Joint Enterprise

David Lammy Excerpts

Thursday 25th January 2018 Commons Chamber

[Mr David Lammy (Tottenham) (Lab)]

Does my hon. Friend recognise that where 14, 16 and 19-year-olds have gone to prison for significant periods of time when it is absolutely clear to the community that they have not committed murder, as happened in her community of Moss Side, it undermines the black community’s sense of justice, fewer people co-operate with the police, fewer people have faith in the justice system and it undermines all she is attempting to do?

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Order. I hope to give everybody 10 minutes. If Members intervene, the danger is that I will have to drop the time limit immediately.

--- Later in debate ---

[Mr David Lammy (Tottenham) (Lab)]

I congratulate my hon. Friend the Member for Manchester Central (Lucy Powell) on securing this debate and on the way in which she has gone about representing her constituents, many of whom I met a few weeks ago, who are caught up in this terrible nightmare. I pay tribute to the right hon. Member for Sutton Coldfield (Mr Mitchell), who has championed and taken up many of these issues consistently in this House over the past few years.

The doctrine of joint enterprise is a common law doctrine very much derived from judicial decisions, not legislation passed by Parliament. As has been said, it is now time for Parliament to reflect hard on where we have arrived at and on the fact that this debate is essentially about juveniles—people as young as 14 who are looking at spending significant stretches of their lives behind bars. This debate is about what we have come to describe as “gangs”. We do not use the word “gangs” when we are talking about the Bullingdon club; we do when we are talking about black youth in constituencies such as mine or white youth in constituencies such as Salford in north-west England.

That is why it is so important that we look hard at a doctrine that stretches back to 1846, when two cart drivers engaged in a race that killed a pedestrian. Throughout the 20th century, further court judgments clarified the joint enterprise doctrine in the case of murder. Even if there is no plan to murder and one party kills while carrying out a plan to do something else—for example, robbery—the other participants can still be found guilty. The use of that doctrine has been criticised by academics, by legal practitioners and by the Justice Committee. I want to associate myself with all those remarks and, in particular, with the fantastic work of JENGbA over the past few years.

Following the review that I did for the Government, it is important that we recognise that in black, and particularly Muslim, communities, there is tremendous concern about our judiciary. In those communities, the judiciary do not appear to be independent and justice is not perceived to be blind. That is why I was so disappointed that, when I proposed a target in my review, it was roundly rejected by our senior judiciary and by the Government, although a target is not prescriptive but merely a goal.

I am concerned that the independence that our judiciary say they have, and rightly have in our democracy, means that they are hugely detached from the communities that we are talking about. They do not have to defend their actions in Tottenham town hall or Manchester city hall. They are never present in those communities. They do not have the kinds of surgeries that we do. It is really important that they reflect hard on the common law tradition. In other jurisdictions such as Canada, Australia and New Zealand, there has been progress on proximity and diversity in relation to the judiciary, but in this country we appear to be stuck. On this occasion, it is absolutely clear that the common law makes no common sense. That is why I referenced joint enterprise in relation to black, Asian and minority ethnic communities in my review.

The offence of joint enterprise has long been justified, by Ministers of both Conservative and Labour hue, on the basis that it sends a wider social message. I will not quote the right hon. Member for Epsom and Ewell (Chris Grayling), a former Justice Secretary—hon. Members will recognise that I do not need to; they will know what his views would be—but let me quote Lord Falconer. He said of joint enterprise in 2010:

“The message that the law is sending out is that we are very willing to see people convicted if they are a part of gang violence—and that violence ends in somebody’s death. Is it unfair? Well, what you’ve got to decide is not ‘does the system lead to people being wrongly convicted?’ I think the real question is ‘do you want a law…as draconian as our law is, which says juries can convict even if you are quite a peripheral member of the gang which killed?’”

I want to say that the former Lord Chancellor Lord Falconer got it wrong, and the perception in the sort of communities we are talking about is that this is very wrong. Joint enterprise raises significant issues of miscarriages of justice, which must command the attention of this House and of our wider justice system.

[Afzal Khan (Manchester, Gorton) (Lab)]

I want to put on the record my thanks to my right hon. Friend for the work he has done with his review. I also thank my hon. Friend the Member for Manchester Central (Lucy Powell), who represents a neighbouring constituency.

