Joint Enterprise (Significant Contribution) Bill

Debate between Barry Sheerman and Philip Davies

2nd reading
Friday 2nd February 2024 Commons Chamber

[Philip Davies (Shipley) (Con)]

First, let me congratulate the hon. Member for Liverpool, Riverside (Kim Johnson) on bringing this matter before the House. I believe she said at the start of her speech that she was as nervous as a kitten when she came out of the ballot with a high ranking. I do not think anybody would have recognised that, as she made a powerful case, and I commend her for that.

I rise to oppose the hon. Lady’s Bill and make the case that in many regards the law on joint enterprise does not go far enough. I will give some examples. I also want to address the point made by my hon. Friend the Member for North East Bedfordshire (Richard Fuller) that for those of us who believe that “life means life”, the cases that she mentioned undermined our argument; I do not think they do at all. When people say that life should mean life, they mean that they want honesty in sentencing and that the sentence handed down by the court is the one the person should serve. If we adopted that honesty in sentencing, many of the people that the hon. Lady mentioned in her speech would not be given a life sentence; they would be given a fixed tariff that they would be able to serve. Therefore, the honesty in sentencing that I want to see, as does my hon. Friend, judging by what he was saying, will help in the cases that the hon. Lady brought forward, because if we had that honesty in sentencing, we would not have these widespread life sentences being given out willy-nilly, which never in a million years mean life.

This is only a short Bill, but it has wide-ranging implications. It would repeal section 8 of the Accessories and Abettors Act 1861, which defines a secondary party. There are three types of joint enterprise. The first led to the creation of the 1861 Act in response to the case of the Crown v. Swindall and Osborne in 1846, which involved two cart drivers engaged in a race. One of them ran down and killed a pedestrian, but it was not known which cart and driver had perpetrated the fatal action. The court took the view that as both had equally encouraged each other in the race, it was irrelevant which of them had actually struck the man, as they were both participating in the race, so both were held jointly liable for the death; this is about a situation where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals. The case founded the principle that the parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention. Each individual assumes responsibility for the other members involved in the act. Therefore, a participant in an offence can be convicted even if the prosecution is unable to prove his or her precise role. It suffices that participation itself, whether as a principal offender or as a secondary party, can be proven and, as such, the principle of common purpose was codified in law in section 8 of the Accessories and Abettors Act 1861. The codified offence reads:

“Whosoever shall aid, abet, counsel, or procure the commission…shall be liable to be tried, indicted, and punished as a principal offender.”

The next landmark case, and second type of joint enterprise, cements the joint enterprise doctrine. In 1952, Derek Bentley was convicted for the shooting of a police officer. The actual murder was committed by an accomplice, Christopher Craig. Bentley was convicted after he said the famous words, “Let him have it,” which formed a key part of the evidence for the case against him, as he was deemed by the jury to be encouraging the defendant. Consequently, he was held jointly responsible for the murder. However, as we all know, the conviction was quashed on appeal.

In effect, that is an example of the principle of where D assists or encourages P to commit a single crime, which is the test used by the Crown Prosecution Service to proceed with a prosecution. Now, as we all know, for a jury to find someone guilty of a criminal offence, it must be satisfied that it is sure that the defendant both committed the crime, known as the actus reus, and had the requisite state of mind to carry out the crime, known as the mens rea.

An example is murder. To be convicted of murder, an offender must be shown both to have caused the victim’s death and to have either intended to kill or cause really serious harm. Another example is burglary. To be convicted of burglary under section 9(1) of the Theft Act 1968, the defendant must be found both to have entered a building as a trespasser and at the time intended to commit theft or grievous bodily harm.

Joint enterprise relates to secondary liability, meaning that a conviction hinges on the court’s determination of what the offender could have reasonably foreseen or anticipated, rather than what was explicitly agreed upon or even intended. For example, if two people planned a burglary together, and one, with the full knowledge of the other, took a gun and shot somebody during the course of that burglary, that would be seen as a joint enterprise, as the person without the gun could be deemed to have been able to reasonably foresee that the gun could be used to cause actual bodily harm to a third party.

