Johnjo, who gives a lift to his cousin and his friends, only to find himself implicated in a stabbing. Johnjo sits in the car and does not even witness the stabbing, nor does he supply the knife. In fact, he apparently thought he was driving his cousin and friends to get a pizza.
The programme follows Johnjo and his family through the police and courts system and shows the devastating impact on the family. It was very powerful, as dramas are designed to be. The drama also shows the life-altering, axis-shifting impact on the victim’s family. Obviously, we should never forget that having a family member murdered is absolutely abhorrent, and I know that no one in the House would wish that on anyone; we have to take a balanced view on all these matters.
I take the view that joint enterprise works reasonably well at the moment. However, as I said at the start of my remarks, it has sometimes failed to get convictions where it should, rather than the other way around. Former Director of Public Prosecutions Alison Saunders said:
“In some cases, it’s not very clear because of the circumstances of the case exactly who did what, but if we know that everyone was participating in the crime then it helps us to be able to prosecute them and to put those facts before the court.”
She added:
“If you’re just standing there, we won’t prosecute you.”
The Crown Prosecution Service charging guidance provides further evidence of the approach for such crimes. It states:
“Where D’s role as an accessory is minor or peripheral and the offence in question is a minor offence, consider whether it is in the public interest to charge D at all. In particular, where a court is likely to impose only a nominal penalty on conviction a prosecution will often not be in the public interest.
Where D’s role as an accessory is minor or peripheral but the offence is a serious one, consider whether a less serious charge than that charged against the principal is more appropriate. For instance, where the offence attracts a mandatory or automatic or minimum sentence, the charge may be considered disproportionate to the culpability of D. In the vast majority of cases there is likely to be an appropriate lesser charge available. However, in the unlikely event that no lesser charge is available, prosecutors must weigh carefully the merits of proceeding with a charge for the serious offence, or not proceeding at all. The decision as to where the public interest lies will depend on the facts of each case.”
The guidance goes on to address the public interest test in more detail:
“Where there is sufficient evidence to prosecute, prosecutors must go on to consider whether a prosecution is required in the public interest… This approach applies to all cases involving secondary liability.”
I say to the hon. Member for Liverpool, Riverside, that the CPS guidance is already pretty robust in ensuring that people are not unduly prosecuted for crimes in which they played barely any role. According to the guidance, they certainly should not be prosecuted for the same offence as the principal person involved in the crime. That covers an awful lot of her concerns.
The more serious the offence, of course, the more likely it is that a prosecution is required. Parts b) and c) of paragraph 4.14 of the CPS code state that
“When assessing the seriousness of an offence, prosecutors should include in their consideration the suspect’s culpability and the harm caused”
to the victim; that
“Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family”;
and that
“The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.”
There are clear examples in which a case is too complex and neither party is innocent, even if one party was substantially liable. One such example is the Crown v. Gnango, which involved the unlawful killing of Magda, a 26-year-old Polish care worker. Magda was on her way home from work in New Cross, south-east London, when she was shot through the head with a single bullet. She was caught in the crossfire between two gunmen in a car park. The two men were in a dispute and went there with the intention of killing each other. Scientific evidence allowed the police to identify the individual who fired the fatal shot. However, I thought—as did the court—that that was irrelevant, and that both men should be considered guilty because they both played their part in her death.
Another case involving a wholly different situation was considered—even if it was given only minimal weighting—by the judges in Crown v. Gnango, as it also applied the doctrine of joint enterprise: Mansell v. Herbert’s case. During the course of an attack on a house by a group of men, a woman was killed by a stone thrown by one of the group at another person. By a majority, it was decided that all were guilty of murder.
The Law Commission recommended retaining the Chan Wing-Siu principle owing to the availability of two defences. Under the first defence, a defendant can challenge a joint enterprise charge by demonstrating a fundamental difference between the agreed-upon criminal adventure and the committed crime, which I think covers much of what the hon. Lady was saying. The interpretation of that defence has led to complexity as courts grapple with determining what constitutes a fundamental difference.
The second defence relies on the defendant showing clear and unambiguous withdrawal from the venture before the crime was committed, which, again, I think is a very pertinent point. While the law about withdrawal is less complex, it is deemed overly restrictive. Moloney and Natas highlighted the case of R v. Mitchell, in which the defendant was convicted of murder, despite not having participated in a fatal assault, owing to her continued presence in the vicinity, suggesting her ongoing involvement in the crime. The definition proposed in the Bill will amend the defences applicable, and the defendant will now have to prove that his contribution to the offence was not significant.
I mentioned earlier that I would argue that we need some changes in the other direction, to secure more convictions in some cases. Jimmy McGovern might want to cover some of these cases in a drama to make the point as well, because as far as I am concerned, these cases are travesties of justice. Let us take the case of Donald Banfield. His wife and daughter were convicted of his 2001 murder, but their convictions were overturned despite its being accepted by everyone—including the lawyers acting for both of the accused—and recorded in the judgment in the case that Donald Banfield was murdered, that his death occurred between 11 and 16 May 2001, and that he was murdered either by both his wife and his daughter together or by one of them. Those facts are not disputed, yet these two women are free to walk around while that poor man is dead. It is outrageous that simply because neither will assist the prosecution with the case and tell them what really happened, nothing can be done to bring one or both of them to justice.
Then there was the murder of Kevin Patrick Lavelle in June 2004. I met the parents of Mr Lavelle, who have not only to live with the agony of losing their son but to face the ongoing suffering because no one has been convicted of his murder. In the Court of Appeal Civil Division judgment of 18 April 2011, Lord Justice Hooper said:
“On 24 June 2004 Mr. Lavelle was fatally injured in a fight that took place at ‘The Cricketers’ Arms’ public house in Middleton Road, Banbury, Oxfordshire. He died in the early hours of 25 June 2004. He was 29 years old.”
The judge continued:
“The cause of his death was aspiration of the contents of the stomach resulting from two head injuries to the deceased inflicted by a heavy steel weight lifting bar belonging to the deceased.
It was common ground that the deceased died in the course of a fight involving him, Mr Kirk and some, or all, of the first three respondents.
In late March 2009 following a coroner’s inquest a verdict of unlawful killing was entered.”
It seems very clear to everyone that Mr Lavelle was murdered, and that he was murdered by one of those people, yet no one has been successfully prosecuted for his murder and, tragically, unless something changes in the law—unless the law of joint enterprise is stiffened up—that will continue to be the case: no one will be brought to justice for that crime.
