(6 years, 10 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
Mr Deputy Speaker (Sir Lindsay Hoyle)
Under the Standing Orders, the Member moving the motion should usually speak for around 15 minutes.
Lucy Powell (Manchester Central) (Lab/Co-op)
I beg to move,
That this House notes the Supreme Court judgment in the case of Jogee and Ruddock of February 2016 that the law on joint enterprise and parasitic accessory liability had been wrongly interpreted for more than 30 years; further notes that since that judgment, the number of cases brought under joint enterprise has remained unchanged; further notes that there have yet to be any successful appeals of cases from before February 2016; and calls on the Government to review the use of joint enterprise and to bring forward legislative proposals to clarify the law on joint enterprise.
I welcome you back to your place in the Chair, Mr Deputy Speaker, and I am sure that the whole House will join me in wishing you and your family all the best; I know that it has been a very difficult few weeks for you.
I thank the Backbench Business Committee for accepting the application for this important debate, and I thank the right hon. and hon. Members who supported that application, particularly the right hon. Member for Sutton Coldfield (Mr Mitchell), the hon. Member for Bromley and Chislehurst (Robert Neill) and my right hon. Friend the Member for Tottenham (Mr Lammy), all of whom were co-sponsors of the application. I also thank the families and campaigners on joint enterprise, who are known as JENGbA—Joint Enterprise: Not Guilty by Association—and many of whom are in the Public Gallery today. They have never given up in their fight for justice for their loved ones.
Why are we having this debate now? It is nearly two years to the day since the Supreme Court made a landmark ruling that the law had taken a “wrong turn”. That followed years of campaigning and high-profile and seminal documentaries and films, such as “Common” by Jimmy McGovern. Since then, however, nothing of substance has actually changed. In the run-up to the ruling, the campaigners highlighted how, particularly in murder cases, secondary parties were too often receiving mandatory life sentences for having a lesser part or no significant part when compared with the principal party. They also showed that the evidential threshold was much lower than would normally apply to murder, particularly the notion that secondary parties “might” have foreseen the actions of others, rather than having knowingly foreseen them.
At the time of the ruling, campaigners, parliamentarians and others viewed it as a victory and had confidence that injustices would be put right and that the use of joint enterprise would be more limited going forward. However, two years on, the Supreme Court ruling feels increasingly like a pyrrhic victory, with no case from the 30 years in which the “wrong” law was applied being awarded an appeal, and many new cases with all the hallmarks of the old cases being successfully prosecuted.
Siobhain McDonagh (Mitcham and Morden) (Lab)
I congratulate my hon. Friend on securing a debate on this difficult issue, which is not a small matter. Does she agree that 4,500 people are currently in prison having been caught by the wrongful application of joint enterprise law? Men, women and children are serving long sentences for crimes that they did not commit.
Lucy Powell
I fully agree with my hon. Friend. We know it is at least that sort of figure—we do not have accurate figures.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
I congratulate my hon. Friend on securing this debate. This crucial issue is a priority for the newly formed all-party parliamentary group on miscarriages of justice.
The particular case of Alex Henry is of great importance. I chair the Westminster Commission on Autism, and several people in this ghastly predicament are on the autism spectrum and have been taken totally out of care.
Lucy Powell
I thank my hon. Friend for raising that particular case, and I know the family are here today. The case has many of the hallmarks that we will come on to discuss.
We are now seeing a new generation of joint enterprise lifers in prison. The Supreme Court says it is
“the responsibility of the court to put the law right”.
But many of us have come to the conclusion that the criminal justice system will not right itself, and is not righting itself, in relation to joint enterprise, and that we need to act. That is why Members on both sides of the House have joined together to send a strong signal both to the Government and to prosecutors and others that the way in which we continue to apply the law and the incredibly high bar that has been set for previous unsafe convictions to be reheard need to be redressed.
Graham Stringer (Blackley and Broughton) (Lab)
I congratulate my hon. Friend on bringing this important subject to the Floor of the House. I have had reason to represent one of my constituents, Jace Ryan Smith, who was convicted and sentenced to 31 years under joint enterprise. He was doubly punished recently because he was not allowed to go to his grandmother’s funeral, not because of anything he had done wrong but because Greater Manchester police thought he may become a victim of another gang. Is not the real problem with joint enterprise that people are punished and given long prison sentences of more than 30 years for actions they did not carry out themselves?
Chuka Umunna
I am grateful to my hon. Friend for giving way. I reiterate that it is very good to see you back in the Chair, Mr Deputy Speaker.
I have two questions. First, following on from the point raised by my hon. Friend the Member for Blackley and Broughton (Graham Stringer), the statistics show that 37% of those serving long sentences for joint enterprise are black. That is 11 times the proportion of black people in the population. The figures for people of mixed race are similarly disproportionate, which underlines why it is essential that we have the review that my hon. Friend the Member for Manchester Central (Lucy Powell) calls for in the motion, which I fully support.
Secondly, given the uncertainty, surely we are seeing the courts acting, in effect, as legislators. That is wrong. Where there is uncertainty in the law, it is for this House to tidy it up, particularly where the law is visiting injustice upon people in the way we are seeing.
Lucy Powell
I wholeheartedly agree with my hon. Friend’s sentiments, and I will address some of that in my speech.
With hundreds of lifers in prison after being convicted under what the Supreme Court views as a wrong application of the law, this is potentially one of the biggest and most widespread miscarriages of justice ever to face our justice system. As such, I fear that the cosy club of the criminal justice establishment is closing in on itself to prevent this from ever being fully exposed.
What is joint enterprise? Joint enterprise has been applied in cases for more than 300 years, although it is a common law that has never been passed by Parliament. The doctrine allows for more than one person to be charged for the same offence, despite the fact that they may have played a different role, or no role, in the crime. Joint enterprise applies to all crimes, but in recent years it has been particularly used as a way to prosecute murder, especially, but not exclusively, in cases involving groups of young men.
This is obviously a very emotive issue, particularly for families of murder victims, and no one is suggesting that those who commit murder, or who knowingly and intentionally assist in committing murder, should not face the full force of the law. However, nor should the evidential bar for serious offences like murder be lower, by virtue of presence or association with the principal offender, as we have all too often seen.
Indeed, there are many cases, many of which I am sure will come to light today, in which people are serving life sentences when it is clear that they did not commit murder but were found guilty under the “old” or “wrong” law of parasitic accessory liability. Furthermore, many others who were convicted as secondary parties are carrying the same sentences as the principal based on a prosecution narrative of gang and association, even though intent and foresight are unproven and the secondary party was not physically present or had withdrawn from the scene.
When one looks at the profile of those convicted of murder, there is a further flaw in how the doctrine is applied. The majority are of black and ethnic minority backgrounds, and the vast majority are young, with many teenagers serving life for a secondary or parasitic role. I will say more, as will others, but we have to ask questions about the disproportionate use of such doctrines in cases involving certain communities.
The political context is also relevant to this debate.
Mr David Lammy (Tottenham) (Lab)
Does my hon. Friend recognise that where 14, 16 and 19-year-olds have gone to prison for significant periods of time when it is absolutely clear to the community that they have not committed murder, as happened in her community of Moss Side, it undermines the black community’s sense of justice, fewer people co-operate with the police, fewer people have faith in the justice system and it undermines all she is attempting to do?
Mr Deputy Speaker (Sir Lindsay Hoyle)
Order. I hope to give everybody 10 minutes. If Members intervene, the danger is that I will have to drop the time limit immediately.
Lucy Powell
I fully agree with my right hon. Friend the Member for Tottenham (Mr Lammy), but I will try to make some progress.
There was a political context when the joint enterprise law began to be overused and extended in its use during the 1990s and the noughties, but there is a different political context today. As my right hon. Friend has just said, we now more clearly understand the consequences of disproportionate and unfair applications of the law against certain groups. I am pleased the Government recognised that when they launched the Lammy review and in the Prime Minister’s recent comments on “burning injustices”—I hope she can live up to that rhetoric.
Practice and the law have been far too slow to catch up with the changing mood in the country. I will briefly discuss what the Supreme Court ruling does and does not say, and what still needs to be addressed. First, the ruling is clear that the law governing secondary liability has taken a “wrong turn” and has resulted in the “erroneous” application of the law. However, it also sets out that, in order for appeals to be heard “out of time,” a substantial injustice test, not the usual unsafe conviction test, will be applied. Yet the substantial injustice test was not clearly set out in the ruling and has never been set out by Parliament. The substantial injustice test has subsequently been tested through case law and is now an almost impossibly high bar for people to clear. That is why, nearly two years on, there has yet to be a single successful appeal awarded by the Court of Appeal.
Finally, in our opinion the Supreme Court failed to address another question put before it: does joint enterprise over-criminalise secondary parties?
What needs to change in the law—first, what needs to change going forward, and secondly, how can we put right some of the injustices of the past? It is clear that joint enterprise continues to be overused and is disproportionately used against groups of young men, particularly those from black and ethnic minority backgrounds. I saw that at first hand in a recent case in which 11 young black men from Moss Side faced charges of murder. Seven of them were convicted of murder and four were convicted of manslaughter. The youngest was only 14 and many of them were not previously known to the police. As research by Manchester Metropolitan University has shown in its study “Dangerous Liaisons”, more than half of all those serving life sentences are children or young adults, and more than half are from a black and ethnic minority background.
Lucy Powell
I will have to make some progress. I am sure someone else will give way later.
The extensive research also found that the establishment had a gang narrative that often relied on neighbourhood narratives, racialised assumptions, unevidenced constructs and loose associations. Things such as social media tags and videos have been critical to securing many of the joint enterprise convictions. We know that there are serious flaws in this approach. That is why my right hon. Friend the Member for Tottenham has raised it in his review and why the Home Affairs Committee is looking into it. Indeed, joint enterprise cases continue following the Supreme Court ruling, albeit under new Crown Prosecution Service guidance, but that remains problematic.
We want the Government to look at three areas for future cases. The first is proportionality and whether joint enterprise is being used correctly or disproportionately against certain groups. We ask the Government to do what the Supreme Court failed to do, which is to establish whether joint enterprise over-criminalises secondary parties. Secondly, and related to that, we need the data. Collating the data about who is being charged and convicted, and where, is urgent now and long overdue. Thirdly, the long-awaited outcome of the review of the CPS guidance needs to be brought forward, and quickly. It must include clearer guidance for prosecution discretion so that lesser offences can be brought against secondary parties in many cases.