This is where the third type of joint enterprise comes in, and it is of particular relevance to the Bill we are dealing with today. Until the 1980s, it seems that there were two strands. The first, referred to as the conduct element, requires that the accessory had encouraged or assisted the principal to commit the offence, and the act of assistance or encouragement may be infinitely varied. The second is the mental element, which requires that the accessory had the intention to assist or encourage the commission of the crime in the knowledge of any existing facts necessary for the principal’s act to be criminal. If the crime required a particular intent, the accessory must have intended to assist or encourage the principal to act with such intent.

In 1985, we had the case of the Crown v. Chan Wing-Siu, which created a specific subset of secondary liability known as parasitical accessory liability—the hon. Member for Liverpool, Riverside touched on these examples in her speech—which allowed not only the principal offender and accessory to be prosecuted for crime A, but also for a second crime, crime B, that the principal offender went on to commit. Here P and D participate together in one crime, crime A, and in the course of it P commits a second crime, crime B, which D had foreseen he might commit. This case lowered the burden of proof for the mental element of joint enterprise, as a conviction could now be made on the understanding that the defendant had only to foresee that the primary offender intended to commit the second crime.

Some people argue that a number of innocent victims who did not play a significant part in the offence could have been caught up in that definition, as the hon. Member for Liverpool, Riverside, said. That possibility has attracted particular attention in murder cases, for which a life sentence is mandatory. In the words of the Justice Committee,

“the mandatory life sentence for those convicted of murder removes much judicial discretion to hand down appropriate sentences to secondary participants who may have played a minor role and may have had no intention that a murder or grievous bodily harm should take place.”

Tim Moloney KC and Simon Natas, an expert in criminal law, argued for the abandonment of that principle, as it can lower the threshold for conviction in some cases. They suggested that the prosecution often finds it easier to demonstrate that the defendant foresaw the actions of the principal offender than to prove that the defendant intended for serious harm or death to occur. However, in its 2007 report on aspects of secondary liability, the Law Commission acknowledged that the principle was “severe”, but recommended its retention with certain safeguards.

Crucially, secondary liability is a common-law doctrine arising from the cases that I have mentioned. According to evidence given on 1 November 2011 to the Justice Committee by Jeremy Horder, professor of criminal law at King’s College London and a former law commissioner, the rules on complicity were originally

“drawn up to accommodate the notion that people have different roles in the commission of an offence”,

and those rules have evolved over the years. In one of its reports on complicity, called “Participating in Crime”, the Law Commission commented that

“At the core of the doctrine of secondary liability is the notion that D can and should be convicted of the offence that P commits even though D has only ‘aided, abetted, counselled or procured’ P to commit the offence”.

The Justice Committee’s 2010 report highlighted that the offence of joint enterprise plays a large part in getting convictions for who aid, abet, counsel or procure the commission of an offence, even though the principal offender does not carry out the intended act. Professor Graham Virgo highlighted the inconsistency in the courts’ approach to determining the mental state required for a finding of joint enterprise: while some cases only require the secondary participant to foresee the commission of the offence, in others, the secondary participant must apparently foresee both the criminal offender’s state of mind and the criminal act.

In 2011, before I was on the Justice Committee, it held an inquiry on the common-law doctrine of joint enterprise. That inquiry was prompted by concerns expressed to the Committee that the complexity and opacity of the doctrine could be the cause of injustice, whether to victims and their families or to defendants. That report was reviewed in a short follow-up report published by the Committee in 2014-15. The Committee considered the law, criticism of the doctrine, the use of joint enterprise, its application in cases of murder and gang-related or group violence, and whether the doctrine should be enshrined in statute. The Committee’s final recommendation was that the doctrine should be enshrined in legislation; it stated that

“The lack of clarity over the common law doctrine on joint enterprise is unacceptable for such an important aspect of the criminal law.”