Finally, for now, there is the case of Andrew Jones, which the hon. Member for Liverpool, Riverside will know of very well because he was murdered in her home city of Liverpool. I also met the family of Mr Jones, and they too are devastated by the lack of a conviction in his case. I believe that at the inquest held in 2008, the Liverpool coroner, André Rebello, concluded that only one person was responsible for killing Andrew on the basis of the evidence that he had heard. Mr Rebello did not name that individual in court, but I understand—the hon. Lady will be able to correct me if I am wrong, because she will know far better than me—that her local newspaper did publicly name the killer, and said that if it was not them, they should sue the paper. It seems that none of the people who were there on the night are prepared to say who threw the fatal punch, although obviously one of them knows it was them and it is likely to have been witnessed by at least one other. Yet this has happened under the current legal joint enterprise framework, and it paints a very different picture from the one portrayed by the Bill’s supporters today.
When I asked the Crown Prosecution Service about these cases, Alison Saunders, then the Director of Public Prosecutions, provided a reply explaining the issues involved:
“Turning to the general points that you raise, each of the cases that you have highlighted have raised very different issues and demonstrate that the law regarding participation by a number of individuals raises complex challenges. As you will appreciate, any change to existing legislation remains a matter for Parliament. The principles underpinning the doctrine of joint enterprise have been developed over many years through court cases and in recent legislation such as the Serious Crime Act 2007. I am satisfied that these principles have been correctly applied in the cases”.
This is not a fault of the Crown Prosecution Service, but of the law. We should not forget that it is causing terrible heartache to families.
As it stands, joint enterprise acts as a deterrent. If this Bill was passed, it would water down the benefit of the current legal position when it comes to the deterrence of crime. Deterrence theory logically suggests that individuals refrain from committing crimes when the perceived costs or risks outweigh the potential benefits. In the context of joint enterprise, the threat of being held accountable for the actions of others may deter individuals from participating in those activities where joint liability could apply. This deterrence mechanism operates on the premise that individuals will prioritise self-preservation and avoid situations where they might be implicated in criminal conduct. Its very existence serves as a deterrent by increasing the perceived risks associated with criminal involvement. The prospect of facing severe legal consequences, including lengthy prison sentences for crimes committed by co-conspirators, can dissuade individuals from engaging in joint criminal enterprises.
Furthermore, supporters of joint enterprise, like me, would say that it fosters a sense of accountability among group members, as they are aware of the possible reper-cussions of their collective actions. High-profile cases where joint enterprise convictions have been upheld, such as those involving gang violence or organised crime, often highlight the punitive outcomes associated with joint enterprise convictions, which can act as a deterrent for potential offenders.
Another good example of the benefit of joint enterprise is epitomised in a leaflet produced in the home city of the hon. Member for Liverpool, Riverside by a wonderful lady called Jean Taylor from an organisation called Families Fighting for Justice. It gives out that leaflet to children and parents in Liverpool. I will not use it as a prop, because you would tell me off for doing so, Madam Deputy Speaker, but in this leaflet, which she hands out to schoolchildren in Liverpool, she makes clear the full repercussions of being involved in a crime that could be listed as joint enterprise. She gives an example of eight young men tried for murder. They were all at the scene of the crime, but the court could not tell which one had performed the murder. Because of joint enterprise, all eight were found guilty. The story shows that someone does not have to personally commit the crime with a gang or group to be found guilty of the crime. She puts in bold:
“This highlights the risks your child takes when being in a gang.”
I commend Jean Taylor and Families Fighting for Justice for all the work they have done on joint enterprise and to deter young people in her city from getting involved in gangs.
Mr Sheerman
The hon. Gentleman is making a very complex argument, and I have been listening to it. There is some interesting material in it. He has been speaking for more than half an hour, and some of us would like to contribute to this important debate. Many of us agree with exactly what he has been saying about the great need for radical reform in joint enterprise. I would have thought he could join us in supporting the Bill. Will he give the rest of us a chance to contribute to this important debate?
Philip Davies
I am slightly surprised by the hon. Gentleman’s intervention, because the Member proposing the Bill spoke for longer than I have spoken.
Philip Davies
We have invented a new rule, it seems. I have not known it before, but the hon. Gentleman has been here longer than me. Apparently there is a rule that I was previously unaware of that the person who speaks first on the Bill gets to speak for the longest. I did not know that was a rule. It is obviously one that has just been invented. I would have thought he has been here long enough to understand that in this place we are supposed to have a debate. When the hon. Member for Liverpool, Riverside sets out her position, that means that people who disagree with her are entitled to set out their position, which might differ. I appreciate that the hon. Member for Huddersfield (Mr Sheerman) only likes to hear arguments with which he agrees. This will be a novel experience for him, as today he will have to force himself to sit through somebody giving an opinion with which he disagrees. I know he does not like that, but I am afraid it is tough.
Mr Sheerman
The hon. Gentleman pointed out that I have been in the House longer than him. I have always believed that this a Chamber where we have an honest, open and fair debate. I appeal to him to give others, such as me, a chance to make a short contribution. If he has another motive—not to make a good contribution to this debate but to talk the Bill out—that is another matter. Will he be clear whether he will allow some of the rest of us to make a contribution?
Philip Davies
I am going to allow everybody else to make a contribution to the debate. Unfortunately, the hon. Gentleman, through his pointless interventions, has delayed that from happening. I have zero intention of talking out the Bill. The Bill does not need to be talked out, because, as far as I can see, it is so flawed that it has no prospect of being passed anyway.
The hon. Gentleman and his colleagues will have plenty of time to make their case during the debate. I am simply making the alternative argument—the one against the Bill—and I am taking a similar amount of time to speak against the Bill as the hon. Member for Liverpool, Riverside spent making the case for the Bill. I do not think anybody could possibly see that as unreasonable —aside from the hon. Gentleman, who, as I said, does not like hearing arguments with which he disagrees.
Before I was interrupted, I was talking about Jean Taylor and Families Fighting for Justice. The hon. Gentleman would do well to speak to them and find out about their horrific experiences. I can tell him that Jean Taylor, unbelievably, lost her sister in 1998, her son in 2000 and her daughter in 2004, all as a result of acts of homicide, including acts of joint enterprise. She has campaigned for years to fight for victims and reduce crime. Her work on joint enterprise, as I have demonstrated, has been invaluable. I am sorry that the hon. Gentleman would rather that Jean Taylor, her work and her personal experience were not discussed in the debate, but I will certainly not make any apology for mentioning her work and her terrible experience, which I suspect is greater than his experience in this field. Jean Taylor has every right to have her views taken into account by this place.