The final point is about retrospective cases and putting right the injustices of the past. We are not asking for automatic reopening of every single case. It is right that there must be a test, but the test is now so impossibly high that no cases have successfully been heard by the Court of Appeal, and the Criminal Cases Review Commission has yet to recommend that a single case should come back, despite having received 99 fresh applications and reviewing 90 more. Indeed, appeal judges seem utterly dismissive of these cases. Unlike in a usual appeal case, where the threshold is the possibility of an unsafe conviction, applicants in the case of the “wrong” law of joint enterprise are also required to demonstrate that, as well as being unsafe, had the correct law applied there “would” have been a substantial difference to the outcome. In most other cases, this would be simply that it “may” have done so. So we believe that the substantial injustice test needs establishing by Parliament in law, and it should make it clear that the threshold is “may”, not “would”.
Moreover, we think that the Court of Appeal should also be allowed to consider the ongoing effect of the conviction on the applicant and, critically, take account of the applicant’s age, mental health and other vulnerabilities at the time. The old, or wrong, foresight test now applied correctly to adolescents or those suffering with learning or mental difficulties would surely provide a substantial change to convictions. Today we would not expect an immature teenager or someone with learning difficulties to understand the old, weak foresight test.
I want the Government urgently to consider a mechanism for clarifying the threshold in these cases. Just to be clear, this is not about opening the floodgates, but if the law has been wrong for 30 years, during which time hundreds if not thousands of mandatory life sentences were handed out under the old wrong law, then it stands to reason that at least some—not a tiny, tiny few—of the cases are a clear injustice that the courts are currently failing to put right.
I think we can all agree today in the House that the law took a wrong turn. That now needs putting right. The establishment is evidently not putting itself right, so the Government and Parliament need to act. We urgently need a review of the use and scope of the prosecutions brought under joint enterprise, particularly its disproportionate use against young BAME men. We also need urgent clarification of the qualification for appeal so that we can put right decades of substantial injustices and unsafe convictions leading to many serving life sentences for murders they did not commit.
Several hon. Members rose—
Mr Deputy Speaker (Sir Lindsay Hoyle)
I call Mr Andrew Mitchell, with a 10-minute limit.
Mr Andrew Mitchell (Sutton Coldfield) (Con)
Mr Deputy Speaker, along with the whole House I welcome you back to the Chair. I congratulate the hon. Member for Manchester Central (Lucy Powell) on securing this debate and thank Mr Speaker and the Backbench Business Committee for granting it. I draw the attention of the House to my outside interests as set out in the register.
We are holding this debate today because we know that thousands of people have been prosecuted under joint enterprise over the last decade alone, and we have a profound fear that some of these convictions are unsound. I am deeply conscious that behind each of these crimes lies a victim, usually murdered, with grieving loved ones whose lives have been changed for ever and ruined. My heart goes out to all those and their families who have suffered in that way. But we also know that there is a wealth of evidence that suggests that joint enterprise has both convicted people in error and wholly disproportionately affected those who identify as black, Asian and minority ethnic.
Young people from ethnic communities have been, essentially, hoovered up for peripheral and in some cases even non-existent involvement in serious criminal acts. The Supreme Court’s decision in the case of Jogee has established that the previous interpretation of the law was wrong and confirmed the abolition of what I am advised lawyers call parasitic accessory liability, to which the hon. Lady referred. But to date only a very limited number of joint enterprise convictions have been quashed.
To find a defendant guilty of a criminal offence, a jury must be satisfied that a defendant both committed the crime and had the requisite state of mind to carry out the crime. Yet the law on joint enterprise, and secondary liability more generally, was developed by the courts to ensure that all participants in a criminal enterprise could be held accountable. Indeed, it has been a key tool when prosecuting suspected gang members. But there has been a failure by our criminal justice system to distinguish between gangs and groups. The House will understand that not all members of groups have a criminal purpose. Not all members of gangs or groups join in when there is an incident. Humans are by nature social animals. People naturally hang around in groups or sports teams or protest marches. That does not mean, if an incident occurs, that everyone in the group intended whatever happened to happen.
We now have evidence of how discriminatory the law of joint enterprise has been, and I congratulate the right hon. Member for Tottenham (Mr Lammy) on the work he did in revealing the unequal treatment of, and outcomes for, black, Asian and minority ethnic individuals in the criminal justice system. Over recent years, I have worked with Matilda MacAttram, of Black Mental Health, who has done so much good work exposing the inadequacies of the criminal justice and legal system in this respect. I also pay tribute to the Prime Minister who, as Home Secretary, ensured that the voice of Black Mental Health was heard in Government.
It is no accident that the bulk of the prison population convicted under a joint enterprise doctrine is young BAME men. It is an uneasy and difficult truth that an association might exist unconsciously or otherwise in the minds of the police, prosecutors and juries between being a young ethnic minority male and being in a gang, and therefore being involved in forms of urban violence. Such findings are echoed by studies of the ethnic profile of prisoners convicted on the basis of joint enterprise. One study by the Centre for Crime and Justice Studies found that, for young people convicted under joint enterprise, nearly 60% were BAME.
There is now a real suspicion that justice has miscarried in many joint enterprise cases. Juries were not directed on the correct law, even in the most serious of cases. The high standards of legal accuracy we are entitled to expect of our justice system have simply not been met. In such cases, we rightly expect the appeal system to function and to function effectively.
Even as recently as 2017, prosecutors were still trying to find an easy way to convict, as was shown by the case of Lewis. Thankfully, the judge found there was no case to answer. The prosecution appealed that ruling and rightly lost. There is now a logjam in our criminal justice system, with the Court of Appeal appearing wrongly to block appeals by joint enterprise prisoners. The burden of the substantial injustice test, to which I have referred, has been passed on to the prisoner, which requires the person convicted to satisfy the Court of Appeal that
“he would not have been convicted had the jury been directed on the basis of the corrected law as set out in Jogee.”
Instead, the question should be, “Is there a realistic possibility that he would not have been convicted?”, which I understand has legal precedence and which was the test previously applied in the case of McInnes v. Her Majesty’s Advocate.
Along with the hon. Member for Ealing North (Stephen Pound), to whom I pay tribute, I visited Alex Henry in prison in Cambridgeshire. Shortly after his conviction for joint enterprise murder, he was diagnosed with autism. I have taken a close interest in his case over the past two years and think it one of immense concern. As we have learned in recent weeks, the police and Crown Prosecution Service are often difficult to deal with in respect of disclosure. Parliament needs to reconsider the proper approach and the relevant sanctions. The evidence available to a prosecutor is now more comprehensive, with CCTV and phones, which in theory makes it easier to distinguish between those who join in and those who do not. Recent cases of alleged sexual offending have demonstrated the consequences when disclosure is not properly dealt with.
The right to a fair trial is a basic human right. I worry that, in respect of these cases, our courts are too keen to block appeals by those who might have been convicted by error of the courts. Such behaviour serves only to undermine our faith in the justice system. There is a tendency in Britain to believe that we have the best criminal justice system in the world. I put it to the House that our attitude to the British crime and justice system is riddled with a complacency that is wholly unjustified. That view would be borne out by any fair-minded person who focused on joint enterprise.
The whole House should be grateful to the right hon. Member for Tottenham for his recent report, delivered at the Government’s request, on the legal system’s treatment of black, Asian and ethnic minorities in Britain. Quite apart from the right hon. Gentleman, there are many in the legal profession who argue that it is simply unacceptable that today, in 2018, virtually all senior members of the judiciary are white men from privileged backgrounds. That simply does not reflect the society that is Britain today and which the judiciary serve.
We should not forget that all too often in Britain, injustice is remedied not by the organs of the state but by the investigative prowess of a free media or, indeed, by Members of the House. Who can forget that the manifest injustice done to the Birmingham Six was remedied not by the police or the state, but by the indefatigable work of two Members of the House: Sir John Farr, the then Conservative Member for Harborough, and Chris Mullin, the then Labour Member for Sunderland South and subsequently a distinguished Chairman of the Home Affairs Committee and a development Minister? Today, the poor families of the victims of that outrage have still not achieved closure, as the ongoing coroner’s inquiry in Birmingham demonstrates.
I hope that, following this debate, the media will take a close interest in the cases in which joint enterprise might have led to innocent people being convicted. JENGbA, the organisation formed in 2010 to which the hon. Member for Manchester Central rightly referred, now supports more than 800 prisoners, many of whom are serving mandatory life sentences of 22 years, and the youngest of whom was just 12 when charged. I hope that the Justice Committee, with its considerable authority—its Chair, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), is in his place—will not allow these matters to rest until they have been fully examined by Parliament, so that we can be assured that justice has been delivered.
Julie Elliott (Sunderland Central) (Lab)
I, too, welcome you back to this place, Mr Deputy Speaker, following the tragic circumstances that befell your family.
I thank my hon. Friend the Member for Manchester Central (Lucy Powell) for the thorough way she set out the issues. I also thank the right hon. Member for Sutton Coldfield (Mr Mitchell) for raising the issues he did and for mentioning my predecessor, Chris Mullin, who has an astounding and excellent track record on this issue.
This is a very important debate, but it is difficult for politicians to deal with. Let me say first that my sympathies are always with the victims of crime. People who are convicted of murder must be subject to the full weight of the law, as must people who are safely convicted of joint enterprise, but the Supreme Court’s change to the law in 2016 is not being implemented correctly. The Supreme Court said that the law had taken “a wrong turn” in 1984, which is clearly correct. However, as has been outlined, cases from before Jogee can go back to the Court of Appeal only if the person convicted can prove that their conviction was a substantial injustice.
An injustice is carrying on for many who are still in prison today and cannot be granted an appeal because their cases are “out of time” and would therefore have to pass the substantial injustice test. I wish to focus my remarks on that.
Those who were convicted more than 28 days before the change announced by the Supreme Court have to prove a substantial injustice, which means proving that the change in the law would have categorically made a difference. As has been outlined, that is an enormous bar to have to clear. Those people who were convicted in the 28 days before the change have to show only that their conviction is unsafe—a much lesser test of proof—in that the change in the law might reasonably have made a difference. All that means that, in a hypothetical situation, two people convicted of the same crime with identical evidence would be treated differently in the eyes of the law. That is simply wrong and needs to change.
