Joint Enterprise (Significant Contribution) Bill

Debate between Barry Sheerman and Gareth Bacon

2nd reading
Friday 2nd February 2024 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Gareth Bacon)]

I thank the hon. Member for Liverpool, Riverside (Kim Johnson) for introducing the Bill. I know the issue is of significant interest to her and indeed to other Members of the House. However, I must say at the outset that the Government are unable to support the Bill in its current form.

I will explain our reasons for that later in my speech, but let me begin by saying that the Government understand and recognise the importance of the law of joint enterprise and the consequences that result from convictions for such crimes. We recognise that they can be extremely difficult for defendants and their families to accept, but equally the impact of any crime is devastating for the victim and their family, particularly when the crime is murder. For any Government, there is a need to ensure that any perpetrator who commits a crime, or aids, abets, encourages or assists in one, is brought to justice. Victims and their families especially have an expectation that all those involved in that crime, particularly a crime as serious as murder, will be prosecuted.

We have heard powerful and sincere speeches from both sides of the House, and I pay tribute not only to the hon. Member for Liverpool, Riverside, but to my hon. Friend the Member for Shipley (Philip Davies), the hon. Member for Huddersfield (Mr Sheerman), my hon. Friend the Member for Aylesbury (Rob Butler), the hon. Member for Brent Central (Dawn Butler), the right hon. Member for Islington North (Jeremy Corbyn), and the hon. Member for Lewisham East (Janet Daby). For the benefit of the House, I will give further explanation of the law on joint enterprise and how it works in practice, and then I will outline why the Government are not supportive of the Bill today.

We have all read the headlines about joint enterprise cases—the individuals who are charged and convicted of crimes, despite stating that they did not commit them or were not there when the crime occurred. However, more often than not, those headlines reduce to a few sentences extremely complex cases involving a significant body of evidence that needs to be considered in detail in order to truly understand what happened. That is rightly the job of the independent courts.

As many right hon. and hon. Members have mentioned, joint enterprise is a complex area of law. It is a common-law doctrine that can be applied to most offences, and generally applies where a person assists or encourages another to commit a crime. The principles that apply to joint enterprise cases remain the same whatever the offence, and apply equally to planned and spontaneous acts of joint enterprise.

Where two or more individuals are involved in committing a crime, the parties to the offence may be classed as principals or secondary parties. Each offence will have at least one principal, although it is not always possible or necessary to identify who the principals are. A principal is the perpetrator of the substantive offence, and a secondary party is one who aids, abets, counsels, procures—more commonly known as assists—or encourages a person to commit the substantive offence without being the principal offender.

It is a fundamental principle of the criminal law that an accessory to a criminal offence can be tried, convicted and punished of an offence in the same way as the principal, even if it was not their hands that personally struck the blow, ransacked the house, smuggled the drugs or forged the cheque. Where they encouraged or assisted those physical acts and had the necessary intention, the law says that it is right that they too are found guilty. Similarly, an accessory to a crime shares culpability precisely because they encouraged or assisted the offence.

No one doubts that if the principal and the accessory are engaged together in, for example, the armed robbery of a bank, which was mentioned, the accessory who keeps guard outside is as guilty of the robbery as the principal who enters with a shotgun and extracts the money from the staff by threat of violence. Nor does anyone doubt that the same principle can apply when, as sometimes happens, the accessory is nowhere near the scene of the crime when it eventually transpires. The accessory who funded the bank robbery or provided the gun is as guilty as those at the scene.

Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that they participated in the crime as either one or the other. That said, the threshold for anyone to be prosecuted and found guilty under the joint enterprise principle is very high. They must intend to assist or encourage the commission of the crime, and therefore must know of the existing fact necessary to make it criminal. If the crime requires the principal to have a particular intent, the secondary must intend to assist or encourage the principal to act with that intent.

[Mr Sheerman]

Will the Minister give way on that point?

[Gareth Bacon]

With the greatest respect to the hon. Gentleman, I am not going to take interventions. There are other Bills that need to be debated, and it is important that the Government’s case is put. We have had a lengthy debate. Section 8 of the Accessories and Abettors Act 1861 provides that a secondary party can be prosecuted and punished for the indictable offence as if they were the principal offender. That is the provision that the Bill seeks to amend.

Until the judgment given in the case of R v. Jogee, the courts had identified three ways in which liability for an offence committed with others might arise. The first is where two or more people join in committing a single crime in circumstances where they are, in effect, all joint principals—for example, where a group goes on a shoplifting spree, taking goods out of shops without payment. In such a scenario, those involved are joint principals. The second is where a person encourages another to commit a single crime; an example would be one person providing another with a weapon, so that they can use it in a robbery. The person providing the gun would be liable as an accomplice. The third is where two or more individuals participate together in a crime and, in the course of committing that crime, such as a robbery, one member of the group commits a second crime—for example, he shoots the security guard. The other members of the group may be prosecuted as accessories if they foresaw that the person with the gun was likely to use it. This type of joint enterprise is known as parasitic accessory liability.

Parasitic accessory liability was crystallised in the case of R v. Powell, which involved two defendants who went to a drug dealer’s home to buy cannabis, during which one of the defendants shot the drug dealer. Both were convicted of murder; it was held that the other defendant had foreseen that the other party might use the gun, and he was therefore convicted as an accessory. That case adopted the reasoning set out in the case of R v. Chan Wing-Siu, which involved three defendants who broke into a victim’s flat, with one defendant stabbing the victim to death and wounding his wife. All three defendants were convicted of murder, which resulted in the principle that if two or more people set out to commit an offence and, in the course of it, one of them commits another offence, the second person is guilty as an accessory to the latter crime even if he did not necessarily intend the commission of that offence; it is enough that he foresaw it as a possibility. The precedent was therefore established that a secondary party to a joint enterprise would be deemed to have intended to encourage or assist every one of the principal’s offences.

However, as we have heard, the case law moved away from that principle as a result of the Supreme Court’s decision in R v. Jogee. Ameen Jogee was initially convicted on the principle of parasitic accessory liability for the murder of former Leicestershire police officer Paul Fyfe in 2011. The Crown court heard at the time that Mr Jogee had “egged on” his friend Mohammed Hirsi, who stabbed Mr Fyfe in the heart. Mr Jogee argued that he was not inside the house when the incident took place and could not have foreseen what his friend intended to do. He was convicted of murder, with a minimum custodial sentence of 20 years.

Mr Jogee appealed against his conviction for murder to the Court of Appeal. Following this, in October 2015, he asked the Supreme Court to review the doctrine of joint enterprise and to hold that the court took a wrong turn in Chan Wing-Siu and the cases that followed it. Mr Jogee argued that the Chan Wing-Siu decision was based on a flawed reading of earlier authorities and questionable policy arguments. The respondents disputed those propositions and argued that even if the Supreme Court were persuaded that the courts took a wrong turn, it would be for the legislature to decide whether to change the law, since the law as laid down in Chan Wing-Siu had been in place for 30 years. The Supreme Court handed down its decision in Mr Jogee’s case in February 2016.

[Mr Sheerman]

Will the Minister give way on that point?

[Gareth Bacon]

I have already said to the hon. Gentleman that I am not going to give way.

[Mr Sheerman]

On a point of order, Mr Deputy Speaker. What is going on? There is a feeling at the moment that junior Ministers will not take interventions, which is against the whole spirit of a Friday open debate. What is the matter? All I want to know is whether the Minister is content with the joint enterprise situation at the moment. Will he please tell the House that?