Criminal Appeal (Amendment)

Barry Sheerman Excerpts

1st reading
Tuesday 6th September 2022 Commons Chamber

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

I beg to move,

That leave be given to bring in a Bill to amend the Criminal Appeal Act 1968 to allow leave to appeal an unspent conviction where there has been a material change in the law, notwithstanding the date of conviction; and for connected purposes.

I declare my interest as a co-chair of the all-party parliamentary group on miscarriages of justice and chair of the future of justice commission. Before I begin, I would like to pay tribute to the wonderful volunteers in JENGbA—the Joint Enterprise Not Guilty by Association group—for their tireless work campaigning against miscarriages of justice for so many years. It is great to have many of them in the House today, and I thank them for joining me yesterday for our launch event. I would also like to thank my good friend and colleague Glyn Maddocks, who has been unwavering in his determination to see these injustices put right. There is a great coalition of people campaigning for justice in this respect.

Way back in 1992, when I was shadow Home Secretary Roy Hattersley’s deputy, it was the time of the Guildford Four and the Maguire Seven. I became very much involved in those controversial cases, and since then fighting miscarriages of justice has been a core passion of mine. Through the APPG, we started a commission that produced a leading report on the Criminal Cases Review Commission. That report’s recommendations have been well received and are being used as far afield as Canada, and the Law Commission is now reviewing the real possibility test in this country.

For those who suffer a miscarriage of justice, the consequences are truly devasting, not only for them but for their family, their neighbours and their community. It is vital that we as parliamentarians do everything we can to ensure that quick and effective mechanisms are available to right wrongs when they occur in our criminal justice system. No criminal justice system is perfect. One cause of miscarriages of justice is the legal doctrine of joint enterprise. Joint enterprise is a wide legal doctrine, so I will focus on one aspect of it: parasitic accessorial liability, or PAL.

PAL arises where two or more people commit a criminal offence, and during the commission of this crime another individual goes on to commit a further, usually more serious, offence. All those who committed the first crime will also be liable for the second crime if they foresaw the possibility that the offence would occur. It was formulated in 1985 by the Privy Council and brought into English law by the House of Lords in 1999. It has since received much criticism from legal academics and practitioners for being both unclear and unfair.

One of the reasons for this criticism is that the doctrine has resulted in the anomaly whereby it is easier to convict the accessory than the individual who physically committed the crime. In addition, the law has disproportionately impacted on marginalised people: for example, young, black, working-class men are severely over-represented in convictions under joint enterprise according to a study by Manchester Metropolitan University. JENGbA says that around 80% of the people who contact them are black or minority ethnic, and almost all are working class.

Additionally, it is often individuals on the autism spectrum who are impacted by joint enterprise. I am closely involved in the Westminster Commission on Autism, so this aspect of joint enterprise is of particular concern to me. The way in which the criminal justice system has dealt with autistic people in joint enterprise cases is nothing short of a travesty. Names such as Alex Henry and Osime Brown will be familiar to anyone who has taken an interest in this area. Alex’s sister Charlotte is here today, I believe. She has been a fearless campaigner for justice. Autistic individuals, because of their condition, often do not have the cognitive ability to foresee a crime taking place and so are particularly vulnerable, yet time and again they have been convicted using this law.

In part because of the criticisms, in 2016 the Supreme Court handed down a judgment in the case of Jogee. In doing so, the Court departed from precedent, stating that the law relating to joint enterprise had taken a wrong turn. This meant that people could no longer be prosecuted for the possibility of foreseeing a crime taking place, but only if they intended to assist in committing it. That was a genuine moment of legal history. The Supreme Court recognised that a colossal error had been made and that many people had been prosecuted under an incorrect interpretation of the law.

The House would expect that after such a significant change, there would be a wave of successful appeals, but that has not been the case. By last year, only two out of 103 appeals made with reference to Jogee had succeeded. In part, that is because of the restrictive approach used by the courts in out-of-time appeals. Leave to appeal in these types of cases is granted only if the applicant can demonstrate that they have suffered a “substantial injustice” because of the change in the law, and the current interpretation of substantial injustice is uncertain at best.

Courts have identified a changing range of factors that applicants have to meet to demonstrate that they have suffered a substantial injustice. At present, it seems that the definition of substantial injustice in joint enterprise cases is be found in a notorious case, also from 2016, in which the court decided that appellants would have to prove that they would have been found not guilty in their trial. For example, for murder cases, someone would have to satisfy the Court of Appeal that they would not have been convicted of murder. This test is higher than the mere “safety” required for an in-time appeal, and even higher still than a “significant possibility” that a jury would acquit the appellant.

When the proportion of miscarriages of justice is so high in this area of law—it is reckoned that 1,000 people, mainly young men, are in prison as a result of this law—I fail to see the policy justification for dealing in absolutes as the Court of Appeal has done. I understand the need for finality in criminal appeals, but it cannot come at the cost of the right to access a court for a fair retrial. At present, the process places a disproportionate burden on the appellant.

In my view, 30 years of erroneously applying the common law should amount to a substantial injustice, and the people who have been convicted under this law deserve to have their appeals heard. The courts have failed to provide a mechanism for people who have been convicted under the pre-Jogee law to appeal their convictions, and we cannot continue to wait for the courts to assist these people. It is time, and it is right that we as parliamentarians act to right this injustice.

That brings me quickly on to the substance of the Bill, which would amend the Criminal Appeal Act 1968 by inserting a new subsection in section 18. It would give leave to appeal against a criminal conviction for an offence that no longer exists, or if the offence has changed in a way that is material to the applicant’s conviction. That includes the availability of a defence that did not previously exist.

As I have said, a key principle in criminal appeals is finality. I accept that there are legitimate policy reasons for restricting appeals: I agree that we cannot have appeal after appeal; that to maintain trust in the criminal justice system, cases must be settled; and that unfettered appeals must not be permitted. Because of that, my Bill includes a clause that would create conditions for using the new avenue of appeal. The application must be served before the conviction is spent or there must be some other compelling reason why it is in the interests of justice to allow the appeal.

The Bill, if passed, would permit those convicted under the pre-Jogee joint enterprise law to appeal their convictions without having to pass the high bar set by the substantial injustice test. It would also remove the 28-day time limit for change of law cases if they met those conditions.

Although you might not think so, Madam Deputy Speaker, this is a simple Bill that would have a great impact on a large number of people. Because the Ministry of Justice does not hold figures on those convicted under joint enterprise, we do not know how many people that would be, but from estimates by JENGbA and others, we know it is in the thousands. If passed, my Bill will help to provide them with the access to justice that we all deserve in a democratic society. Strengthening our justice system does not just benefit those who interact with it; it makes our entire society stronger and ensures protection for every one of us, whenever we may need it.

Today, I hope that all right hon. and hon. Members will join me in fixing a major flaw in our justice system, making amends and taking a big step to guarantee the right to justice for every citizen. The law was wrong for 30 years and it is now time for us to give the courts the chance to put it right. I commend my Bill to the House.

Question put and agreed to.

Ordered,

That Mr Barry Sheerman, Sir Robert Neill, Kim Johnson, Mr Andrew Mitchell, Yasmin Qureshi, Julie Elliott, Janet Daby, Dan Jarvis, Hilary Benn, Jim Shannon, Valerie Vaz and Kim Leadbeater present the Bill.

Mr Barry Sheerman accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 20 January 2023, and to be printed (Bill 151).