It is no surprise that of the 800 men, women and children—a lot of them were children when they were convicted—who are supported by JENGbA, not one has successfully appealed their conviction since the Supreme Court’s decision on Jogee. I put on record my support for JENGbA, which has worked extremely hard not only by raising the issues with joint enterprise, but by supporting the families involved.
In most cases, this country can be proud of the British justice system, but when mistakes, misinterpretations or miscarriages of justice occur, they must be put right quickly. The British justice system is judged on that as much as on how the law is implemented. It is clear that the justice system is failing those people who are still in prison—often after many years—who were convicted more than 28 days before the Supreme Court ruling.
The direction of the law needs to be aligned and all cases should be judged against the lesser test of proof, which is that the conviction is unsafe. That would mean people convicted fairly, equally and reasonably against the new test that the Supreme Court set in putting right the “wrong turn” rightly staying in prison to serve their full sentence. However, those who would not have been found guilty under the new rules would get their freedom, and whatever follows.
That is why this debate is so important. Such an outcome would be right and proper and would restore British justice to being seen once again as fair, equal and reasonable. As long as people are judged against such a ridiculously high bar, British justice will be failing the people in prison who were judged under a wrong law.
Robert Neill (Bromley and Chislehurst) (Con)
I join every other Member in welcoming you back to the Chair, Mr Deputy Speaker.
I congratulate the hon. Member for Manchester Central (Lucy Powell), my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) and the right hon. Member for Tottenham (Mr Lammy) on securing this debate. I wish to speak for several reasons. First, as Chair of the Justice Committee, I think it is important that we keep this matter under review. The Committee has given some consideration to this matter in the past, and no doubt we will again.
Secondly, throughout my adult life, I have been a practising barrister. I concern myself very much with the justice system because it is something of which I am part and in which I believe. A belief in that system was one reason why I came to this House. It is massively important that it does what it is supposed to do—that it does justice and that we get it right. Where we fail to get it right, we should not be afraid to say so.
Thirdly, I have a constituent—I think their partner is in the Public Gallery today—who is serving a life sentence, with, I think, a 23-year tariff, as a result of the application of the joint enterprise principle to a case of murder. He made no bones about the fact that he had been party to an offence of dishonesty, but was convicted of murder, by the application of the joint enterprise principle, as a result of the act of violence perpetrated by another individual. Therefore, that case comes exactly into those with which we are concerned.
For all those reasons, this is a very important debate. I am sorry that there are comparatively few people in the Chamber today. One thing that has struck me since I have been here is how, by comparison with the past, this House takes comparatively little interest in reform of our criminal justice law. Through the ’60s and ’70s, Members of this House—either through private Members’ Bills or the pressure that they put on Government to make changes to Government legislation—effected major changes for the better in many aspects of our criminal law: reforms of the law in relation to homicide and the abolition of the death penalty; and changes to the law in relation to the criminalisation of abortion and homosexuality. A vast number of other really important matters of criminal justice reform emanated from debate in this House. Sadly, too often, that gets squeezed out in the current climate. Perhaps we should debate it rather more.
Mr Barry Sheerman (Huddersfield) (Lab/Co-op)
I am reluctant to intervene on such a good speech, but the hon. Gentleman knows of my interest as co-chair of the all-parliamentary group on miscarriages of justice. Does he not think that the Criminal Cases Review Commission is lacking in that it does not intervene enough, or early enough or persistently enough in these cases?
Robert Neill
There are a number of areas where changes are needed. I have great respect for the work of the Criminal Cases Review Commission, but I am conscious that it is under pressure both in terms of resource and of its terms of reference. It would not be unreasonable to look at that. Miscarriages of justice do occur. I know that full well because I vividly remember prosecuting one once—not in a murder case, but in a rape case. At the time, the evidence and the legal test appeared compelling, but, thanks to the work of the Criminal Cases Review Commission, evidence came to light, and I had no hesitation in not seeking to resist the appeal when it came to the Court of Appeal a second time. Its work, therefore, is really important. It is also important that it has the means to carry out its vital job, as its role is a significant one. However, there are other gaps that we must look at as well.
Everybody accepts now that there was a serious departure from good reasoning in the case of Chan Wing-Siu in Privy Council back in 1985. When one reads the case, the odd thing is that the judgment, which was described as “taking a wrong turn” in the Supreme Court, was, actually, almost not based on the principal facts or arguments that had brought the appeal to start with. The noble Lord, the member of the Privy Council, giving the judgment in that case rather went off on a tangent and developed what was then regarded as the concept of secondary parasitic accessory liability.
The matter could have been resolved perfectly well on the facts of its own case. It is set out very well in what is a very detailed judgment of a strongly constituted Supreme Court in the Jogee case. I certainly do not fault the judgment of the Supreme Court in Jogee at all. It is exceedingly well-reasoned, and it is significant that not only the then President of the Supreme Court, Lord Neuberger, but the current President, the then deputy president, Baroness Hale, were there. The then Lord Chief Justice, Lord Thomas of Cwmgiedd, took the unusual step of sitting in the Supreme Court because of his experience in criminal justice matters. Intellectually, the Supreme Court in Jogee got the answer right and said that the approach, which had encompassed so many people into secondary liability in homicide offences, was wrong. However, some practical errors remain in its application.
Mr Mitchell
I am most grateful to my hon. Friend for giving way. He is a lawyer, so can he explain to me, as a layman, why, following this extremely well-written judgment on Jogee, which I have also read, the criminal justice system did not react with enormous alarm and immediately set in train reviewing the very large number of cases affected by that judgment?
Robert Neill
That brings me to my next point. There is a concern that, in practice, the filter effect that has been put to the bringing of appeals out of time and the way that it has been interpreted in cases such as Anwar and others has been particularly restrictive. That is the difficulty. It is very clear that the Court of Appeal in the Anwar case and subsequent cases has taken a very narrow interpretation of the substantial injustice point. That does not necessarily have to be the case on the basis of Jogee, but it was always made very clear in the Supreme Court’s judgment that one should not assume that the Jogee case would mean that every conviction for murder on the basis of joint enterprise should be overturned, or that in many cases, even where convictions for murder were overturned, there would not also be a conviction for manslaughter, where appropriate, but the level of foresight and involvement was less. That is the important point that we have to consider.
None the less, it is really important that we get to a situation in which people are convicted, certainly, of offences where they have done wrong, but they should be convicted of and sentenced for offences that properly reflect the level of culpability of their behaviour. When we do not get that right, confidence in the system is understandably undermined. That is my concern, which is shared by the Members who have already spoken, about the difficulty of bringing cases out of time to the Court of Appeal. Clearly, it is something that needs to be looked at. If the rule of precedent makes it difficult for a court to do that, perhaps Parliament and Government should indeed consider it.
I just observe in passing that there is, in any event, the proviso to the Criminal Appeal Act 1968, which would mean that if, once the case has been heard, no material injustice occurred, the conviction can be upheld. At the moment, we have a double test: a test to bring the appeal out of time; and then the proviso. The difference is that, in the test to bring the appeal out of time, the onus is on the appellant to meet that test, whereas, under the Criminal Appeal Act, the test in relation to the proviso puts the onus on the prosecution. That is something that needs to be considered.
When the Justice Committee looked at this matter with some care in evidence sessions in the last Parliament, the view was that it had to be seen in the context of a very unsatisfactory state of the whole law of homicide. The distinction between murder and manslaughter remains extremely unclear in this country. Unfortunately, the Government have not so far taken up the opportunity of examining that. The logical route would be to ask the Law Commission to carry out such an examination.
In evidence to the Justice Committee in the last Parliament, Professor David Ormerod, a former chair of the Law Commission, a senior commissioner for criminal law and a distinguished academic Queen’s Counsel in criminal law matters, identified exactly that point. He said that a review of the law of homicide still represents the
“best solution”
that
“could encompass the decision in Jogee.”
It would enable us, thereafter, to encompass the consequences that stemmed from it. Referring to the Supreme Court’s decision, he said that
“they are constrained, as ever in the common law, by the facts of the case and the nature of the argument.”
That is our common law system. He went on:
“It was not possible for them to offer a comprehensive review of the whole of the law relating to secondary liability, which the Law Commission could do”.
One of my asks of the Government, as well as revisiting the test for bringing the appeals out of time, is to take up the Law Commission’s willingness to examine that area. There is vast expertise in the Law Commission, which is sometimes under-used. It can look at the matter dispassionately and set the difficulty that we have with secondary liability in these cases into the broader difficulties that we have with the law of manslaughter. We heard compelling evidence from criminal practitioners, representatives of the Criminal Bar Association, about the real difficulty and complexity of giving direction to juries in manslaughter cases.
Judges have given most careful directions, after discussions with counsel on both sides, but none the less they frequently find juries returning and sending a note seeking further clarification. The greater the lack of clarity, the greater the risk of injustice. I hope that issue can be resolved. I suggest to my hon. and learned Friend the Minister, whom I welcome to her post, that that would be a sensible and measured approach to find an intellectually sound way forward on this intractable issue.
The other matter that I would like the Minister to consider is the review of the Crown Prosecution Service guidelines, which the Justice Committee has taken evidence on. The fact that the review is taking place is welcome. The hon. Member for Manchester Central and my right hon. Friend the Member for Sutton Coldfield referred to the disproportionate impact that the use of prosecutions using joint enterprise has on certain communities.
The fact is that a doctrine developed some 300 years ago still has effects on the social life of 21st century Britain, and those effects are very different from what Lord Hale described in his “History of the Pleas of the Crown” in about 1670. We need to have a means of applying that prosecutorial tool in a way that reflects modern society.
I hope that the public interest element of the Attorney General’s guidelines can be strengthened to consider the appropriateness of using this tool in the way we have discussed, given the impact on certain communities within the United Kingdom. I hope that those are constructive suggestions that we can take forward from this debate.
Stephen Pound (Ealing North) (Lab)
It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill). I take it from his words and from the emotion behind them that the door to the Justice Committee is now open and that at some future stage it will consider this matter, because I think that is one of the loci from which we can seek to bring an end to this horrendous, disproportionate nightmare, which is a stain on British jurisprudence. In this appalling situation, 40 seconds can lead to 12 years in prison, and somebody who just happens to be within a group of people can find themselves facing the best part of their young life locked away for something they could not stop, even if they wanted to.