In the year following the Justice Committee’s follow-up report, the Supreme Court ruled in the case of R v. Jogee, which the hon. Member for Liverpool, Riverside, mentioned, that the courts had taken a wrong turn in pursuing the concept of parasitic accessory liability. It handed down its judgment in February 2016, ruling that the previous interpretation of the law following the Chan Wing-Siu case was wrong, and that there should be no separate form of accessorial liability. It gave a correct example:

“D2 should not be liable for offence B unless he intended to assist or encourage D1 to offence B. Whether he did have such an intention or not will be for the jury to decide. The jury might consider D2’s foresight to be evidence of such an intent, but foresight would no longer be sufficient in and of itself.”

The judgment summarised as follows:

“The unanimous conclusion of the court is that Chan Wing-Siu and Powell and English did take a wrong turning…The correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability.”

Effectively, as a result of the Supreme Court’s verdict, common law has already made the bar for prosecution higher again, as the mental element needed for prosecution is now not only being able to foresee a crime, but foresee a crime as evidence of intent. The Bill is clearly being introduced on the basis that despite that judgment, common law still sets the bar too low for the prosecution and, in some cases, leads to people on the fringes of a group being prosecuted when they are too remote from the murder to be charged with it.

The Bill seeks to reform part of the definition of joint enterprise and to add in reference to making a “significant contribution”. The liability on the basis of joint enterprise will then read, “Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be at common law or by virtue of any Act passed or to be passed, shall, by making a significant contribution to its commission, be liable to be tried, indicted, and punished as a principal offender.”

The hon. Member for Liverpool, Riverside, mentioned the amendment tabled to the Criminal Justice Bill by, I think, the hon. Member for Bootle (Peter Dowd), which, in effect, mirrored the measures in her Bill. I think—she did not make this clear—the amendment was withdrawn in Committee, but she will no doubt correct me if I am wrong.

Reforming the legal definition of joint enterprise requires careful consideration of various factors, including principles of justice and fairness, and effectiveness in deterring criminal behaviour. Of course, the addition of “significant contribution” will be subject to legal interpretation. I asked the hon. Lady whether the leader of her party, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), agreed with her Bill. I was not entirely clear from her answer whether he did—I think she said that he said he would look at it. I ask because as a former Director of Public Prosecutions, he has been invited in the past to give evidence to Select Committees in this House about joint enterprise, and it is fair to say that he was characteristically equivocal about whether he supported it. I was not entirely clear on his position after reading the evidence he gave, although he went on to say, and this is relevant to the debate,

“there needs to be some caution if there is any amendment to it, but…one can understand the concerns on either side.”

When asked whether he would regard it as a serious limitation on his ability to successfully prosecute culpable people of very serious crimes if he did not have the current joint enterprise routes to take, he said,

“Yes, I think it would be,”

so we should bear that in mind.

The hon. Member for Liverpool, Riverside, mentioned the BBC drama “Common”, directed by the excellent Jimmy McGovern, who is a tremendous leader in his field. The programme follows 17-year-old Johnjo, who gives a lift to his cousin and his friends, only to find himself implicated in a stabbing. Johnjo sits in the car and does not even witness the stabbing, nor does he supply the knife. In fact, he apparently thought he was driving his cousin and friends to get a pizza.

The programme follows Johnjo and his family through the police and courts system and shows the devastating impact on the family. It was very powerful, as dramas are designed to be. The drama also shows the life-altering, axis-shifting impact on the victim’s family. Obviously, we should never forget that having a family member murdered is absolutely abhorrent, and I know that no one in the House would wish that on anyone; we have to take a balanced view on all these matters.

I take the view that joint enterprise works reasonably well at the moment. However, as I said at the start of my remarks, it has sometimes failed to get convictions where it should, rather than the other way around. Former Director of Public Prosecutions Alison Saunders said:

“In some cases, it’s not very clear because of the circumstances of the case exactly who did what, but if we know that everyone was participating in the crime then it helps us to be able to prosecute them and to put those facts before the court.”

She added:

“If you’re just standing there, we won’t prosecute you.”

The Crown Prosecution Service charging guidance provides further evidence of the approach for such crimes. It states:

“Where D’s role as an accessory is minor or peripheral and the offence in question is a minor offence, consider whether it is in the public interest to charge D at all. In particular, where a court is likely to impose only a nominal penalty on conviction a prosecution will often not be in the public interest.