With that—we could have got here a bit sooner if the hon. Gentleman had not pointlessly intervened—I will just say that I do not see the same problems in joint enterprise that others do. I actually think that joint enterprise as a concept has been effective in ensuring that our streets and communities are safer places than they otherwise would be. It has been effective in making sure that people are brought to account for some despicable crimes when otherwise they would not have been brought to account for them. If anything, as I set out with the number of cases I referred to earlier, the problem with the law on joint enterprise is that it is not working sufficiently—it is not drawn tightly enough—to ensure that it is used by the prosecution service in cases where, in my opinion, it should be used. It is not allowed to use the law on joint enterprise because it has been so restricted through common law, decisions by the Supreme Court and statute.
I urge the Government not to agree to any of the changes to joint enterprise sought by the hon. Member for Liverpool, Riverside, but to go away and see how we can use it to ensure that it better holds people to account and brings justice to the three families I mentioned. They have suffered from horrendous crimes and not had the closure of seeing somebody brought to justice, even though they know who was responsible. How must that it feel for people to know, even under the current law, that one of the two or three people responsible for the death of a family member still cannot be brought to account? I ask the Minister to resist the hon. Lady’s request and instead to look at how we can tighten the law. I think that would serve our communities better, so I oppose the Bill.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
I thank the hon. Member for Shipley (Philip Davies) for his lengthy and constructive speech, from which I have learned a lot. He has reaffirmed my belief that this area of law desperately needs looking at, whichever way we approach it. At every level at which I have taken evidence with the all-party parliamentary group on miscarriages of justice. I am delighted to say that my old friend—and yours, Mr Deputy Speaker—Glyn Maddocks, who works with the APPG and has played such an important part in this campaign, is in the Public Gallery today.
I will try to be fair to every Member by making a short speech. I have been campaigning on this issue for a considerable amount of time. In the evidence we have taken in the all-party parliamentary group, we have listened to all sides of the argument, and we believe that something is wrong with the joint enterprise law. We have talked to everyone, including justices and the commission in Birmingham. They may have had differences in the way they nudge it, but they know that it has to be nudged somewhere to give justice in this country to everyone involved.
I have a tiny point of disagreement with my hon. Friend the Member for Liverpool, Riverside (Kim Johnson). Young black men are more influenced by this injustice in the justice system, but the evidence we heard showed that it is not a matter of colour, creed, race or religion; a diverse range of individuals have been affected unjustly by this law.
My message today is that this is a good Bill and it should go forward, because the hon. Member for Shipley and I can continue the dialogue and debate and get this right. I am sure that he would agree that, in the end, the job of Parliament is to identify things that do not seem to be quite right and constructively work together to make them better. There is no devious plan or ulterior motive. The motive is that we believe there is injustice in the system at the moment, and we agree with judges, barristers, solicitors and everyone—let us all get together and change the law.
Rob Butler (Aylesbury) (Con)
I congratulate the hon. Member for Liverpool, Riverside (Kim Johnson) on introducing this Bill and raising what I consider to be a legitimate and well-founded concern about joint enterprise. She explained that joint enterprise is a legal doctrine that applies where persons assist or encourage another to commit a crime—what many people would think of as aiding and abetting, and where the offender is known as an accessory. Common law developed by the courts over many years has resulted in that somewhat archaic language of “aid and abet” shifting to “assist or encourage”, a simple example being where somebody acts as a lookout or a getaway driver for a burglar. In general, that is an important aspect of our law, and one with which I agree.
The concern expressed by the hon. Lady primarily relates to cases of murder, where one person unlawfully takes the life of another with premeditation. Murder is the most heinous of crimes—let us be absolutely clear about that—so it is right that those involved in such a despicable act are properly punished, and it is entirely appropriate that the law recognises that a person does not necessarily have to have wielded the lethal weapon or dealt the fatal blow in order to have an element of responsibility for an unlawful and premeditated killing.
It is not difficult to see that an absolute obligation to identify unequivocally the particular individual in a group who directly and personally caused the death of a victim could, would and has led to no person being convicted. The prospect of two or more people blaming each other in the knowledge that none would be found guilty and thus sentenced is no figment of the imagination, and would be an appalling failing of the justice system. The concept of shared responsibility for as serious an offence as murder is therefore, I believe, an important one in our justice system, and the principle of joint enterprise is itself a sound one.
However, beyond that starting point is a great deal of nuance. The facts around crimes, even those as horrific as murder, are not always black and white. For that reason, I believe the hon. Member for Liverpool, Riverside is right to bring attention to this subject. I agree with much of what she said in her speech, and I do so partly as a result of my experience in the criminal justice system prior to coming to this place. During the course of many years variously as a magistrate, a member of the Youth Justice Board, a non-executive director of what was then Her Majesty’s Prison and Probation Service and a member of the Sentencing Council, I encountered numerous people who had been either accused or convicted of offences under joint enterprise. Usually that was right, but sometimes it was not—and on occasion it was blatantly wrong.
As has already been mentioned, right hon. and hon. Members will be very familiar with the ability of television drama to highlight miscarriages of justice, for example through ITV’s excellent recent series, “Mr Bates vs The Post Office”. As we have heard, 10 years ago we saw another powerful drama, Jimmy McGovern’s “Common”, which was inspired by the real case of a young man sentenced under joint enterprise. It is a powerful piece of television, highlighting the difficulties surrounding the legal doctrine of common purpose.
I am grateful to the hon. Member for Liverpool, Riverside for reminding us of that drama when she showed an abridged version of it at a meeting she held earlier this week in Parliament with the campaign group JENGbA, which has been widely referred to already—many members of the group are in the Gallery today. Numerous of them have relatives serving lengthy prison sentences under joint enterprise, and I was grateful that she gave me the opportunity to speak briefly to those families at that event.
As we have heard, Dr Felicity Gerry KC, the lead barrister in a high-profile appeal case, has set out a number of scenarios in which someone could be convicted under joint enterprise despite having limited or no involvement in the crime. The hon. Lady went through a very full list, but I think it is worth mentioning just two or three of them to highlight why there is a legitimate concern here.
Although anonymized, these examples are all based on real-life cases. They include a boy cycling to and from an incident, who had no contact with the victim; autistic children who find it difficult to assess what others will do; children who are exploited to sell drugs and are caught up in the actions of others, and even a woman looking for her shoes during a violent disorder. All those scenarios describe circumstances in which people can be convicted of serious offences despite making no significant contribution themselves to that crime. It is the question of the degree of involvement that this Bill seeks to address.
It is important to acknowledge that concern over the application of the doctrine of joint enterprise has been recognised. As we have heard, in 2016 the Supreme Court ruled in the case of R v. Jogee that the law on joint enterprise had taken what was described as a “wrong turn” for more than 30 years. The result was that only those who intended to commit or assist a crime, rather than those who might have foreseen it, could be properly convicted. However, research by the Centre for Crime and Justice Studies suggests that the judgment has had little to no effect on joint enterprise charges or convictions, and furthermore that appeals that were anticipated as a result of that judgment have not been allowed.