It is often said that the House is at its worst when we all agree unanimously, but I think that this is the exception to that rule. Tribute has already been paid to JENGbA, Charlotte Henry, Gloria Morrison and all the other campaigners. I would like to think that even without JENGbA’s informed and passionate prodding, people such as my hon. Friend the Member for Manchester Central (Lucy Powell) and the right hon. Member for Sutton Coldfield (Mr Mitchell) would have brought the matter forward, because this is a stain on the British legal system. The Prime Minister has referred to burning injustice. Well, this injustice is burning so strongly and brightly that the smoke is almost choking us, and we cannot see the sense and sanity of the law for the obfuscation that has come from this ridiculous piece of law.
This law was originally introduced to deal with duelling. I appreciate that duelling used to be a pastime of Members of this House, but how can a provision on aiding, assisting or encouraging—or even for parasitic accessory liability—a couple of people duelling in Hyde Park a couple hundred years ago somehow lead to my constituent Alex Henry, a man with a four-year-old child whom he has hardly seen, facing 12 years in prison for what happened in 40 seconds when he was with a group of young men? How on earth can we move from that piece of medieval law to the present situation in which people are suffering?
I suggest that the reason something happened in this area of jurisprudence in the 1990s comes down to one word. It has already been mentioned by the right hon. Member for Sutton Coldfield, who I must forgive for destroying my stereotype of stern, unbending Conservatism, because he has shown himself to be humane, decent and informed on this, for which I pay him full tribute. The word he used was “gang”. In the 1990s, there was an assumption that groups of young people—and young black people—were a threat and that they were somehow out to destroy society: they were corrosive, their music was unbearable, their accents incomprehensible, their clothes unforgivable and their activities incomprehensible to most people. I like to think that those in the senior echelons of the law are well versed in street culture, but on this occasion I think they saw gangs as a threat. They somehow transposed groups to gangs. This piece of draconian, lead-like law was brought in to crush a threat that did not actually exist. Yes, of course there is street crime and violence, but it is not confined to one group of people. Young people such as Kenneth Alexander and dear Alex Henry, who were simply out with friends, now face the life that is ahead of them because of how the law works.
There are few tasks more melancholy that visiting a constituent in prison, and one of the frustrations is the inability to do much more than sympathise and show that they are not forgotten. I think that JENGbA’s work is so crucial because it shows that these people have not been forgotten. Would it be inconvenient for the judicial system to review thousands of cases? Damn right it will be inconvenient, but I will take a bit of inconvenience over 12 years in prison for hundreds of people, seeing their lives frittered away, living in the place where sunlight comes with stripes. As far as I am concerned, they have the right to call upon the judicial system and, if necessary, to be inconvenient.
When Alex’s sister first contacted me about this case, I could scarcely believe it. I had known the family. He had lived a couple of streets away from me—later he became an economic migrant and moved down to the constituency of my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury), but I still think of him as a Hanwell man. I wrote to the then Minister for Policing, Criminal Justice and Victims, the right hon. Member for Ashford (Damian Green). This is what he wrote in reply, in June 2014:
“In my view, the law on joint enterprise serves a useful purpose for bringing people to justice when they have been involved in the commission of an offence. I do not share the view that the law penalises innocent bystanders and no longer serves a valid purpose. We have no plans to review or amend the law at the moment.”
I am sorry, but this law does not serve a useful purpose: it penalises the wrong people, it brings the law into disrepute, it punishes wholly disproportionately, it destroys families, it wrecks individual lives and, above all, it disengages a whole group of people from the legal process, because when they see a system go so wrong, how can they possibly have any confidence in it? I have no argument today with the right hon. Member for Ashford, but I think that he was wrong. I think that his letter was based on a brief that probably came from somebody wearing a wig. As far as I am concerned, this law has to be changed.
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
My hon. Friend generously gives the right hon. Member for Ashford (Damian Green) the benefit of the doubt, but clearly he was reading from a brief and he has been proven wrong, because the Supreme Court ruled in 2016 that the courts were wrong.
Stephen Pound
Absolutely. The Supreme Court ruled that the law had been interpreted incorrectly, but that is only half of it. Interpreting the law incorrectly is one thing, but righting the wrong is what has to happen now.
Stephen Pound
When it comes to righting wrongs, I give way to the hon. Gentleman.
Robert Neill
The hon. Gentleman is making a passionate case, and I agree with him that righting this wrong in the way the law has been applied is important. Does he agree that there is a distinction between the concept of joint enterprise and how it has been applied? For example, if he and I jointly agreed to commit a burglary, the application of joint enterprise in those circumstances would be perfectly reasonable. The problem is the extension to groups of young people when one of them commits acts of violence and when it is suggested that foresight can be equated with intent. That is taking the doctrine beyond a sensible application.
Stephen Pound
The hon. Gentleman has indicated a way forward. He knows the case of Craig and Bentley, which I remember very well indeed. Let us not forget that one of them was hanged in a joint enterprise. Is it not a salutary thought that if the present law on joint enterprise had been applied when we had the death penalty, 20 young men would have been hanged. Can you imagine? If everybody in a group of people where somebody dies was said to be guilty, as with Craig and Bentley, would they then all have been hanged? The mere thought of that is so horrific—so disgusting—that it surely brings into sharp relief the insanity of this legislation and the idea that this great blanket of culpability is cast over a whole group of people. This law is nonsensical. It is cruel; it is brutal; it is outdated; and it has to go.
Amazingly, this is the first time that we have debated this subject on the Floor of the House. I hope that today will be the beginning of a process that leads to people like Alex Henry seeing daylight, and his child and his family, again. When I last saw Alex—I have visited him a couple of times—he was keeping his head down and keeping his nose clean. He was working in the kitchen. He actually had kind words for the staff at HMP Whitemoor, but the hope was going out of his eyes. You could actually see him looking at that long, long stretch ahead of him.
As my hon. Friend the Member for Huddersfield (Mr Sheerman) mentioned, Alex is a man on the autism spectrum. In his appeal, evidence was submitted on his behalf by none less than Professor Baron-Cohen. One cannot get a higher authority than that. Was that opinion accepted? Clearly not, because my constituent is still in prison. He is a young, autistic man who, for 40 seconds of his life, did not stop something happening. He did not do anything wrong; he did not stop it happening. Can it really be right in this day and age that the law we are all sworn to uphold—that we are a part of as part of the establishment of this country—is having that impact on people, disproportionately on young black men, and disproportionately on the innocent?
I profoundly hope that this debate is one of those occasions when something really good comes from this place—where we put down a marker to say, yes, we thank JENGbA for all its work, but even without JENGbA, in our own heart of hearts, in our own knowledge and analysis of the situation, we realise that this stinks. It is wrong—dangerously, destructively, corrosively wrong. We have to do something about it. Let today be the day that we consign the present interpretation of joint enterprise to the dustbin, move forward and bring the law back into repute—take it away from ill-repute. I hope that Kenneth Alexander and Alex Henry can then take their rightful places in society where we want them to be. May they be here in the House of Commons, in the Gallery or wherever, rather than behind bars at the nation’s expense. We cannot go on like this.
Chris Green (Bolton West) (Con)
It is a pleasure to see you back in your place, Mr Deputy Speaker.
It is also a pleasure to follow the hon. Member for Ealing North (Stephen Pound), especially given the points that he raised about the local context—the 40 seconds leading to 12 years—the historical context and this ancient practice deriving from duelling. I appreciate the hon. Member for Manchester Central (Lucy Powell) bringing this important debate to the House.
Our justice system needs to recognise the context in which much crime happens. There is a social context. It is more than just an individual engaging with and committing crime. Friends and family have a huge influence on people’s lives, on what they do and on the moral framework in which they act. If an individual gets in with the wrong crowd, perhaps a gang or a mob, and those people encourage, force, direct or egg on people to commit crimes, the justice system has to take account of their actions. There has to be that justice. That is what friends and families of the victims, so often murdered, would want and expect.
Therefore, I would like to support the hon. Lady’s comments about improving the sense of proportionality and about the gathering and presentation of accurate data. It is so important that we have good data to base these decisions on in future. I also agree with her on bringing forward the CPS review.
I am not a lawyer, so I do not want to detain the House for too long. I recognise that following the Supreme Court ruling of February 2016 the CPS has consulted widely on new legal guidance for prosecutors in cases of secondary liability. I hope that the Minister agrees that hon. Members and their constituents would be best served by waiting for that guidance to be issued.
Mr David Lammy (Tottenham) (Lab)
I congratulate my hon. Friend the Member for Manchester Central (Lucy Powell) on securing this debate and on the way in which she has gone about representing her constituents, many of whom I met a few weeks ago, who are caught up in this terrible nightmare. I pay tribute to the right hon. Member for Sutton Coldfield (Mr Mitchell), who has championed and taken up many of these issues consistently in this House over the past few years.
The doctrine of joint enterprise is a common law doctrine very much derived from judicial decisions, not legislation passed by Parliament. As has been said, it is now time for Parliament to reflect hard on where we have arrived at and on the fact that this debate is essentially about juveniles—people as young as 14 who are looking at spending significant stretches of their lives behind bars. This debate is about what we have come to describe as “gangs”. We do not use the word “gangs” when we are talking about the Bullingdon club; we do when we are talking about black youth in constituencies such as mine or white youth in constituencies such as Salford in north-west England.
That is why it is so important that we look hard at a doctrine that stretches back to 1846, when two cart drivers engaged in a race that killed a pedestrian. Throughout the 20th century, further court judgments clarified the joint enterprise doctrine in the case of murder. Even if there is no plan to murder and one party kills while carrying out a plan to do something else—for example, robbery—the other participants can still be found guilty. The use of that doctrine has been criticised by academics, by legal practitioners and by the Justice Committee. I want to associate myself with all those remarks and, in particular, with the fantastic work of JENGbA over the past few years.
Following the review that I did for the Government, it is important that we recognise that in black, and particularly Muslim, communities, there is tremendous concern about our judiciary. In those communities, the judiciary do not appear to be independent and justice is not perceived to be blind. That is why I was so disappointed that, when I proposed a target in my review, it was roundly rejected by our senior judiciary and by the Government, although a target is not prescriptive but merely a goal.