Where D’s role as an accessory is minor or peripheral but the offence is a serious one, consider whether a less serious charge than that charged against the principal is more appropriate. For instance, where the offence attracts a mandatory or automatic or minimum sentence, the charge may be considered disproportionate to the culpability of D. In the vast majority of cases there is likely to be an appropriate lesser charge available. However, in the unlikely event that no lesser charge is available, prosecutors must weigh carefully the merits of proceeding with a charge for the serious offence, or not proceeding at all. The decision as to where the public interest lies will depend on the facts of each case.”

The guidance goes on to address the public interest test in more detail:

“Where there is sufficient evidence to prosecute, prosecutors must go on to consider whether a prosecution is required in the public interest… This approach applies to all cases involving secondary liability.”

I say to the hon. Member for Liverpool, Riverside, that the CPS guidance is already pretty robust in ensuring that people are not unduly prosecuted for crimes in which they played barely any role. According to the guidance, they certainly should not be prosecuted for the same offence as the principal person involved in the crime. That covers an awful lot of her concerns.

The more serious the offence, of course, the more likely it is that a prosecution is required. Parts b) and c) of paragraph 4.14 of the CPS code state that

“When assessing the seriousness of an offence, prosecutors should include in their consideration the suspect’s culpability and the harm caused”

to the victim; that

“Prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim’s family”;

and that

“The greater the suspect’s level of culpability, the more likely it is that a prosecution is required.”

There are clear examples in which a case is too complex and neither party is innocent, even if one party was substantially liable. One such example is the Crown v. Gnango, which involved the unlawful killing of Magda, a 26-year-old Polish care worker. Magda was on her way home from work in New Cross, south-east London, when she was shot through the head with a single bullet. She was caught in the crossfire between two gunmen in a car park. The two men were in a dispute and went there with the intention of killing each other. Scientific evidence allowed the police to identify the individual who fired the fatal shot. However, I thought—as did the court—that that was irrelevant, and that both men should be considered guilty because they both played their part in her death.

Another case involving a wholly different situation was considered—even if it was given only minimal weighting—by the judges in Crown v. Gnango, as it also applied the doctrine of joint enterprise: Mansell v. Herbert’s case. During the course of an attack on a house by a group of men, a woman was killed by a stone thrown by one of the group at another person. By a majority, it was decided that all were guilty of murder.

The Law Commission recommended retaining the Chan Wing-Siu principle owing to the availability of two defences. Under the first defence, a defendant can challenge a joint enterprise charge by demonstrating a fundamental difference between the agreed-upon criminal adventure and the committed crime, which I think covers much of what the hon. Lady was saying. The interpretation of that defence has led to complexity as courts grapple with determining what constitutes a fundamental difference.

The second defence relies on the defendant showing clear and unambiguous withdrawal from the venture before the crime was committed, which, again, I think is a very pertinent point. While the law about withdrawal is less complex, it is deemed overly restrictive. Moloney and Natas highlighted the case of R v. Mitchell, in which the defendant was convicted of murder, despite not having participated in a fatal assault, owing to her continued presence in the vicinity, suggesting her ongoing involvement in the crime. The definition proposed in the Bill will amend the defences applicable, and the defendant will now have to prove that his contribution to the offence was not significant.

I mentioned earlier that I would argue that we need some changes in the other direction, to secure more convictions in some cases. Jimmy McGovern might want to cover some of these cases in a drama to make the point as well, because as far as I am concerned, these cases are travesties of justice. Let us take the case of Donald Banfield. His wife and daughter were convicted of his 2001 murder, but their convictions were overturned despite its being accepted by everyone—including the lawyers acting for both of the accused—and recorded in the judgment in the case that Donald Banfield was murdered, that his death occurred between 11 and 16 May 2001, and that he was murdered either by both his wife and his daughter together or by one of them. Those facts are not disputed, yet these two women are free to walk around while that poor man is dead. It is outrageous that simply because neither will assist the prosecution with the case and tell them what really happened, nothing can be done to bring one or both of them to justice.