Consequently, in and of itself, the 2016 Supreme Court judgment has not addressed a number of the fundamental concerns about joint enterprise. That is why I believe the proposal in the Bill warrants detailed consideration by the Government, even if they cannot, for good reason, accept the Bill itself today. The word “significant”, which the hon. Lady seeks to introduce, carries a meaning that is widely understood in court and that a judge could adequately describe to a jury. It is not an extremely high threshold. The word proposed is not, for example, “substantial”, and the concept of a “significant contribution” will depend on the individual circumstances of the offence.
I contend that it would be perfectly feasible for lawyers for both prosecution and defence to put arguments to a jury so that the jury, properly instructed by the judge, could determine whether or not there had indeed been a significant contribution to the offence by the defendant. I would point out that the word “significant” features throughout sentencing guidelines used by all courts in England and Wales. Indeed, it is used in the sentencing guideline for murder, where considerations that judges should take into account include, for example, whether there has been a significant degree of provocation or a history of significant violence or abuse towards the offender by the victim.
I know that the Government have some justifiable concerns about the term “significant” in this legislation that need to be thought through and fully addressed. I therefore hope that the hon. Member for Liverpool, Riverside may consider pausing the progress of her Bill to enable that full consideration and to allow for joint enterprise legislation that will definitely work in the way that she rightly intends.
I reiterate that I am not suggesting that the entire concept of joint enterprise is wrong. I agree with the Lord Chancellor, who said last October that abolishing it
“would mean that a lot of people who have helped or encouraged the commission of offences get away—in some cases, with murder.”—[Official Report, 16 October 2023; Vol. 738, c. 72.]
But I fear that the balance is not right at present. I acknowledge that the Crown Prosecution Service publishes extensive guidance on its website, which outlines when the Crown would seek to push for a joint enterprise conviction, but it is clearly not working perfectly.
I also acknowledge some of the points made by my hon. Friend the Member for Shipley (Philip Davies). I agree absolutely that deterrence is important, and I join him in praising those who work in their communities to dissuade people, children in particular, from becoming embroiled in crime. He is also right to highlight other miscarriages of justice, where people who should have been prosecuted have not been. That is not tenable either, but two wrongs do not make a right and two injustices do not cancel each other out.
Joint enterprise is an important and valuable concept, but at the moment its application is undermining that value and carries the risk of diminishing confidence in our justice system. I repeat my congratulations to the hon. Member for Liverpool, Riverside on drawing attention to this topic. While I accept that the Government may have good reason for not supporting the Bill today, I hope that the Minister will commit to considering a review of how joint enterprise is applied.
Dawn Butler (Brent Central) (Lab)
It is a pleasure to follow the informative speech from hon. Member for Aylesbury (Rob Butler)—we share a surname, and I too was a magistrate. I congratulate my hon. Friend the Member for Liverpool, Riverside (Kim Johnson) and support her extremely important private Member’s Bill, and my heart goes out to everybody who has lost somebody to murder.
It is important that the law works as it should in this country. The Supreme Court said that joint enterprise has been wrongly interpreted by criminal trial judges for the past 30 years—a long, long time. The Joint Enterprise Not Guilty by Association campaign group, which my hon. Friend has been working closely with, has been doing a lot of important work on this topic. As she said, the principle is right, but the law is open not only to interpretation, but to abuse. The judicial system is riddled with bias, and this law makes that worse in many cases. It is nearly four years to the day since I stood in this Chamber to raise the case of my constituent Reshawn Davis, whose only crime was being a1in the wrong place at the wrong time. Mr Davis served two months in prison due to the joint enterprise law, and that sentence has had a devastating effect on him and his family.
Some will say that the joint enterprise law is not all bad, and they would be right. It has led to some high-profile convictions, such as bringing some of the racist murderers of Stephen Lawrence to justice, for which we should all be grateful. But it has also seen many innocent people sent to prison for crimes they did not commit. No one who believes in how the law should work could approve of that. Imagine if everyone was found guilty by association. It may be unwise, but it is not illegal, to be friends with someone who is a liar or a cheat. If it were, Mr Speaker, plenty of MPs in this place would be arrested.
Some will be surprised to learn that joint enterprise has been applied to predominantly children and young adults, of whom 57% are from an ethnic minority background. It is not only wrong, but lazy and unjustified to use the law in this way, criminalising a whole group of children and limiting their life chances, just because they may have known somebody from school. Those of us who have spent our lives fighting for justice are acutely aware—
Jeremy Corbyn
My hon. Friend makes a very strong point. Does she agree that there is a sort of perverse incentive on the police to be quite lazy about investigations of often serious incidents, because they know that, at some point in the future, they can deploy the law of joint enterprise and therefore do not necessarily have to get hard evidence against every single one of the people who may have been in the vicinity of the crime, but not participants in it?
Dawn Butler
I thank my right hon. Friend for that intervention. Yes, it is lazy. It also means that we have a target-driven process rather than an informative-driven process, which needs to change. The system penalises and has a disproportionate effect on people of colour. Those with high melanin are judged more harshly because of the colour of their skin. If a person is Afro-Caribbean, they are eight times more likely to get stopped and searched, five more times likely to die in police custody, and 16 times more likely to be charged under joint enterprise than their white counterparts.
It is absolutely fundamental that our legal system is fair and can be trusted by everyone no matter the background or the colour of one’s skin. It is the cornerstone of our democracy. As a civil society, we must aim to hold criminals to account and invest in good policing, good laws and good judges. It is time to reconsider the implications and the unintended consequences of joint enterprise and remove the harm that it has done to too many innocent people whose families are with us today. I pledge my support for the Bill. Although I know the Government may have reservations about some aspects of it, I hope they will commit to my hon. Friend’s Bill and bring it back to the House, so that we can have a system that is fair and right for all.
Jeremy Corbyn (Islington North) (Ind)
I shall be very brief, because, clearly, there is a mood in the House to take the Bill forward.
I congratulate my hon. Friend the Member for Liverpool, Riverside (Kim Johnson) on producing this Bill, and take the opportunity to thank many people over many years who have been campaigning on this. Jimmy McGovern has been mentioned as have all of those involved in Joint Enterprise Not Guilty by Association. I first met them with my right hon. Friend the Member for Hayes and Harlington (John McDonnell) about 10 years ago. As members of the Justice Committee, we were able to persuade the Committee to undertake an investigation into the case. I have never forgotten the power of the evidence that they brought forward of the effect on families. I have met many of the families affected, including those in my constituency. I heard how young people were ensnared into the criminal justice system, because of an incident that took place. Sometimes they knew the people from school. Sometimes, they happened to be on the same bus, or in the same vicinity on the street. It did not mean that they either commissioned or took part in the criminal act that took place. As a result, they received a criminal sentence.