I am concerned that the independence that our judiciary say they have, and rightly have in our democracy, means that they are hugely detached from the communities that we are talking about. They do not have to defend their actions in Tottenham town hall or Manchester city hall. They are never present in those communities. They do not have the kinds of surgeries that we do. It is really important that they reflect hard on the common law tradition. In other jurisdictions such as Canada, Australia and New Zealand, there has been progress on proximity and diversity in relation to the judiciary, but in this country we appear to be stuck. On this occasion, it is absolutely clear that the common law makes no common sense. That is why I referenced joint enterprise in relation to black, Asian and minority ethnic communities in my review.
The offence of joint enterprise has long been justified, by Ministers of both Conservative and Labour hue, on the basis that it sends a wider social message. I will not quote the right hon. Member for Epsom and Ewell (Chris Grayling), a former Justice Secretary—hon. Members will recognise that I do not need to; they will know what his views would be—but let me quote Lord Falconer. He said of joint enterprise in 2010:
“The message that the law is sending out is that we are very willing to see people convicted if they are a part of gang violence—and that violence ends in somebody’s death. Is it unfair? Well, what you’ve got to decide is not ‘does the system lead to people being wrongly convicted?’ I think the real question is ‘do you want a law…as draconian as our law is, which says juries can convict even if you are quite a peripheral member of the gang which killed?’”
I want to say that the former Lord Chancellor Lord Falconer got it wrong, and the perception in the sort of communities we are talking about is that this is very wrong. Joint enterprise raises significant issues of miscarriages of justice, which must command the attention of this House and of our wider justice system.
Afzal Khan (Manchester, Gorton) (Lab)
I want to put on the record my thanks to my right hon. Friend for the work he has done with his review. I also thank my hon. Friend the Member for Manchester Central (Lucy Powell), who represents a neighbouring constituency.
This issue has also touched the lives of my constituents. Yesterday, I spoke to Louise Otway, whose son was sentenced to 30 years under joint enterprise. I am concerned by two issues, as a former serving police officer in the Greater Manchester police and as a practising solicitor. My first concern is that, although the Supreme Court has said that the law has taken the wrong turn, nothing has been done to put that right, which is not acceptable. Secondly, as is becoming clear from listening to my hon. Friends, BME and working-class defendants are over-represented, with the use of gang narratives playing into the stereotyping and targeting of these groups. Does my right hon. Friend agree that it is essential we have greater transparency, through the official statistics, about the make-up of joint enterprise defendants?
Mr Lammy
My hon. Friend’s point is exactly right. The issue is: what would happen if the principal’s intent was graver than the accessory’s? In all the cases that have been mentioned, that is absolutely the case. What would happen if the outcome of whatever act the principal carries out is far graver than the accessory was aware of? Getting into questions about the foresight and intent of a young adult is next to impossible, given all that we know in modern times about child psychology, so it is absolutely right that young people should not be convicted in those cases.
Robert Neill
The right hon. Gentleman is making a powerful case and perhaps I can offer him some support. As evidence to the Justice Committee has made clear, practitioners feel it would be of greater assistance to juries deciding on these issues if there were a statutory framework within which they could work. We have done that with the Theft Act 1968, which replaced out-of-date common law arrangements. Ironically, in the Jogee case, the trial judge of first instance was this country’s first black woman High Court judge, but she was obliged to follow the rules of precedent. Had there been a revision of them by statute, the situation might have been different.
Mr Lammy
The hon. Gentleman is right. He makes the case that it is now for the House really to get thinking about these matters.
As the hon. Gentleman will be aware, an accessory party can be liable under joint enterprise, even if they withdraw from a group before any crime is committed. Many hon. Members will think of the example of a group of students in a playground or a park, where someone talks about teaching someone a lesson—in fact, we might recall such an occasion from our own lives when we were younger—and one of those individuals thinks that teaching a lesson involves significant violence, assault or even something ending in murder, and just because the group had discussed teaching someone a lesson, someone else may end up in prison for murder.
We have been in the House when or know of times when Members have picked up the Mace—I am thinking of the former leader of the SNP and Lord Heseltine. If you picked up the Mace and an older Member thought it was coming towards them and died from a heart attack, you would be in serious trouble. However, if you had discussed it with your colleagues beforehand, they too would be in serious trouble. A whole political party—on that occasion, the SNP—might have been heading towards that. That shows how ridiculous this situation has become, and it is why we need an urgent review.
We are having this debate after politicians have said, “We have to crack down on gangs and that is why we are doing this.” But has it worked? Knife crime is rising: in England and Wales, there were 36,998 knife crime offences in the 12 months to the end of June. Hospital admissions as a result of knife crime and the use of sharp objects are rising. We have a real problem in London, which the Mayor of London is trying to deal with. Has this therefore had the effect that people suggested it would? It has not. It has not had that effect because it is not minors driving knife crime—it is serious organised criminals: gangsters and kingpins. They are driving the trafficking of cocaine and drugs, which is leading to the turf wars that are making some of the communities we represent more violent. The 14, 15 and 16-year-olds or those in their early-20s locked up for the offence of joint enterprise do not know anything about getting a tonne of cocaine from Bolivia or Colombia. We must go after the gangsters, but we are hearing very little about that.
The Ministry of Justice’s own research on joint enterprise convictions understands the psychology of young people. It understands the need of teenagers and juveniles to belong to a group. It understands that they have a predisposition towards risk, seeking excitement and reckless behaviour. It understands their inability to inhibit their impulses and the fact that they have less self-control. All of us in the House who are raising or have raised teenagers will recognise all those characteristics. Are we really going to throw young men—black and white—into prison because they are young?
I have two boys at home. They navigate the streets of north London on their way to school and one in particular goes through some high knife-crime areas. I am raising boys who would never ever take a knife out of the house and use it on anybody else—I am absolutely sure about that—but can I say, if something is going on in a park, that one of them might not drift towards the action? Hand on heart, as a father, I cannot say that. I do not ever want to have to visit one of my own children in prison. None of us should want ever to have to visit young people in prison. None of us should want that waste. None of us should want those criminal records. It is time that this House acted.
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
I am grateful to speak in this important debate, and it is always a pleasure to follow my right hon. Friend the Member for Tottenham (Mr Lammy). I congratulate those who secured this debate, especially my hon. Friend the Member for Manchester Central (Lucy Powell), and I thank the Backbench Business Committee for allocating it some time.
When my constituent Ms Gillian Hyatt first came to see me in 2012 about her sons in prison, I thought it a straightforward case of a mum doing her best for her children despite the fact that they had offended. I commend her for pressing me to look beyond a concerned mother and to examine the JENGbA campaign. I attended JENGbA’s briefing in Parliament only a few months ago, as did most of my colleagues here today. I was shocked by consistent reports of case after case of mostly young men—including, as we have heard, a disproportionate number from the black, Asian and minority ethnic communities—who had been not only convicted but handed the severest of sentences. I commend JENGbA for its campaign, and for its briefing for today’s debate.
Like other Members, I have not heard anyone say that all those locked up are innocent. Called “inside campaigners”, some may well be, but the message I hear most strongly is that although some may be innocent, many are guilty of lesser offences. Some of those offences are much less serious, and therefore the tariffs handed down by the judges seem questionable at least. The numbers are huge, but efforts to assess how many people are involved have proved difficult. The Ministry of Justice has not produced statistics for those found guilty through joint enterprise, and one has to ask why.
The Bureau of Investigative Journalism estimates that between 2005 and 2013, between 1,800 and 4,500 people were prosecuted for murder with joint enterprise used as part of the charge. However, I am getting ahead of myself, because the fundamental flaw in using joint enterprise to prosecute for murder was exposed, as we have heard in speech after speech, by the Supreme Court in 2016. The Court held that in 1984 the law had taken “a wrong turn”—I think every speaker has mentioned that, and it must be one of the weakest euphemisms ever heard—in the case of Regina v. Chan Wing-Siu, and it overturned the verdict of Regina v. Jogee.
Jogee was retried and found not guilty of murder but guilty of manslaughter, and his mandatory life sentence was replaced by an appropriate sentence for manslaughter. The Supreme Court also ruled that cases prior to Jogee could only go back to the Court of Appeal if people could prove that their conviction was a “substantial injustice.” Despite the hundreds of cases at least—I repeat that the Ministry of Justice cannot, or will not, say exactly how many there are—the Court of Appeal has denied every joint enterprise appeal. Incidentally, the youngest person to receive a life sentence was just 12 years old when charged.
The common law doctrine of joint enterprise covers two types of offence. The first is “assisting and encouraging”, also known as “aiding and abetting”, and I have nothing to say about that. The other is “parasitic accessory liability”, which I find quite troubling. Even the title sounds as if the accused must be guilty of something, or has some form of vicious disease. PAL is controversial, as the secondary offender would not need to intend the crime, but merely have been able to foresee it.
Traditionally, for someone to be convicted of murder, it had to be proved that the killer intended to kill, or at least to seriously injure someone. PAL was therefore quite a shift, and led to hundreds, if not thousands, of convictions over 30 years since 1985. The Supreme Court decision in 2016 on Regina v. Jogee must, at least statistically, call some of those convictions into question. That decision, however, applies to out-of-time appeals only if it can be proved that a “substantial injustice” has occurred—that was tested in Regina v. Johnson in 2016—and proved categorically that a change in the law “would” have made a difference. The Criminal Appeal Act 1968 allows the court to quash a conviction where the misapplication of law “might”, rather than “would”, have made a difference. Since the Jogee decision, none of the 800 men, women and children currently supported by JENGbA have successfully appealed against their conviction—not one.
My constituents Asher and Lewis Johnson were both sentenced to 16 and a half years for a murder committed by another man. I will not go into great detail, but suffice it to say that they maintain they had no knowledge of the guilty party’s intention. Asher was a youth worker who had never been in trouble before. It might be that there is more to the case, but for them to be found guilty by association seems worthy of fresh examination, especially given the Supreme Court ruling that the law had taken a “wrong turn.” It certainly had for the Johnson brothers. They want a fresh hearing with the evidence presented in light of the Jogee ruling, but that has been denied. I cannot know all the facts, and like all colleagues here I do all I can to support the police in their difficult job, but something here just does not feel right.
In conclusion, JENGbA is calling for the abolition of parasitic accessory liability charging—as my hon. Friend the Member for Manchester Central explained in her excellent speech, CPS guidance on that is still very confusing. It also calls for the abolition of child life sentences, and for the Ministry of Justice to collect data on all joint enterprise secondary party convictions. It argues that this is a
“common law, used against common people, that makes no common sense.”
