Joint Enterprise

Debate between Andrew Mitchell and Ruth Cadbury

Thursday 25th January 2018 Commons Chamber

[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.