I spent a day—again as a member of the Justice Committee—listening to young people in Feltham describe why they were there and what had happened. It was eye-opening and instructive to learn of the life opportunities they had lost because of the use of the joint enterprise law.
Mr Sheerman
I do not know whether my right hon. Friend is aware of this, but I got involved in this matter when, as chair of the Westminster Commission on Autism, I discovered the number of young people on the spectrum who were getting involved in these cases. That is how I got involved. It is remarkable that there is such a link. Does he agree that we should be careful of that as well?
Jeremy Corbyn
My hon. Friend makes a very important point. Looking at the make-up of the imprisoned youth population as well as the adult estate, we find a wholly disproportionate number of people who are on the autism spectrum or other spectrums, because of the complications of their lives. As my hon. Friend the Member for Brent Central (Dawn Butler) correctly pointed out, a wholly disproportionate number of young black people are taken into custody and get prison sentences as a result of the law of joint enterprise.
I think everyone accepts that there is a problem here, and the Bill introduced by my hon. Friend the Member for Liverpool, Riverside offers a way to take this issue forward so that we can reform the law to ensure that each person who receives a sentence is convicted because there is evidence against them as an individual, not because of an association that they happen to have with somebody who has committed a crime. If someone lives in an inner-city area, they are likely to spend a lot of time with a lot of people, some of whom commit crimes and some of whom are criminals. It does not mean that everybody else is a criminal. We almost get into a mood of collective attack on young people because of their association with people who have done bad things, so this Bill is an important step forward.
I understand what the hon. Member for Aylesbury (Rob Butler) was saying, and he made a very interesting and important contribution. There has to be some clarification of the law. I understand that the Minister will express some reservations about this Bill. However, I hope the Government will encourage the Bill to progress today, so that they can go into discussion with my hon. Friend the Member for Liverpool, Riverside on the way we can take this issue forward. This is a parliamentary opportunity to right a wrong—that is what we are here for, and it is what Friday debates are all about. It is also about coming to listen to the hon. Member for Shipley (Philip Davies), and I am grateful to him for his 30-minute speech—sometimes they are longer.
It has been a very effective debate, and I hope the Minister will understand that those of us who support this Bill do so out of a genuine concern to ensure there is a proper and effective system of justice in which people can have confidence. In an intervention on my hon. Friend the Member for Brent Central, I made the point that it is too easy to get prosecutions by using the joint enterprise law. It should never be easy to get a prosecution; it should be effective to get a prosecution against somebody who has committed a crime.
Florence Eshalomi
A few weeks ago, I spoke in a debate on knife crime. Getting prosecutions before the courts is an issue that we have all raised in this House and that our constituents have gone through with us. It beggars belief that victims who are grieving and have lost close family members are trying to get their cases before the courts, yet we are seeing people being convicted just because of where they are, the music they have listened to, who their boyfriends were or who they knew. This is totally unacceptable.
Jeremy Corbyn
My hon. Friend makes a very powerful point. Like her, I represent a constituency where, sadly, we do experience knife crime and death by knife crime. I always visit the families that are victims of knife crime to try to share their pain at what is a horrific experience.
I ask the Minister to recognise the importance of the issue and the burden of the argument that has been put forward by those of us who strongly support this Bill. I hope he will be prepared to have discussions with my hon. Friend the Member for Liverpool, Riverside and the promoters of the Bill to see whether it is necessary to table any amendments in Committee. I do not want to hear warm words that, at some indeterminate point in the indefinite future, there will be a proposal coming forward to deal with what we all acknowledge to be a wrong. We have been down too many cul-de-sacs before, and this is an opportunity. Let us take the opportunity to right a wrong in our criminal justice system.
Janet Daby (Lewisham East) (Lab)
I congratulate my hon. Friend the Member for Liverpool, Riverside (Kim Johnson) on her success in the private Members’ Bills ballot, and I am pleased to be responding to the Second Reading debate on her Bill today. It is important that this issue has been brought to the House’s attention. Children and justice is an area of concern for many when joint enterprise is considered and it has been campaigned on for several years. The Bill highlights that, but I am aware that an amendment similar to this Bill has been tabled to the Criminal Justice Bill. Before I go further into the discussion of this Bill, it is right to say that although it is critical of joint enterprise, and there are very convincing arguments for amendment to it, joint enterprise is also a necessary tool in the criminal justice system, as I will explain further.
I thank all Members who have participated in and contributed to this debate: my hon. Friends the Members for Vauxhall (Florence Eshalomi), for Brent Central (Dawn Butler), for Huddersfield (Mr Sheerman) and for Poplar and Limehouse (Apsana Begum); my right hon. Friend the Member for Hayes and Harlington (John McDonnell); my hon. Friends the Members for Birkenhead (Mick Whitley) and for Easington (Grahame Morris); the hon. Member for Aylesbury (Rob Butler); the right hon. Member for Islington North (Jeremy Corbyn); and the hon. Member for North East Bedfordshire (Richard Fuller). I have also noted the many comments made by the hon. Member for Shipley (Philip Davies).
Having listened to the debate, the clear overall message is that joint enterprise needs to be reviewed. As we have heard, it allows an individual to be jointly convicted of the crime of another if the court finds that they were involved in the commission of the crime. There is a strong case to tighten the definition currently used to ensure that justice is fair and proportionate. As in the case of R v. Jogee in 2016, the Supreme Court has ruled that joint enterprise had been wrongly used for 30 years—that is extremely concerning. The ruling stated that it was not enough for the prosecution to prove that the defendant foresaw the possibility of violence occurring. Instead, the prosecution should now prove that the defendant intended to encourage or assist the person who committed the crime. Yet, a list of controversial joint enterprise cases continue to this day. The Manchester 10 case, which many in this Chamber will know, was tried under conspiracy legislation, but activists say this mirrors crimes prosecuted in the UK as joint enterprise. The trial’s use of drill music to convict the 10 defendants has also been criticised; this is a common feature of joint enterprise prosecutions for defendants from minority backgrounds. I am aware of the campaign by Art Not Evidence that aims to stop the criminalisation of those who engage in rap and drill music.
Dawn Butler
Does my hon. Friend agree that it is important that we do not judge people by the music they listen to? Judging one music to be violent, as against another genre, is a very subjective measure.