I believe it has a very strong case.
Ruth Cadbury (Brentford and Isleworth) (Lab)
I congratulate my right hon. Friend the Member for Tottenham (Mr Lammy), my hon. Friend the Member for Manchester Central (Lucy Powell), the right hon. Member for Sutton Coldfield (Mr Mitchell) and the hon. Member for Bromley and Chislehurst (Robert Neill) on securing this debate, and I thank the Backbench Business Committee for allocating it time today.
I represent some of the family of Alex Henry, whose case was explained in some detail by my hon. Friend the Member for Ealing North (Stephen Pound). Alex Henry was involved in a fatal street fight in Ealing in 2013, and has spent four years in prison, serving 19 years under joint enterprise. His mother, Sally Halsall, is my constituent, and last October I met her and Alex’s sister, Charlotte, along with my hon. Friend the Member for Ealing North and the right hon. Member for Sutton Coldfield. I really came to understand the importance and significance of joint enterprise, and the need to review the law.
In August 2013 Alex Henry went shopping with three friends. A confrontation took place that lasted just over 40 seconds. It is not clear why the confrontation took place, but it may have been triggered by a stare. One young man used a knife from within a bag, and he stabbed two brothers, one of whom tragically lost his life. On the sixth day of the trial, the man with the knife pleaded guilty to murder and grievous bodily harm with intent, and was sentenced to 22 years. Alex Henry received a sentence of 19 years—only four years less—despite never touching the knife or even being aware of its existence.
Since Alex’s conviction in March 2014, his family have campaigned tirelessly with JENGbA to reform the law of joint enterprise. The injustice, as the family saw it, was that traditionally, for someone to be found guilty of murder the Crown needed to prove that the defendant inflicted fatal harm while intending to kill, or at least to commit very serious harm. Conversely, under joint enterprise the Crown needs only to prove that the defendant foresaw the possibility that the crime “might” happen, rather than that they intended it and knew that it “would” happen. This means that it is easier to prove the guilt of the accessory than the principal offender. Therefore, in Alex’s case the Crown needed to prove that Alex foresaw the possibility that the stabbing “might” happen, rather than that he intended and knew that it “would” happen.
There was no evidence that Alex knew about the possession of the knife and therefore that someone might be stabbed. However, the Crown persuaded the jury by arguing that “friends tell each other everything”, and therefore that Alex must have known the other man was in possession of a knife that day, and foreseen the possibility of its use if any altercations were to arise during the shopping trip. “Friends tell each other everything and therefore the crime could have been foreseen”—what a shocking indictment of the way the law works if that can lock up a young man for so long.
As we have heard, in February 2016 the joint enterprise law was successfully reformed. Now, rather than foresight, the Crown needs only to prove that the defendant intentionally encouraged or assisted the principal offender while knowing that the crime “would” take place. The law of joint enterprise has convicted thousands of men, women and children, 800 of whom are supported by JENGbA. However, the courts have ruled that the change in the law will have no automatic retrospective effect for out-of-time appeals, which include every case resulting in conviction 28 days or more before the change in the law. Instead, those out-of-time appeals will be allowed only if a defendant can prove a substantial injustice, which means proving that the change in law would, without doubt, have made a difference.
However, that is an impossible test, as was found in the case of Regina v. Anwar in 2016. The evidential bar has not been raised by Jogee; in particular, presence at the scene of the offence can amount to encouragement of the crime. Moreover, proof of the defendant’s intent to encourage, coupled with his knowledge that the crime would happen, can be inferred from the friendship of the co-defendants, just as foresight was inferred before Jogee.
If nothing more need be shown evidentially since the change in the law, how can a defendant prove that the change in the law would have made a difference? In comparison, those who have suffered a misapplication of the law changed in Jogee need to show only within 28 days of conviction that the conviction is unsafe, in that the misdirection might have made a difference. So far, no out-of-time case has succeeded on appeal—including Alex’s appeal, which was rejected.
In his excellent report on black and minority ethnic people in the justice system, my right hon. Friend the Member for Tottenham, who is no longer in his place, rightly shone a light on unacceptable inequality, particularly for young people from those communities. But two other factors are particularly relevant to joint enterprise. First, there is maturity. Many convicted under joint enterprise are not in full maturity; the justice system is beginning, slowly, to understand that young men under 25 are not mature and need to be considered slightly differently—their maturity must be a factor in their cases.
The other factor is the autism spectrum. Alex Henry’s diagnosis of autism was important in his case. Despite Alex’s having had many problems from an early age, no one had suggested to him or his family that he might be on the autistic spectrum until a viewer of the documentary made about the case wrote to the family. Alex’s family then arranged for Alex to be assessed by Professor Simon Baron-Cohen, the leading academic on autism and Asperger’s syndrome in this country.
The professor’s report states that it is incredibly unlikely that Alex could have foreseen what would or might happen in those 40 seconds since, due to his autism, he cannot predict the actions, behaviours or intentions of others. The Court of Appeal rejected that ground because Alex’s mother has a PhD in psychology and so she could have coached Alex in “how to act autistic”. That is shocking. The court also said that it could not understand why Alex was diagnosed so late in life, aged 23, despite seven previous mental health assessments, which did not result in a diagnosis.
Mr Mitchell
I want to strongly support what the hon. Lady is saying about the judgment of the court in that case in respect of autism. I have read the case and, as a layman, I find the response of the court completely inexplicable.
Ruth Cadbury
I thank the right hon. Gentleman so much. Anybody who has had any contact with people who have been diagnosed with autism at a later stage knows that the condition is often not diagnosed early. Many people go though many difficulties in their lives before being diagnosed, if at all. Alex was one of those in that unlucky situation. Because autism is an invisible disorder, many assessments found traits of autism as highlighted in Professor Baron-Cohen’s report. That could be a factor in appeals.
The refusal of Alex’s appeal has left the family devastated, as the House can imagine, but they are determined to see him proved innocent. In their view—and mine, from what I know of the case—he is not a murderer. How many people in prison for joint enterprise have undiagnosed autism? We need to look at that.
Since Alex’s appeal was rejected last year, his sister Charlotte has applied to challenge the “substantial injustice” at the Supreme Court. The family are also taking Alex’s case to the European Court of Human Rights. They believe that joint enterprise breached article 7 of the European convention on human rights and the principle of legality that holds that there shall be no punishment without law. Since those convicted under joint enterprise were not actually convicted under a true law, their presumption of innocence under article 6(2) remains, and it is breached by the need to prove that the change in the law would have made a difference.
In October 2016, the Select Committee on Justice, on which I have the pleasure and honour of serving, wrote to the chair of the Law Commission to suggest that it review the law of joint enterprise, given the lack of legal clarity in the wake of the Jogee judgement—particularly on how juries should be directed on the question of intention. Unfortunately, the final version of the 13th programme of reform omits any work on joint enterprise. I know, however, that the Justice Committee’s Chair will continue to push those points.
Robert Neill
The hon. Lady is right that the Committee will want to pursue that point. However, there is nothing to stop the Government themselves asking the Law Commission to carry out a review, as has happened a number of times in the past.
Ruth Cadbury
Like the hon. Gentleman, I look forward to the Minister’s response.
As we have heard, the Justice Committee also wrote to the Director of Public Prosecutions suggesting clarification on the intention of the defendant. I support the clear demands put forward by my hon. Friend the Member for Manchester Central: proportionality, the need for proper data, a review of the CPS guidance and a review of older cases. All those are essential, and we look forward to the Minister’s response on all those issues.
For the sake of Alex, the thousands of others imprisoned under joint enterprise and their loved ones, I support the calls of colleagues across the House that the injustice be rectified. Let us right the wrong. If we really want to address knife crime, let us learn from the places that have actually brought it down.
Andy Slaughter (Hammersmith) (Lab)
I have had the privilege of working with JENGbA, and particularly with Gloria Morrison, for seven or eight years, and I am pleased that the organisation is now located in my constituency. However, I am sorry that we have not made more progress—by “we”, I mean the House and the Government. As we have heard, JENGbA has a phenomenal record of representing 800 families in these difficult cases. I have a number of constituents serving long sentences who were convicted before the Jogee judgment and are therefore potentially subject to review; I am sure many other Members do too, given the numbers.
Before coming to those points, let me say that these matters are not easy. I am sure that we all also have constituents who have been the victims of violent crime. As my hon. Friends the Members for Sunderland Central (Julie Elliott) and for Poplar and Limehouse (Jim Fitzpatrick) said, we are concerned that people should be punished suitably for crimes that they have committed. There are famous cases, including those of Garry Newlove and Stephen Lawrence, in which joint enterprise played a part in the convictions. When very serious offences are committed, particularly murder, and there are victims and grieving families, it is perhaps only human nature to want to bring people to justice. The difficulty has arisen because, particularly where there are large gangs or groups, it is more difficult to identify who the actual perpetrators are. The danger of a miscarriage of justice is therefore all the greater.
Several Members have referred to the history of what has variously been called common purpose, secondary liability or joint enterprise. My hon. Friend the Member for Ealing North (Stephen Pound) said that the offence was originally developed by the common law to deal with the social evil of duelling, almost as a matter of public policy rather than law. The leading case of Swindall and Osborne in 1846 was about two cart drivers encouraging each other in a race, one of whom killed a pedestrian. It is easy to see in such cases how one can attach guilt to the person who is not the primary perpetrator. My hon. Friend also mentioned the celebrated Craig and Bentley case, in which many factors were involved. On Sunday, it will be 65 years since the execution of Derek Bentley. It is 25 years since he was pardoned, and 20 years since his sentence was quashed. Bentley, who was 19, was hanged, but the actual perpetrator, Chris Craig, was not, because he was under 18.
However such cases were resolved, it is fairly easy to see the principle of joint enterprise at work, but, as has been pointed out by my right hon. Friend the Member for Tottenham (Mr Lammy) and others, we are now dealing with a number of new factors. There is the huge preponderance of people from black and minority ethnic communities who are convicted, there is the number of young people convicted, and there is, simply, the number of people who are engaged. It is, I think, wrong to say that not much attention has been paid to the issue; it is a question of what the outcomes have been. The Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), and his predecessors have produced a number of telling reports.