Then there was the murder of Kevin Patrick Lavelle in June 2004. I met the parents of Mr Lavelle, who have not only to live with the agony of losing their son but to face the ongoing suffering because no one has been convicted of his murder. In the Court of Appeal Civil Division judgment of 18 April 2011, Lord Justice Hooper said:

“On 24 June 2004 Mr. Lavelle was fatally injured in a fight that took place at ‘The Cricketers’ Arms’ public house in Middleton Road, Banbury, Oxfordshire. He died in the early hours of 25 June 2004. He was 29 years old.”

The judge continued:

“The cause of his death was aspiration of the contents of the stomach resulting from two head injuries to the deceased inflicted by a heavy steel weight lifting bar belonging to the deceased.

It was common ground that the deceased died in the course of a fight involving him, Mr Kirk and some, or all, of the first three respondents.

In late March 2009 following a coroner’s inquest a verdict of unlawful killing was entered.”

It seems very clear to everyone that Mr Lavelle was murdered, and that he was murdered by one of those people, yet no one has been successfully prosecuted for his murder and, tragically, unless something changes in the law—unless the law of joint enterprise is stiffened up—that will continue to be the case: no one will be brought to justice for that crime.

Finally, for now, there is the case of Andrew Jones, which the hon. Member for Liverpool, Riverside will know of very well because he was murdered in her home city of Liverpool. I also met the family of Mr Jones, and they too are devastated by the lack of a conviction in his case. I believe that at the inquest held in 2008, the Liverpool coroner, André Rebello, concluded that only one person was responsible for killing Andrew on the basis of the evidence that he had heard. Mr Rebello did not name that individual in court, but I understand—the hon. Lady will be able to correct me if I am wrong, because she will know far better than me—that her local newspaper did publicly name the killer, and said that if it was not them, they should sue the paper. It seems that none of the people who were there on the night are prepared to say who threw the fatal punch, although obviously one of them knows it was them and it is likely to have been witnessed by at least one other. Yet this has happened under the current legal joint enterprise framework, and it paints a very different picture from the one portrayed by the Bill’s supporters today.

When I asked the Crown Prosecution Service about these cases, Alison Saunders, then the Director of Public Prosecutions, provided a reply explaining the issues involved:

“Turning to the general points that you raise, each of the cases that you have highlighted have raised very different issues and demonstrate that the law regarding participation by a number of individuals raises complex challenges. As you will appreciate, any change to existing legislation remains a matter for Parliament. The principles underpinning the doctrine of joint enterprise have been developed over many years through court cases and in recent legislation such as the Serious Crime Act 2007. I am satisfied that these principles have been correctly applied in the cases”.

This is not a fault of the Crown Prosecution Service, but of the law. We should not forget that it is causing terrible heartache to families.

As it stands, joint enterprise acts as a deterrent. If this Bill was passed, it would water down the benefit of the current legal position when it comes to the deterrence of crime. Deterrence theory logically suggests that individuals refrain from committing crimes when the perceived costs or risks outweigh the potential benefits. In the context of joint enterprise, the threat of being held accountable for the actions of others may deter individuals from participating in those activities where joint liability could apply. This deterrence mechanism operates on the premise that individuals will prioritise self-preservation and avoid situations where they might be implicated in criminal conduct. Its very existence serves as a deterrent by increasing the perceived risks associated with criminal involvement. The prospect of facing severe legal consequences, including lengthy prison sentences for crimes committed by co-conspirators, can dissuade individuals from engaging in joint criminal enterprises.

Furthermore, supporters of joint enterprise, like me, would say that it fosters a sense of accountability among group members, as they are aware of the possible reper-cussions of their collective actions. High-profile cases where joint enterprise convictions have been upheld, such as those involving gang violence or organised crime, often highlight the punitive outcomes associated with joint enterprise convictions, which can act as a deterrent for potential offenders.

