Joint Enterprise

Debate between Andrew Mitchell and Yasmin Qureshi

Thursday 25th January 2018 Commons Chamber

[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.