The Crown Prosecution Service guidelines have been reviewed, although they may still be imperfect, and, of course, there has been the Jogee judgment. That judgment is perhaps unsurprising. As we heard from my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury), before Jogee the level of the mental test for secondary participants was lower than the one applying to primary offenders. That had to change, and it has changed. There is, therefore, a possibility of review, but—I think the courts are cognisant of this—there is also the issue of floodgates. Will there suddenly be a huge number of cases to review because of a correction of the law—not a change in the law, but a declaration of what the law should have been all along? Many Members have said, “So be it”, but it is up to the Government to decide how the position is to be dealt with, and I am afraid that the Government have been wanting in that regard.
After Jogee, in November 2016, the then Secretary of State wrote to the Justice Committee:
“We have concluded that no further review of the law is necessary at this time.”
As far as I know, that is still the Government’s position, although we may hear otherwise from the Minister today. Let me say to the Minister that that is wrong. We need such a review. That will not be easy, because this is a complex and difficult offence and because there are arguments on both sides, but the law gets itself into a mess in exactly these areas. When I was a shadow justice Minister between 2010 and 2015, I urged my party, if it were subsequently to come to power, to look at some of these difficult issues. I am thinking of not just joint enterprise, but inchoate offences and, indeed, homicide. A number of common law offences that have developed over a period may not be fit for purpose in the modern world. I hope that we shall hear some positive answers from the Minister today. Reviewing the law in this respect cannot be left to the courts or the prosecuting authorities. Sooner or later, either this or a future Government will have to do it.
My final point—another JENGbA point—concerns evidence and statistics. I cannot believe that we are not collecting proper statistics. It is clear from the statistics that are available that a high proportion of people are convicted of homicide on the basis of joint enterprise. According to some estimates, the proportion who are sentenced is approaching 50%. Two years ago, I asked a parliamentary question on the subject. My question was:
“To ask the Secretary of State for Justice, how many people have been convicted under joint enterprise in each year since 2010.”
The answer was as follows:
“Such information is not held centrally and could only be obtained at disproportionate cost.”
That, too, is quite wrong. If we are to deal sensibly with this difficult and sensitive matter, we must have the facts.
It would be wonderful to hear from the Minister today that there will be a review, and that the Government will refer the matter to the Law Commission, as was indicated by the Chair of the Justice Committee. It would certainly be welcome to hear that there will be a proper collection of statistics, so that we have a sound basis on which to introduce reform.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
I congratulate the hon. Member for Manchester Central (Lucy Powell) and her colleagues. They deserve great credit for raising this important matter, and for posing a number of challenging questions.
The consequences of the Jogee decision include, of course, uncertainty and distress for victims and relatives who now wonder whether those who have been held responsible for violent crimes against them will have their cases reopened and their sentences quashed. The right hon. Member for Sutton Coldfield (Mr Mitchell) and the hon. Members for Sunderland Central (Julie Elliott) and for Hammersmith (Andy Slaughter) rightly reflected on that. On the other hand, we are all agreed that the so-called wrong turn in the law means that there have undoubtedly been many miscarriages of justice, and people have been convicted and sentenced for crimes far graver than those for which they should have been held responsible. As we know, thanks to the excellent work of the right hon. Member for Tottenham (Mr Lammy), serious questions have been raised about its disproportionate effects on young men from black and minority ethnic communities.
Members who are far more qualified than me—including the hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee—have explained why the decision of the Privy Council in the 1985 case of Chan-Wing Siu was wrong and was required to be “corrected” by the Supreme Court. For me, that correction raises three discrete questions.
It is clear that the law after 1985 has been wrongly applied, and that that has resulted in real injustices. The first question to ask is whether the law on joint enterprise and parasitic accessory liability is now operating as we want it to. How should the criminal law respond when a person engages in a joint enterprise with a principal who goes on to commit a more serious offence outside the scope of that enterprise? I think that, on paper, the Jogee decision is better than what was in place previously, but Members on both sides of the House have raised concerns about whether it is operating effectively in practice, or as Parliament would wish. The hon. Member for Brentford and Isleworth (Ruth Cadbury) gave appalling examples of judicial reasoning that gave real cause for concern.
The situations in which joint enterprise might arise, and the different views of culpability, are many and varied. A number of Members have focused on the effect on young people and gangs in particular, and we have heard powerful arguments for reform, especially from the hon. Member for Ealing North (Stephen Pound) and the right hon. Member for Tottenham, but joint enterprise arises in many other circumstances. We therefore need to seek a solution that can respond adequately to all the different facts and circumstances. Sentencing is a related issue. Does the application of mandatory sentences in some cases mean that punishments cannot reflect the different levels of culpability of principal and accessory in certain circumstances, and might that, too, require reform?
There are also serious questions to be asked about appeal rights, about which the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) spoke eloquently. If the decision in the 1985 case had been in statute and reflected the will of Parliament, and if it had then simply been amended or replaced in 2016, there would have been no possibility of a right to appeal for those convicted between those times. As the right hon. Member for Tottenham said, however, common law is very different. The Supreme Court is saying that the law was applied wrongly by the courts, and that people have been convicted of crimes that they did not commit. It cannot possibly be right that no challenges to those convictions have been successful. There is a strong case for saying that the bar for appeals against such decisions has been set too high.
These are difficult decisions. It has been useful for Members to be able to air their views, but I cannot help agreeing with the Chair of the Justice Committee that a thorough and comprehensive review is required. That work is urgently needed if we are not to return to this issue in the very near future.
Yasmin Qureshi (Bolton South East) (Lab)
I congratulate my hon. Friend the Member for Manchester Central (Lucy Powell), the right hon. Member for Sutton Coldfield (Mr Mitchell), the hon. Member for Bromley and Chislehurst (Robert Neill) and my right hon. Friend the Member for Tottenham (Mr Lammy) on securing this important debate. I also pay tribute to JENGbA on its highlighting of concerns about this law for many years, which contributed to the 2016 Supreme Court ruling that the law had taken a wrong turn.
We have heard many excellent and passionate speeches today. My hon. Friend the Member for Manchester Central spoke eloquently and comprehensively about the issues. The right hon. Member for Sutton Coldfield talked about the family of a victim and their suffering, and also about miscarriages of justice, making the important point that we must distinguish between groups and gangs. My hon. Friend the Member for Sunderland Central (Julie Elliott) rightly said that the victims’ families must not be ignored, but that miscarriages of justice must also be dealt with. The hon. Member for Bromley and Chislehurst, the Chair of the Select Committee, talked about the need for hon. Members to press the Government on legal reforms, and the importance of charges and sentences being correct and proportionate to the acts carried out. My hon. Friend the Member for Ealing North (Stephen Pound) contributed with his characteristically passionate oratorical skill, and talked about his constituent Alex Henry, as did my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury). I must also compliment my constituency neighbour, the hon. Member for Bolton West (Chris Green), on the points he made, specifically on the guidance for the prosecutors involved in making decisions on what charges should follow. My right hon. Friend the Member for Tottenham made a powerful speech about how this law has been applied in practice in certain situations.
The law regarding joint liability is complex. In 2012, the Justice Committee—when I was a member—carried out an inquiry into the operation of the legal doctrine of joint enterprise. In 2014, it revisited the issue to see what had occurred. Both reports deal with the status and application of the law before the Jogee case reached the Supreme Court, where judgment was handed down in February 2016. Although the reports predate this important judgment, much of their background information and analysis remain useful. The Committee explained that joint enterprise is a form of secondary liability whereby a person who agrees to commit a crime with another becomes liable for all criminal acts committed by the other person—the principal offender—in their joint criminal venture. The Committee suggested that the Director of Public Prosecutions should issue guidance on the use of the doctrine when charging. In particular, it wanted guidance on the relationship between association and complicity. I will return to the issue of the clarity of the law shortly, as it remains a concern of many Members even after the Jogee ruling.
Victims of crime are at the centre of Labour’s approach to justice. Victims, their families and the wider public must have faith in our justice system, and to achieve that our justice system must deliver certainty. Labour is also clear that, where there are substantial injustices arising from the application of the law of joint enterprise before the case of Jogee, these should be addressed.
Jogee is reasonably described as a landmark court judgment. It established that the law on joint enterprise had been misinterpreted in the criminal courts for three decades. The ruling turned on the judgment that an individual foreseeing a possible crime does not equate to “automatic authorisation” of it, as the law had been interpreted in previous cases. A higher threshold of proof is now required as a result.
It is welcome that the Supreme Court clarified the application of the law of joint enterprise. The judgment also set out criteria by which potential miscarriages of justice can be addressed where a substantial injustice has occurred.
Subsequent judgments following the Supreme Court ruling relating to joint enterprise appeals have developed the argument around the nature of the substantial injustice. Judgments in joint enterprise cases since Jogee have explained why the law must provide certainty.
It is clearly in the public interest that convictions are not automatically reopened when judges in later cases develop the law. To reopen all cases would undermine the certainty of convictions and deny closure to victims’ families. In the Court of Appeal case of Johnson, it was stated:
“The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law…It also takes into account the interests of the victim (or the victim’s family), particularly in cases where death has resulted and closure is particularly important.”
Labour is clear that victims of crime and their families must have confidence in our justice system. However, it is also vital that victims of miscarriages of justice have opportunities to have their cases heard. Without those opportunities, we would risk injustices being permitted to continue.
Those who believe that miscarriages of justice have been committed are of the opinion that how “substantial injustice” is defined has not yet been fully developed. It is right that more clarity is brought to this vital question, and we hope that today’s debate has contributed to that. In addition, we welcome the news that the Crown Prosecution Service is reviewing its guidelines and we hope that this opportunity will be taken to help provide more certainty and clarity for both victims and the wider public.
Many members of the public will be surprised to know that no official statistics are available on joint enterprise convictions. That can make it difficult to assess how big an impact the wrong turning in the law between the cases of Chan and Jogee has had in practice.
Almost two years ago, my hon. Friend the Member for Hammersmith (Andy Slaughter) asked the Secretary of State for Justice how many people had been convicted under joint enterprise in each year since 2010, and a similar request was made by the Justice Committee in the 2010-15 Parliament. The Government response was that the information was not held centrally and could only be obtained at disproportionate cost. That is a plainly unsatisfactory response to a very reasonable request for information that would shed light on the scale of joint enterprise convictions. May I ask the Minister to ensure that the Government take action to rectify this urgently? There is a need to keep proper statistics on offences of joint enterprise; that would greatly assist everyone.
