Joint Enterprise

Afzal Khan Excerpts

Thursday 25th January 2018 Commons Chamber

[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.