Janet Daby
I absolutely agree with my hon. Friend on that; she makes a very meaningful point. There are lots of words in lots of different types of music, and we should not be judged by that.
I have also met Janet Cunliffe, a co-founder of Joint Enterprise Not Guilty by Association—JENGbA—whose son was imprisoned under joint enterprise. She is a tireless campaigner, who has shared in the experience of her son’s sentence. In 2020, JENGbA released a research report written by academics at Manchester Metropolitan University arguing that women are negatively impacted by joint enterprise. It stated:
“Women were often marginal to the violent event, with almost half not present at the scene and almost all never having engaged in any physical violence”.
And yet, as the report found, women were being seriously penalised.
JENGbA has highlighted the case of a teenager, Carrie. She was 15 years old when, in the early hours, she was walking with two other older people. They had all been drinking and a fight broke out with another group of local adults. One person from the other group was killed by an injury caused by a broken bottle. In the summing up of the case, the judge acknowledged that Carrie was so drunk she did not have the ability to join in with a fight. The judge warned that
“mere presence is not enough there must be some form of participation”.
During the trial, judgments were made about Carrie’s character and not her actions. That became central to her prosecution. The offence was committed by a 35-year-old man. The jury found the man guilty of murder. Carrie, 15 years old at the time of the event, was found guilty of manslaughter. The report found that there are many other women like Carrie in prison.
I have been critical of joint enterprise, but there is a place for it in our courts and the wider criminal justice system. Joint enterprise has helped to secure convictions that otherwise would not have been successful. The conviction of some of the men who killed Stephen Lawrence was secured using joint enterprise legislation. By using joint enterprise legislation, it was found that it did not matter whether Gary Dobson and David Norris carried out the killing; rather, it was important that they were part of an attack that could end in serious harm. Indeed, it did. It has also been successfully used to prosecute paedophile rings and those who commit economic crime. That should not be forgotten.
I am glad that the Bill does not seek to abolish joint enterprise in its entirety. Labour has previously said that it would look to reform joint enterprise, and that remains our ambition. Furthermore, the Lammy review in 2017 advocated for the reform of joint enterprise laws. In particular, recommendation 6 said:
“The CPS should take the opportunity, while it reworks its guidance on Joint Enterprise, to consider its approach to gang prosecutions in general.”
With regard to that recommendation, the CPS commenced a pilot to monitor joint enterprise homicide and attempted homicide cases in February 2023. The results were concerning. Black people make up only 4% of the UK population, but according to the CPS, under joint enterprise cases, black defendants make up 30% of case loads. It was also revealed that joint enterprise prosecutions disproportionately affect children, young people and men.
There has been progress on gathering more data, with the commencement of a full national scheme in all CPS areas. The CPS has said that a report of homicide and attempted homicide cases brought on a joint enterprise basis will be produced annually, and it will contain a breakdown by the protected characteristics of ethnicity, sex, age and disability. I believe that the CPS today convened a scrutiny panel with a focus on joint enterprise cases in which evidence of gang association is a feature.
Let me be clear: the Bill is perfectly reasonable and commendable. However, for the best chance of proper reform, it is important to wait until the CPS has built up more data before legislation is used to tackle the problem. We can solve the issue only when we have the full picture; that way, the law can work as intended.
Many from across the political spectrum believe that change needs to happen. There are some cases of people being convicted of serious crimes despite making no significant contribution to them; we have heard such examples given from across the Chamber. It is not in the public interest to prosecute those who have not made a significant contribution to a crime. I am interested to know whether the Minister agrees.
In reply to an amendment on joint enterprise in the Criminal Justice Bill Committee, the Government said:
“there have been examples of case law since the Jogee case that show that approach being fairly applied.”—[Official Report, Criminal Justice Public Bill Committee, 30 January 2024; c. 484.]
What is the Minister’s view on the reported disproportionate impact of joint enterprise on diverse communities?
The Government must end the criminalisation of children and young people associated with rap and drill music, and put in place protective factors to ensure that they are not disproportionately criminalised under joint enterprise.
Philip Davies
I am not sure what point the hon. Lady and Labour Members are making when they talk about the disproportionate amount of people from various ethnic minorities who have been prosecuted under joint enterprise. Is she saying that the Crown Prosecution Service is institutionally racist? Is she saying that juries are institutionally racist? Is that the allegation she is making from the Labour Front Bench?
Janet Daby
That is an interesting intervention. I find it concerning and alarming that hon. Members in this place do not appear to be aware of how racism and discrimination acts. So much evidence and information, and so many reports, inquiries and reviews on the subject have come out of this place and many other institutions and public organisations across our country for many years. I find it alarming and disturbing that he questioned that in the way he did. I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State for Justice (Gareth Bacon)
I thank the hon. Member for Liverpool, Riverside (Kim Johnson) for introducing the Bill. I know the issue is of significant interest to her and indeed to other Members of the House. However, I must say at the outset that the Government are unable to support the Bill in its current form.
I will explain our reasons for that later in my speech, but let me begin by saying that the Government understand and recognise the importance of the law of joint enterprise and the consequences that result from convictions for such crimes. We recognise that they can be extremely difficult for defendants and their families to accept, but equally the impact of any crime is devastating for the victim and their family, particularly when the crime is murder. For any Government, there is a need to ensure that any perpetrator who commits a crime, or aids, abets, encourages or assists in one, is brought to justice. Victims and their families especially have an expectation that all those involved in that crime, particularly a crime as serious as murder, will be prosecuted.
We have heard powerful and sincere speeches from both sides of the House, and I pay tribute not only to the hon. Member for Liverpool, Riverside, but to my hon. Friend the Member for Shipley (Philip Davies), the hon. Member for Huddersfield (Mr Sheerman), my hon. Friend the Member for Aylesbury (Rob Butler), the hon. Member for Brent Central (Dawn Butler), the right hon. Member for Islington North (Jeremy Corbyn), and the hon. Member for Lewisham East (Janet Daby). For the benefit of the House, I will give further explanation of the law on joint enterprise and how it works in practice, and then I will outline why the Government are not supportive of the Bill today.
We have all read the headlines about joint enterprise cases—the individuals who are charged and convicted of crimes, despite stating that they did not commit them or were not there when the crime occurred. However, more often than not, those headlines reduce to a few sentences extremely complex cases involving a significant body of evidence that needs to be considered in detail in order to truly understand what happened. That is rightly the job of the independent courts.
As many right hon. and hon. Members have mentioned, joint enterprise is a complex area of law. It is a common-law doctrine that can be applied to most offences, and generally applies where a person assists or encourages another to commit a crime. The principles that apply to joint enterprise cases remain the same whatever the offence, and apply equally to planned and spontaneous acts of joint enterprise.