Although there are no official statistics, the evidence that there is from academic research suggests that the doctrine of joint enterprise may have been applied in a discriminatory way. Where such profiling does exist, it shows that the doctrine is not only unjust but undermines the social contract and community support for our criminal justice system.
In its 2014 report on joint enterprise, the Justice Committee explained:
“It is clear that a large proportion of those convicted of joint enterprise offences are young Black and mixed race men. In the Cambridge research sample, 37.2% of those serving very long sentences for joint enterprise offences are Black/Black British, eleven times the proportion of Black/Black British people in the general population and almost three times as many as in the overall prison population. There is also a much higher proportion of mixed race prisoners convicted of joint enterprise offences than there are in the general prison population (15.5% compared to 3.9%).”
The Justice Committee also heard evidence about why there was disproportionality:
“Dr Ben Crewe from the Cambridge Institute of Criminology said that there were probably two main reasons for the disproportionate impact of joint enterprise on young Black men, the first being that ‘BME men may be over-represented in the kinds of communities where young men typically hang around in groups that are labelled by outsiders as gangs’ and the second that ‘an association may exist unconsciously in the minds of the police, prosecutors and juries between being a young ethnic minority male and being in a gang, and therefore being involved in forms of urban violence.’”
Many Members today have alluded to that point.
I pay tribute to my right hon. Friend the Member for Tottenham for his work in the Lammy review. It states:
“Despite the High Court ruling, experts in the field remain concerned about some of the legal practice on Joint Enterprise. Many are not convinced that the line between ‘prohibitive’ and ‘prejudicial’ information is drawn appropriately in the evidence put before juries when cases reach trial. People must be tried on the basis of evidence about their actions, not their associations—and the evidence put before juries must reflect this.”
This again demonstrates the clear need to publish accurate statistics on offences of joint enterprise. We ask the CPS to take this opportunity to rework its guidance on joint enterprise and to consider its approach, so that this and associated laws are not implemented in a discriminatory way and so that, when prosecutors are deciding the appropriateness of the charge and who needs to be prosecuted, this guidance is applied properly and fairly. I hope that the Minister takes this opportunity to do that today.
Mr Mitchell
It was unforgivably remiss of me earlier, Madam Deputy Speaker, not to welcome the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) to her first outing on the Government Front Bench. The whole House will wish her well in what will undoubtedly be the start of a long and distinguished ministerial career.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I am very grateful to my right hon. Friend for his comments. I would like to start the debate by commending the hon. Member for Manchester Central (Lucy Powell) for securing this debate on an issue that is close to her constituency and to her heart. I also want to thank my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and the right hon. Member for Tottenham (Mr Lammy) for supporting the motion today.
I fully recognise the importance of the law in this area. When anyone is charged and convicted of a crime, it will have serious consequences for them, their families and their victims. This is especially the case when the charge may be for such a serious crime as murder. I also recognise the sensitivity of this issue, given that the youngest of those that JENGbA supports was 12 when he was charged with the offence, as many Members have mentioned. That will obviously have a significant impact on his life.
Many Members have identified what the Supreme Court decided, but it is important to set out the principles involved because some Members put forward hypothetical circumstances that could result in a conviction for accessory liability, and I am not sure that all those circumstances were right. It is important to be clear what we are talking about from the outset.
First, I will summarise a few of the points in the Supreme Court judgment in the case of Jogee, which was handed down in February 2016. It concerned a very specific area of the law on joint enterprise called parasitic accessory liability, rather than the whole law of joint enterprise. Such liability arises when two people, person 1 and person 2, participate together in one offence, such as a burglary, and during those events, person 1 commits a second offence—for example, he or she murders a security guard. Under the law as it stood before Jogee, if the second person foresaw that the first person might act with the intention to kill or cause really serious harm and participated in the burglary none the less, that second person would be guilty of murder alongside the first.
In the Jogee judgment, the Supreme Court said that that was wrong, as the motion recognises. A person cannot be guilty merely for foreseeing that an accomplice might commit a second offence during the course of the original plan. Rather, the Supreme Court held that such a person can be guilty only if he or she intentionally encourages or assists a person to commit such an offence and intends them to have the mens rea required for that offence. The effect of Jogee is that members of a gang who are not the principal perpetrators of the crime will not necessarily be guilty of the crime in question unless it can be shown that they have intentionally encouraged or helped the principal perpetrators to commit that crime. As many Members have said, the Supreme Court also held that offenders convicted under the old test would be granted permission to appeal only if they had suffered “substantial injustice”. That is the position as it stands, as a matter of law.
I should like to respond to some of the points that have been made today. In the short time allotted, I am afraid that I will not be able to respond to them all. I shall concentrate on those that are identified in the motion. There has been a suggestion that the number of cases brought under joint enterprise has been unchanged since the Supreme Court judgment. As the hon. Member for Bolton South East (Yasmin Qureshi) and others have pointed out, however, the difficulty with that argument is that there are no official statistics to enable us to confirm or deny that. A number of Members have criticised the Ministry of Justice for not collecting that data, and we are looking into that. It might be possible to address that under our reforms relating to the common platform. I can confirm that the Ministry of Justice is looking into the matter.
The point was also made that there has not yet been a successful appeal. I understand that that could be extremely frustrating for the parties concerned, but it does not mean that there is no route to an appeal. There is a system to challenge any previous decisions. It is possible for an appeal to be made by an individual, who could also apply to the Criminal Cases Review Commission to have their case reviewed by the Court of Appeal. Indeed, a number of cases have been brought. [Interruption.] They have been brought, but they have been unsuccessful. There has also been criticism of the threshold that the Court of Appeal applies in relation to substantial injustice, but this is not a new test brought in by the Supreme Court in relation to Jogee. It is a long-applied test that the Court Appeal uses in relation to out-of-time appeals.
The key point that has been advanced in relation to the motion today is that there is a need for legislation. I should like to identify a few reasons why it might not be appropriate to bring forward legislation at this stage. First, the law on joint enterprise is not set out in statute; it has evolved through case law. Some criticism was made of that by the right hon. Member for Tottenham, but the evolution of law through the courts has always been an important part of our common law justice system. In our law, the common law has equal weight with law made by statute. No judge in the Jogee case identified a need for Parliament to change the law. Indeed, the hon. Member for Manchester Central has accepted, today and previously, that the Supreme Court ruling said that it was the responsibility of the courts to put the law right. Many Members have accepted that the law as set down by the Supreme Court is right, but some have identified that the implementation of that decision is flawed. I would like to make a few points in relation to that.
The Crown Prosecution Service has already amended its guidance and it is currently operating on guidance in line with the Supreme Court decision. More importantly, it has consulted on revised guidance for use by prosecutors. The hon. Lady has contributed to that, which is to be commended. I am told that the CPS aims to publish a summary of its response to the consultation and the final version of its guidance in the early part of this year.
Many Members have rightly identified the disproportionate number of black and minority ethnic defendants in these cases, and I am pleased that the CPS has confirmed that the revised guidance will take account of the Lammy recommendations, which task the CPS with taking the opportunity of reworking its guidance on joint enterprise to consider its approach to gang prosecutions in general. The CPS has also revised its internal resources on gangs in the light of the recommendations resulting from the Lammy review.
The motion calls for clarity in the law, but it does not identify what the lack of clarity is or how the law could be improved. Indeed, as the hon. Lady has said, what is needed is for the Supreme Court judgment to be followed. There is no suggestion that the law itself needs to be changed; it just needs to be enforced.
Robert Neill
Does my hon. and learned Friend agree that it is not the doctrine of joint enterprise that needs to be put on a statutory basis or given clarification, but that its operation in relation to homicide, and the law of homicide itself, would benefit from a statutory review? That has been suggested by the Law Commission and by the Criminal Bar Association, and it would give us an opportunity to deal with the anomalies in joint enterprise in the context of homicide. I think that that is what we are looking for.
Lucy Frazer
My hon. Friend is prescient; I was about to go on to the broader points that were made during the debate. He made that point in his own speech, and he has raised it in the Select Committee as well. As a new Minister, I am happy to consider that in due course.
Some other, broader points were made. My right hon. Friend the Member for Sutton Coldfield mentioned disclosure, which I know the Attorney General is looking at. Many other points were made, and I will happily address them when time allows.
To return to the motion, I recognise the importance of the law on joint enterprise and the impact that it can have on people, such as the constituents of the hon. Member for Manchester Central and the others mentioned today. For the reasons set out, however, the Government do not believe that the time is currently right for any changes to the law on joint enterprise. It is for the courts to interpret the law, as laid down by the Supreme Court. I hope that the revised guidance on secondary liability will provide a clear direction for prosecutors in this area of law, and I am happy to keep the matter under review. With that in mind, I invite the House to reject the motion.
Lucy Powell
Notwithstanding the Minister’s response, I think that everyone watching this debate can take away from Parliament the fact that there is a clear and unified view that the law has got it wrong and that the law needs to be put right. Judging by today’s debate, I suggest that there would be a parliamentary majority in favour of doing just that. In the meantime, I ask all who are watching—the prosecutors, the Appeal Court judges, the police and others—to start putting things right. We will consider, as a cross-party group, how to put further pressure on the Government and work with them to improve the situation.
I think that there is a clear consensus about proportionality, gangs versus groups, the CPS guidance—the initial interim guidance was problematic—and a wider homicide review. Critically, there is a broad consensus on the retrospective cases and the substantial injustice test, which would prevent unsafe convictions. It is critical that age, maturity, mental wellbeing and potential disabilities can be taken into account.
This has been an historic debate, and many people who are watching will feel its historic importance. We are not going to stop here. I hear what the Minister says, and I disagree with some of it. We will continue to press the Government to take further action.
Question put and agreed to.
Resolved,
That this House notes the Supreme Court judgment in the case of Jogee and Ruddock of February 2016 that the law on joint enterprise and parasitic accessory liability had been wrongly interpreted for more than 30 years; further notes that since that judgment, the number of cases brought under joint enterprise has remained unchanged; further notes that there have yet to be any successful appeals of cases from before February 2016; and calls on the Government to review the use of joint enterprise and to bring forward legislative proposals to clarify the law on joint enterprise.