Joint Enterprise (Significant Contribution) Bill

Gareth Bacon Excerpts

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?

--- Later in debate ---

[Gareth Bacon]

With the greatest respect to the hon. Gentleman, I gave my reasons earlier. It is not because I am trying to curtail this debate; it is because other debates are due to take place after this one. In answer to his substantive question, I am outlining the Government’s position on joint enterprise.

In considering Mr Jogee’s case, the Supreme Court considered the issue of parasitic accessory liability and concluded that a person should not be guilty merely for foreseeing that an accomplice might commit a second offence during the course of the original planned crime. It considered that the law should revert to the well-established rule that exists in relation to other types of joint enterprise offending—that is, that a person can be guilty of offences committed by other members of the group only if he or she intentionally encouraged or assisted those offences to be committed. Where somebody participated in an offence that involved a clear risk of harm, and death resulted, although with no intention that it should happen, he or she could still be convicted of manslaughter.

This led the Supreme Court to conclude that the law had taken a wrong turn 30 years earlier, by equating foresight with the intent to assist. The correct approach was to treat foresight as evidence of intent to assist in the crime. Following the decision, Mr Jogee was cleared of murder by the Court, but retried and found guilty of manslaughter. His previous sentence of life imprisonment with a minimum of 20 years was replaced by a fixed term of 12 years.

As a result of the decision reached in Jogee, parasitic accessory liability no longer applies as a basis for criminal liability. However, this narrow change to the law on joint enterprise has been widely misunderstood as meaning that all convictions under joint enterprise would now be found not guilty on appeal. In circumstances in which parasitic accessory liability previously applied, the principles applicable to all cases of secondary liability now apply.

The decision in Jogee effectively resolved what the Government view as the most troubling aspect of the joint enterprise law. The Government are aware that the ruling in Jogee was initially welcomed by the academic world and families of convicted offenders, but the change in the law also appears to have been widely misinterpreted as applying to joint enterprise overall, when the change is much more limited—that is, the change relates only to cases involving parasitic accessory liability. This has obviously led to defendants’ families feeling further disappointment that the decision in Jogee has had little or no impact on those serving time in prison for such crimes.

Let me turn now to appeals, which serve as an important corrective function for individuals, whether to correct a miscarriage of justice, such as the conviction of someone who is factually innocent, or to correct a legal error, such as a harsher sentence than is legally permissible having been imposed. They also serve important public functions in ensuring that the criminal law is interpreted and applied consistently and predictably.

I know that the substantive injustice test has previously been raised in the House in connection with joint enterprise—specifically, in respect of whether legislative change affects the validity of a conviction under the previous law. The Law Commission is considering that issue as part of its full and extensive review of the law in relation to criminal appeals and procedure.

On 27 July 2023, the Law Commission published an issues paper seeking evidence on whether reform to the law on appeals in criminal cases, including the tests applied by the Court of Appeal and the Criminal Cases Review Commission, is necessary. This will help to inform the wider consultation paper on appeals law that is planned for publication later this year. The Law Commission intends to produce a final report with recommendations in 2025, and the Government will consider them.

It is worth making the point that before anyone is charged with a crime, whether as part of a joint enterprise or not, the Crown Prosecution Service will consider prosecuting only if the case satisfies the full code test set out in the code for Crown prosecutors. That test has two stages: the first is the requirement for evidential sufficiency, and the second involves the consideration of the public interest.

At the evidential stage, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. That means that an objective, impartial and reasonable jury—or bench of magistrates, or judge sitting alone—properly directed and acting in accordance with the law, is more likely than not to convict. It is an objective test based on the prosecutor’s assessment of the evidence, including any information that he or she has about the defence. A case that does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. If the evidential stage is satisfied, the prosecutors must then go on to consider the second stage and whether a full prosecution is in the public interest.

Having set out the background, let me move on to the Bill before us, the purpose of which is to amend section 8 of the Accessories and Abettors Act 1861. The amendment to section 8 appears to propose that for a person to be

“tried, indicted, and punished as a principal Offender”,

they must

“aid, abet, counsel, or procure”

the commission of the offence by

“making a significant contribution to”

the commission of an indictable offence.

The Government note that the declared purpose of the Bill is to better reflect a defendant’s actual contribution to a crime where this is committed as part of a joint enterprise. We also note that the proposed change to section 8 retains both its application to indictable only offences and its territorial extent, which is to say that the Bill proposes that any amendment to section 8 will continue to apply in England, Wales and Northern Ireland.

The Government are unable to support the Bill because it is technically flawed, and the overall impacts of such a change will need very careful consideration. As I said, joint enterprise is an extremely complex area of law—

[John McDonnell]

On a point of order, Mr Deputy Speaker. I do not wish to drag you into the debate; I am simply requesting a procedural clarification.

The Minister has just said that the Government are unable to support the Bill in its current form. In other words, they are not supporting it today. It is procedurally correct, is it not, that the Government could allow Second Reading and then delay any Committee proceedings until after the consultation on the Law Commission’s proposals and its examination of the issue overall, and amendments could then be tabled? If the Government fail to do that, it is difficult to see—unless they are committing themselves to introducing legislation—whether there is a serious or imminent proposal to reform the law in this instance.

I just wish to clarify that, because a great many people watching the debate will be confused by the process that we are going through. The opportunity is still there for the Government to allow the Bill’s Second Reading, thus bringing forward a reform that they may well wish to support at a later stage.

[Mr Deputy Speaker (Mr Nigel Evans)]

The case that the right hon. Gentleman has just stated is correct procedurally, but after the Minister has finished his speech I will call Kim Johnson, with the leave of the House, to see what the Member in charge of the Bill wishes to do.

[Gareth Bacon]

Thank you, Mr Deputy Speaker.

Section 8 of the 1861 Act is intrinsically linked with other inchoate offences such as those specified in sections 44 to 46 of the Serious Crime Act 2007: intentionally encouraging or assisting an offence, encouraging or assisting an offence believing it will be committed, and encouraging or assisting offences believing one or more will be committed. It is also linked to section 44(1) of the Magistrates’ Court Act 1980, which makes similar provision to that contained in section 8 of the 1861 Act, but in relation to summary only and triable either way offences.

Of key concern, however, is the fact that the proposed change to section 8 would place a requirement on the prosecution to identify the precise nature of a defendant’s role in aiding, abetting, procuring or counselling the commission of the crime committed in order to prove that the defendant had made a “significant contribution” —a threshold that does not currently need to be met. This change could lead to difficulties in securing a conviction and therefore bringing offenders to justice, even when there is significant evidence that the defendants did participate in the crime, simply owing to evidential difficulties in trying to establish the precise role that each party played—that is to say, whether they were a principal offender or an accessory—and how much weight should be given to those roles in terms of their “significant contribution”, which is not defined.

It is also unclear whether this change was actually intended, as the Government believe that the stated intention of the Bill is to clarify, and not to amend, the law on secondary liability. An additional concern is that no definition has been provided on what is to be determined by “significant contribution”. Without such a definition, that would mean that a perpetrator’s contribution to an offence could be determined differently, with the bar being either lower or higher depending on the assessment undertaken by the specific jury in question. In effect, there may be no real parity in such assessments, which in turn could lead to appeals on the basis of how a significant contribution to a crime has been assessed when compared with other such cases. That could result in an incoherent framework and would jeopardise the certainty of the law.

I am conscious of the time, Mr Deputy Speaker. I thank the hon. Member for Liverpool, Riverside again for her Bill, but the Government must oppose it for the reasons that I have outlined.