Another good example of the benefit of joint enterprise is epitomised in a leaflet produced in the home city of the hon. Member for Liverpool, Riverside by a wonderful lady called Jean Taylor from an organisation called Families Fighting for Justice. It gives out that leaflet to children and parents in Liverpool. I will not use it as a prop, because you would tell me off for doing so, Madam Deputy Speaker, but in this leaflet, which she hands out to schoolchildren in Liverpool, she makes clear the full repercussions of being involved in a crime that could be listed as joint enterprise. She gives an example of eight young men tried for murder. They were all at the scene of the crime, but the court could not tell which one had performed the murder. Because of joint enterprise, all eight were found guilty. The story shows that someone does not have to personally commit the crime with a gang or group to be found guilty of the crime. She puts in bold:

“This highlights the risks your child takes when being in a gang.”

I commend Jean Taylor and Families Fighting for Justice for all the work they have done on joint enterprise and to deter young people in her city from getting involved in gangs.

[Mr Sheerman]

The hon. Gentleman is making a very complex argument, and I have been listening to it. There is some interesting material in it. He has been speaking for more than half an hour, and some of us would like to contribute to this important debate. Many of us agree with exactly what he has been saying about the great need for radical reform in joint enterprise. I would have thought he could join us in supporting the Bill. Will he give the rest of us a chance to contribute to this important debate?

[Philip Davies]

I am slightly surprised by the hon. Gentleman’s intervention, because the Member proposing the Bill spoke for longer than I have spoken.

[Mr Sheerman]

It is her Bill.

[Philip Davies]

We have invented a new rule, it seems. I have not known it before, but the hon. Gentleman has been here longer than me. Apparently there is a rule that I was previously unaware of that the person who speaks first on the Bill gets to speak for the longest. I did not know that was a rule. It is obviously one that has just been invented. I would have thought he has been here long enough to understand that in this place we are supposed to have a debate. When the hon. Member for Liverpool, Riverside sets out her position, that means that people who disagree with her are entitled to set out their position, which might differ. I appreciate that the hon. Member for Huddersfield (Mr Sheerman) only likes to hear arguments with which he agrees. This will be a novel experience for him, as today he will have to force himself to sit through somebody giving an opinion with which he disagrees. I know he does not like that, but I am afraid it is tough.

[Mr Sheerman]

The hon. Gentleman pointed out that I have been in the House longer than him. I have always believed that this a Chamber where we have an honest, open and fair debate. I appeal to him to give others, such as me, a chance to make a short contribution. If he has another motive—not to make a good contribution to this debate but to talk the Bill out—that is another matter. Will he be clear whether he will allow some of the rest of us to make a contribution?

[Philip Davies]

I am going to allow everybody else to make a contribution to the debate. Unfortunately, the hon. Gentleman, through his pointless interventions, has delayed that from happening. I have zero intention of talking out the Bill. The Bill does not need to be talked out, because, as far as I can see, it is so flawed that it has no prospect of being passed anyway.

The hon. Gentleman and his colleagues will have plenty of time to make their case during the debate. I am simply making the alternative argument—the one against the Bill—and I am taking a similar amount of time to speak against the Bill as the hon. Member for Liverpool, Riverside spent making the case for the Bill. I do not think anybody could possibly see that as unreasonable —aside from the hon. Gentleman, who, as I said, does not like hearing arguments with which he disagrees.

Before I was interrupted, I was talking about Jean Taylor and Families Fighting for Justice. The hon. Gentleman would do well to speak to them and find out about their horrific experiences. I can tell him that Jean Taylor, unbelievably, lost her sister in 1998, her son in 2000 and her daughter in 2004, all as a result of acts of homicide, including acts of joint enterprise. She has campaigned for years to fight for victims and reduce crime. Her work on joint enterprise, as I have demonstrated, has been invaluable. I am sorry that the hon. Gentleman would rather that Jean Taylor, her work and her personal experience were not discussed in the debate, but I will certainly not make any apology for mentioning her work and her terrible experience, which I suspect is greater than his experience in this field. Jean Taylor has every right to have her views taken into account by this place.