This issue has also touched the lives of my constituents. Yesterday, I spoke to Louise Otway, whose son was sentenced to 30 years under joint enterprise. I am concerned by two issues, as a former serving police officer in the Greater Manchester police and as a practising solicitor. My first concern is that, although the Supreme Court has said that the law has taken the wrong turn, nothing has been done to put that right, which is not acceptable. Secondly, as is becoming clear from listening to my hon. Friends, BME and working-class defendants are over-represented, with the use of gang narratives playing into the stereotyping and targeting of these groups. Does my right hon. Friend agree that it is essential we have greater transparency, through the official statistics, about the make-up of joint enterprise defendants?

[Mr Lammy]

My hon. Friend’s point is exactly right. The issue is: what would happen if the principal’s intent was graver than the accessory’s? In all the cases that have been mentioned, that is absolutely the case. What would happen if the outcome of whatever act the principal carries out is far graver than the accessory was aware of? Getting into questions about the foresight and intent of a young adult is next to impossible, given all that we know in modern times about child psychology, so it is absolutely right that young people should not be convicted in those cases.

[Robert Neill]

The right hon. Gentleman is making a powerful case and perhaps I can offer him some support. As evidence to the Justice Committee has made clear, practitioners feel it would be of greater assistance to juries deciding on these issues if there were a statutory framework within which they could work. We have done that with the Theft Act 1968, which replaced out-of-date common law arrangements. Ironically, in the Jogee case, the trial judge of first instance was this country’s first black woman High Court judge, but she was obliged to follow the rules of precedent. Had there been a revision of them by statute, the situation might have been different.

[Mr Lammy]

The hon. Gentleman is right. He makes the case that it is now for the House really to get thinking about these matters.

As the hon. Gentleman will be aware, an accessory party can be liable under joint enterprise, even if they withdraw from a group before any crime is committed. Many hon. Members will think of the example of a group of students in a playground or a park, where someone talks about teaching someone a lesson—in fact, we might recall such an occasion from our own lives when we were younger—and one of those individuals thinks that teaching a lesson involves significant violence, assault or even something ending in murder, and just because the group had discussed teaching someone a lesson, someone else may end up in prison for murder.

We have been in the House when or know of times when Members have picked up the Mace—I am thinking of the former leader of the SNP and Lord Heseltine. If you picked up the Mace and an older Member thought it was coming towards them and died from a heart attack, you would be in serious trouble. However, if you had discussed it with your colleagues beforehand, they too would be in serious trouble. A whole political party—on that occasion, the SNP—might have been heading towards that. That shows how ridiculous this situation has become, and it is why we need an urgent review.

We are having this debate after politicians have said, “We have to crack down on gangs and that is why we are doing this.” But has it worked? Knife crime is rising: in England and Wales, there were 36,998 knife crime offences in the 12 months to the end of June. Hospital admissions as a result of knife crime and the use of sharp objects are rising. We have a real problem in London, which the Mayor of London is trying to deal with. Has this therefore had the effect that people suggested it would? It has not. It has not had that effect because it is not minors driving knife crime—it is serious organised criminals: gangsters and kingpins. They are driving the trafficking of cocaine and drugs, which is leading to the turf wars that are making some of the communities we represent more violent. The 14, 15 and 16-year-olds or those in their early-20s locked up for the offence of joint enterprise do not know anything about getting a tonne of cocaine from Bolivia or Colombia. We must go after the gangsters, but we are hearing very little about that.

The Ministry of Justice’s own research on joint enterprise convictions understands the psychology of young people. It understands the need of teenagers and juveniles to belong to a group. It understands that they have a predisposition towards risk, seeking excitement and reckless behaviour. It understands their inability to inhibit their impulses and the fact that they have less self-control. All of us in the House who are raising or have raised teenagers will recognise all those characteristics. Are we really going to throw young men—black and white—into prison because they are young?

I have two boys at home. They navigate the streets of north London on their way to school and one in particular goes through some high knife-crime areas. I am raising boys who would never ever take a knife out of the house and use it on anybody else—I am absolutely sure about that—but can I say, if something is going on in a park, that one of them might not drift towards the action? Hand on heart, as a father, I cannot say that. I do not ever want to have to visit one of my own children in prison. None of us should want ever to have to visit young people in prison. None of us should want that waste. None of us should want those criminal records. It is time that this House acted.