Where two or more individuals are involved in committing a crime, the parties to the offence may be classed as principals or secondary parties. Each offence will have at least one principal, although it is not always possible or necessary to identify who the principals are. A principal is the perpetrator of the substantive offence, and a secondary party is one who aids, abets, counsels, procures—more commonly known as assists—or encourages a person to commit the substantive offence without being the principal offender.
It is a fundamental principle of the criminal law that an accessory to a criminal offence can be tried, convicted and punished of an offence in the same way as the principal, even if it was not their hands that personally struck the blow, ransacked the house, smuggled the drugs or forged the cheque. Where they encouraged or assisted those physical acts and had the necessary intention, the law says that it is right that they too are found guilty. Similarly, an accessory to a crime shares culpability precisely because they encouraged or assisted the offence.
No one doubts that if the principal and the accessory are engaged together in, for example, the armed robbery of a bank, which was mentioned, the accessory who keeps guard outside is as guilty of the robbery as the principal who enters with a shotgun and extracts the money from the staff by threat of violence. Nor does anyone doubt that the same principle can apply when, as sometimes happens, the accessory is nowhere near the scene of the crime when it eventually transpires. The accessory who funded the bank robbery or provided the gun is as guilty as those at the scene.
Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that they participated in the crime as either one or the other. That said, the threshold for anyone to be prosecuted and found guilty under the joint enterprise principle is very high. They must intend to assist or encourage the commission of the crime, and therefore must know of the existing fact necessary to make it criminal. If the crime requires the principal to have a particular intent, the secondary must intend to assist or encourage the principal to act with that intent.
Gareth Bacon
With the greatest respect to the hon. Gentleman, I am not going to take interventions. There are other Bills that need to be debated, and it is important that the Government’s case is put. We have had a lengthy debate. Section 8 of the Accessories and Abettors Act 1861 provides that a secondary party can be prosecuted and punished for the indictable offence as if they were the principal offender. That is the provision that the Bill seeks to amend.
Until the judgment given in the case of R v. Jogee, the courts had identified three ways in which liability for an offence committed with others might arise. The first is where two or more people join in committing a single crime in circumstances where they are, in effect, all joint principals—for example, where a group goes on a shoplifting spree, taking goods out of shops without payment. In such a scenario, those involved are joint principals. The second is where a person encourages another to commit a single crime; an example would be one person providing another with a weapon, so that they can use it in a robbery. The person providing the gun would be liable as an accomplice. The third is where two or more individuals participate together in a crime and, in the course of committing that crime, such as a robbery, one member of the group commits a second crime—for example, he shoots the security guard. The other members of the group may be prosecuted as accessories if they foresaw that the person with the gun was likely to use it. This type of joint enterprise is known as parasitic accessory liability.
Parasitic accessory liability was crystallised in the case of R v. Powell, which involved two defendants who went to a drug dealer’s home to buy cannabis, during which one of the defendants shot the drug dealer. Both were convicted of murder; it was held that the other defendant had foreseen that the other party might use the gun, and he was therefore convicted as an accessory. That case adopted the reasoning set out in the case of R v. Chan Wing-Siu, which involved three defendants who broke into a victim’s flat, with one defendant stabbing the victim to death and wounding his wife. All three defendants were convicted of murder, which resulted in the principle that if two or more people set out to commit an offence and, in the course of it, one of them commits another offence, the second person is guilty as an accessory to the latter crime even if he did not necessarily intend the commission of that offence; it is enough that he foresaw it as a possibility. The precedent was therefore established that a secondary party to a joint enterprise would be deemed to have intended to encourage or assist every one of the principal’s offences.
However, as we have heard, the case law moved away from that principle as a result of the Supreme Court’s decision in R v. Jogee. Ameen Jogee was initially convicted on the principle of parasitic accessory liability for the murder of former Leicestershire police officer Paul Fyfe in 2011. The Crown court heard at the time that Mr Jogee had “egged on” his friend Mohammed Hirsi, who stabbed Mr Fyfe in the heart. Mr Jogee argued that he was not inside the house when the incident took place and could not have foreseen what his friend intended to do. He was convicted of murder, with a minimum custodial sentence of 20 years.
Mr Jogee appealed against his conviction for murder to the Court of Appeal. Following this, in October 2015, he asked the Supreme Court to review the doctrine of joint enterprise and to hold that the court took a wrong turn in Chan Wing-Siu and the cases that followed it. Mr Jogee argued that the Chan Wing-Siu decision was based on a flawed reading of earlier authorities and questionable policy arguments. The respondents disputed those propositions and argued that even if the Supreme Court were persuaded that the courts took a wrong turn, it would be for the legislature to decide whether to change the law, since the law as laid down in Chan Wing-Siu had been in place for 30 years. The Supreme Court handed down its decision in Mr Jogee’s case in February 2016.
Gareth Bacon
I have already said to the hon. Gentleman that I am not going to give way.
Mr Sheerman
On a point of order, Mr Deputy Speaker. What is going on? There is a feeling at the moment that junior Ministers will not take interventions, which is against the whole spirit of a Friday open debate. What is the matter? All I want to know is whether the Minister is content with the joint enterprise situation at the moment. Will he please tell the House that?
Mr Deputy Speaker (Mr Nigel Evans)
Order. It is the decision of the person who is on their feet as to whether or not they take an intervention. The Minister has decided not to.
Gareth Bacon
With the greatest respect to the hon. Gentleman, I gave my reasons earlier. It is not because I am trying to curtail this debate; it is because other debates are due to take place after this one. In answer to his substantive question, I am outlining the Government’s position on joint enterprise.
In considering Mr Jogee’s case, the Supreme Court considered the issue of parasitic accessory liability and concluded that a person should not be guilty merely for foreseeing that an accomplice might commit a second offence during the course of the original planned crime. It considered that the law should revert to the well-established rule that exists in relation to other types of joint enterprise offending—that is, that a person can be guilty of offences committed by other members of the group only if he or she intentionally encouraged or assisted those offences to be committed. Where somebody participated in an offence that involved a clear risk of harm, and death resulted, although with no intention that it should happen, he or she could still be convicted of manslaughter.
This led the Supreme Court to conclude that the law had taken a wrong turn 30 years earlier, by equating foresight with the intent to assist. The correct approach was to treat foresight as evidence of intent to assist in the crime. Following the decision, Mr Jogee was cleared of murder by the Court, but retried and found guilty of manslaughter. His previous sentence of life imprisonment with a minimum of 20 years was replaced by a fixed term of 12 years.