With that—we could have got here a bit sooner if the hon. Gentleman had not pointlessly intervened—I will just say that I do not see the same problems in joint enterprise that others do. I actually think that joint enterprise as a concept has been effective in ensuring that our streets and communities are safer places than they otherwise would be. It has been effective in making sure that people are brought to account for some despicable crimes when otherwise they would not have been brought to account for them. If anything, as I set out with the number of cases I referred to earlier, the problem with the law on joint enterprise is that it is not working sufficiently—it is not drawn tightly enough—to ensure that it is used by the prosecution service in cases where, in my opinion, it should be used. It is not allowed to use the law on joint enterprise because it has been so restricted through common law, decisions by the Supreme Court and statute.

I urge the Government not to agree to any of the changes to joint enterprise sought by the hon. Member for Liverpool, Riverside, but to go away and see how we can use it to ensure that it better holds people to account and brings justice to the three families I mentioned. They have suffered from horrendous crimes and not had the closure of seeing somebody brought to justice, even though they know who was responsible. How must that it feel for people to know, even under the current law, that one of the two or three people responsible for the death of a family member still cannot be brought to account? I ask the Minister to resist the hon. Lady’s request and instead to look at how we can tighten the law. I think that would serve our communities better, so I oppose the Bill.

Mental Health Units (Use of Force) Bill

Debate between Barry Sheerman and Philip Davies

3rd reading: House of Commons
Friday 6th July 2018 Commons Chamber

[Philip Davies]

I am very grateful to the Minister for that positive intervention, and we look forward to seeing that guidance when it is brought forward.

On clause 5, I am also supportive of the focus on involving

“patients in the planning, development and delivery of care and treatment”.

I would have preferred to see that extended to the patient’s family, as was proposed by my hon. Friend the Member for Christchurch, because, as we know, mental illness does not affect just the patient; it can affect those near and dear to them, too. Again, the Minister stated on Report that she would seek to put this into statutory guidance and I hope she intends to follow through with that, because many family members would think it is very important.

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

As chair of the Westminster Commission on Autism, may I tell the hon. Gentleman that many people in the commission have a great interest in this Bill and support it? He has started off very reasonably in his remarks and I hope he will continue in that reasonable way, because the autism community want to see this Bill become law.

[Philip Davies]

Absolutely. The hon. Gentleman is not alone in that, and nor is the autism community—I want the Bill to become law, too. If he had not intervened on me, we could have completed this a bit sooner. I assure him that this Third Reading will complete very soon. I certainly do not intend to go on for long today and I do not think anyone else does. We want to complete this as quickly as possible and see the Bill on the statute book. I want to see that just as much as he does.

Clause 6 deals with recording the use of force and I am very supportive of having this in the Bill. It is right to record the carrying out of such practices on patients. The police have a system in place when using restraint as part of their role, so it is only right that medical staff should follow suit. I am advised by my local care trust that it does have some measures in place to record restraint of a patient, but this Bill will of course make it a legal requirement to do so, which is important and absolutely right. Again, I was disappointed that my amendment proposing that these records be added to the patient’s medical records was not accepted. As I have stated, restraint is considered to be a form of medical care and therefore should be documented in the patient’s medical notes. That would help people to know what reaction the patient had had when restraint had happened in the past. I hope the Minister will make sure that the statutory guidance can be used and updated to make sure that these things are added to people’s medical records at the same time. I hope she will be able to confirm that in the fullness of time, too.

On clause 6(5), the information listed to be included in the report is largely constructive. Where I feel it falls short is in insisting on adding what are referred to as “relevant characteristics”. As the hon. Member for Croydon North knows too well, I do not agree that that is necessary. I am of the opinion that including these “relevant characteristics” detailing race, sexuality, religion, marital status and so on is purely a politically correct gesture in order to be seen to be doing something to combat discrimination, when instead it causes the illusion of discrimination. There is a notion that this creates a more transparent mental health service, but that is not the case. For instance, the detailing of these “relevant characteristics” will extend only to the patient and not the staff. My amendment to say that staff members should be included in this was also supported by the hon. Gentleman, for which I am grateful. I hope that the Minister takes on board those points and will ensure that the statutory guidance she produces in conjunction with the Bill will set out that staff members’ “relevant characteristics” will be included alongside those of the patient.