Joint Enterprise

Andy Slaughter Excerpts

Thursday 25th January 2018 Commons Chamber

[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.

[Andy Slaughter (Hammersmith) (Lab)]

Will my hon. Friend give way?

--- Later in debate ---

[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.