As a result of the decision reached in Jogee, parasitic accessory liability no longer applies as a basis for criminal liability. However, this narrow change to the law on joint enterprise has been widely misunderstood as meaning that all convictions under joint enterprise would now be found not guilty on appeal. In circumstances in which parasitic accessory liability previously applied, the principles applicable to all cases of secondary liability now apply.
The decision in Jogee effectively resolved what the Government view as the most troubling aspect of the joint enterprise law. The Government are aware that the ruling in Jogee was initially welcomed by the academic world and families of convicted offenders, but the change in the law also appears to have been widely misinterpreted as applying to joint enterprise overall, when the change is much more limited—that is, the change relates only to cases involving parasitic accessory liability. This has obviously led to defendants’ families feeling further disappointment that the decision in Jogee has had little or no impact on those serving time in prison for such crimes.
Let me turn now to appeals, which serve as an important corrective function for individuals, whether to correct a miscarriage of justice, such as the conviction of someone who is factually innocent, or to correct a legal error, such as a harsher sentence than is legally permissible having been imposed. They also serve important public functions in ensuring that the criminal law is interpreted and applied consistently and predictably.
I know that the substantive injustice test has previously been raised in the House in connection with joint enterprise—specifically, in respect of whether legislative change affects the validity of a conviction under the previous law. The Law Commission is considering that issue as part of its full and extensive review of the law in relation to criminal appeals and procedure.
On 27 July 2023, the Law Commission published an issues paper seeking evidence on whether reform to the law on appeals in criminal cases, including the tests applied by the Court of Appeal and the Criminal Cases Review Commission, is necessary. This will help to inform the wider consultation paper on appeals law that is planned for publication later this year. The Law Commission intends to produce a final report with recommendations in 2025, and the Government will consider them.
It is worth making the point that before anyone is charged with a crime, whether as part of a joint enterprise or not, the Crown Prosecution Service will consider prosecuting only if the case satisfies the full code test set out in the code for Crown prosecutors. That test has two stages: the first is the requirement for evidential sufficiency, and the second involves the consideration of the public interest.
At the evidential stage, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. That means that an objective, impartial and reasonable jury—or bench of magistrates, or judge sitting alone—properly directed and acting in accordance with the law, is more likely than not to convict. It is an objective test based on the prosecutor’s assessment of the evidence, including any information that he or she has about the defence. A case that does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. If the evidential stage is satisfied, the prosecutors must then go on to consider the second stage and whether a full prosecution is in the public interest.
Having set out the background, let me move on to the Bill before us, the purpose of which is to amend section 8 of the Accessories and Abettors Act 1861. The amendment to section 8 appears to propose that for a person to be
“tried, indicted, and punished as a principal Offender”,
they must
“aid, abet, counsel, or procure”
the commission of the offence by
“making a significant contribution to”
the commission of an indictable offence.
The Government note that the declared purpose of the Bill is to better reflect a defendant’s actual contribution to a crime where this is committed as part of a joint enterprise. We also note that the proposed change to section 8 retains both its application to indictable only offences and its territorial extent, which is to say that the Bill proposes that any amendment to section 8 will continue to apply in England, Wales and Northern Ireland.
The Government are unable to support the Bill because it is technically flawed, and the overall impacts of such a change will need very careful consideration. As I said, joint enterprise is an extremely complex area of law—
John McDonnell
On a point of order, Mr Deputy Speaker. I do not wish to drag you into the debate; I am simply requesting a procedural clarification.
The Minister has just said that the Government are unable to support the Bill in its current form. In other words, they are not supporting it today. It is procedurally correct, is it not, that the Government could allow Second Reading and then delay any Committee proceedings until after the consultation on the Law Commission’s proposals and its examination of the issue overall, and amendments could then be tabled? If the Government fail to do that, it is difficult to see—unless they are committing themselves to introducing legislation—whether there is a serious or imminent proposal to reform the law in this instance.
I just wish to clarify that, because a great many people watching the debate will be confused by the process that we are going through. The opportunity is still there for the Government to allow the Bill’s Second Reading, thus bringing forward a reform that they may well wish to support at a later stage.
Mr Deputy Speaker (Mr Nigel Evans)
The case that the right hon. Gentleman has just stated is correct procedurally, but after the Minister has finished his speech I will call Kim Johnson, with the leave of the House, to see what the Member in charge of the Bill wishes to do.
Gareth Bacon
Thank you, Mr Deputy Speaker.
Section 8 of the 1861 Act is intrinsically linked with other inchoate offences such as those specified in sections 44 to 46 of the Serious Crime Act 2007: intentionally encouraging or assisting an offence, encouraging or assisting an offence believing it will be committed, and encouraging or assisting offences believing one or more will be committed. It is also linked to section 44(1) of the Magistrates’ Court Act 1980, which makes similar provision to that contained in section 8 of the 1861 Act, but in relation to summary only and triable either way offences.
Of key concern, however, is the fact that the proposed change to section 8 would place a requirement on the prosecution to identify the precise nature of a defendant’s role in aiding, abetting, procuring or counselling the commission of the crime committed in order to prove that the defendant had made a “significant contribution” —a threshold that does not currently need to be met. This change could lead to difficulties in securing a conviction and therefore bringing offenders to justice, even when there is significant evidence that the defendants did participate in the crime, simply owing to evidential difficulties in trying to establish the precise role that each party played—that is to say, whether they were a principal offender or an accessory—and how much weight should be given to those roles in terms of their “significant contribution”, which is not defined.
It is also unclear whether this change was actually intended, as the Government believe that the stated intention of the Bill is to clarify, and not to amend, the law on secondary liability. An additional concern is that no definition has been provided on what is to be determined by “significant contribution”. Without such a definition, that would mean that a perpetrator’s contribution to an offence could be determined differently, with the bar being either lower or higher depending on the assessment undertaken by the specific jury in question. In effect, there may be no real parity in such assessments, which in turn could lead to appeals on the basis of how a significant contribution to a crime has been assessed when compared with other such cases. That could result in an incoherent framework and would jeopardise the certainty of the law.
I am conscious of the time, Mr Deputy Speaker. I thank the hon. Member for Liverpool, Riverside again for her Bill, but the Government must oppose it for the reasons that I have outlined.
Kim Johnson
With the leave of the House, I thank everybody who has contributed to my debate today, and particularly to the parents in the Gallery from Joint Enterprise Not Guilty by Association. I thank the Minister for putting forward the Government’s case. He did say that he was not supporting the Bill today, so I am taking that positively. I ask him whether he would consider reviewing that. Given that we are pushed for time and there are other Bills to be debated today, I am willing for the debate to be adjourned to another day.
Ordered, That the debate be now adjourned.—(Rebecca Harris.)
Debate to be resumed on Friday 21 June.