Joint Enterprise

Jim Fitzpatrick Excerpts

Thursday 25th January 2018 Commons Chamber

[Stephen Pound (Ealing North) (Lab)]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill). I take it from his words and from the emotion behind them that the door to the Justice Committee is now open and that at some future stage it will consider this matter, because I think that is one of the loci from which we can seek to bring an end to this horrendous, disproportionate nightmare, which is a stain on British jurisprudence. In this appalling situation, 40 seconds can lead to 12 years in prison, and somebody who just happens to be within a group of people can find themselves facing the best part of their young life locked away for something they could not stop, even if they wanted to.

It is often said that the House is at its worst when we all agree unanimously, but I think that this is the exception to that rule. Tribute has already been paid to JENGbA, Charlotte Henry, Gloria Morrison and all the other campaigners. I would like to think that even without JENGbA’s informed and passionate prodding, people such as my hon. Friend the Member for Manchester Central (Lucy Powell) and the right hon. Member for Sutton Coldfield (Mr Mitchell) would have brought the matter forward, because this is a stain on the British legal system. The Prime Minister has referred to burning injustice. Well, this injustice is burning so strongly and brightly that the smoke is almost choking us, and we cannot see the sense and sanity of the law for the obfuscation that has come from this ridiculous piece of law.

This law was originally introduced to deal with duelling. I appreciate that duelling used to be a pastime of Members of this House, but how can a provision on aiding, assisting or encouraging—or even for parasitic accessory liability—a couple of people duelling in Hyde Park a couple hundred years ago somehow lead to my constituent Alex Henry, a man with a four-year-old child whom he has hardly seen, facing 12 years in prison for what happened in 40 seconds when he was with a group of young men? How on earth can we move from that piece of medieval law to the present situation in which people are suffering?

I suggest that the reason something happened in this area of jurisprudence in the 1990s comes down to one word. It has already been mentioned by the right hon. Member for Sutton Coldfield, who I must forgive for destroying my stereotype of stern, unbending Conservatism, because he has shown himself to be humane, decent and informed on this, for which I pay him full tribute. The word he used was “gang”. In the 1990s, there was an assumption that groups of young people—and young black people—were a threat and that they were somehow out to destroy society: they were corrosive, their music was unbearable, their accents incomprehensible, their clothes unforgivable and their activities incomprehensible to most people. I like to think that those in the senior echelons of the law are well versed in street culture, but on this occasion I think they saw gangs as a threat. They somehow transposed groups to gangs. This piece of draconian, lead-like law was brought in to crush a threat that did not actually exist. Yes, of course there is street crime and violence, but it is not confined to one group of people. Young people such as Kenneth Alexander and dear Alex Henry, who were simply out with friends, now face the life that is ahead of them because of how the law works.

There are few tasks more melancholy that visiting a constituent in prison, and one of the frustrations is the inability to do much more than sympathise and show that they are not forgotten. I think that JENGbA’s work is so crucial because it shows that these people have not been forgotten. Would it be inconvenient for the judicial system to review thousands of cases? Damn right it will be inconvenient, but I will take a bit of inconvenience over 12 years in prison for hundreds of people, seeing their lives frittered away, living in the place where sunlight comes with stripes. As far as I am concerned, they have the right to call upon the judicial system and, if necessary, to be inconvenient.

When Alex’s sister first contacted me about this case, I could scarcely believe it. I had known the family. He had lived a couple of streets away from me—later he became an economic migrant and moved down to the constituency of my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury), but I still think of him as a Hanwell man. I wrote to the then Minister for Policing, Criminal Justice and Victims, the right hon. Member for Ashford (Damian Green). This is what he wrote in reply, in June 2014:

“In my view, the law on joint enterprise serves a useful purpose for bringing people to justice when they have been involved in the commission of an offence. I do not share the view that the law penalises innocent bystanders and no longer serves a valid purpose. We have no plans to review or amend the law at the moment.”

I am sorry, but this law does not serve a useful purpose: it penalises the wrong people, it brings the law into disrepute, it punishes wholly disproportionately, it destroys families, it wrecks individual lives and, above all, it disengages a whole group of people from the legal process, because when they see a system go so wrong, how can they possibly have any confidence in it? I have no argument today with the right hon. Member for Ashford, but I think that he was wrong. I think that his letter was based on a brief that probably came from somebody wearing a wig. As far as I am concerned, this law has to be changed.

[Jim Fitzpatrick (Poplar and Limehouse) (Lab)]

My hon. Friend generously gives the right hon. Member for Ashford (Damian Green) the benefit of the doubt, but clearly he was reading from a brief and he has been proven wrong, because the Supreme Court ruled in 2016 that the courts were wrong.

[Stephen Pound]

Absolutely. The Supreme Court ruled that the law had been interpreted incorrectly, but that is only half of it. Interpreting the law incorrectly is one thing, but righting the wrong is what has to happen now.

--- Later in debate ---

[Jim Fitzpatrick (Poplar and Limehouse) (Lab)]

I am grateful to speak in this important debate, and it is always a pleasure to follow my right hon. Friend the Member for Tottenham (Mr Lammy). I congratulate those who secured this debate, especially my hon. Friend the Member for Manchester Central (Lucy Powell), and I thank the Backbench Business Committee for allocating it some time.

When my constituent Ms Gillian Hyatt first came to see me in 2012 about her sons in prison, I thought it a straightforward case of a mum doing her best for her children despite the fact that they had offended. I commend her for pressing me to look beyond a concerned mother and to examine the JENGbA campaign. I attended JENGbA’s briefing in Parliament only a few months ago, as did most of my colleagues here today. I was shocked by consistent reports of case after case of mostly young men—including, as we have heard, a disproportionate number from the black, Asian and minority ethnic communities—who had been not only convicted but handed the severest of sentences. I commend JENGbA for its campaign, and for its briefing for today’s debate.

Like other Members, I have not heard anyone say that all those locked up are innocent. Called “inside campaigners”, some may well be, but the message I hear most strongly is that although some may be innocent, many are guilty of lesser offences. Some of those offences are much less serious, and therefore the tariffs handed down by the judges seem questionable at least. The numbers are huge, but efforts to assess how many people are involved have proved difficult. The Ministry of Justice has not produced statistics for those found guilty through joint enterprise, and one has to ask why.

The Bureau of Investigative Journalism estimates that between 2005 and 2013, between 1,800 and 4,500 people were prosecuted for murder with joint enterprise used as part of the charge. However, I am getting ahead of myself, because the fundamental flaw in using joint enterprise to prosecute for murder was exposed, as we have heard in speech after speech, by the Supreme Court in 2016. The Court held that in 1984 the law had taken “a wrong turn”—I think every speaker has mentioned that, and it must be one of the weakest euphemisms ever heard—in the case of Regina v. Chan Wing-Siu, and it overturned the verdict of Regina v. Jogee.

Jogee was retried and found not guilty of murder but guilty of manslaughter, and his mandatory life sentence was replaced by an appropriate sentence for manslaughter. The Supreme Court also ruled that cases prior to Jogee could only go back to the Court of Appeal if people could prove that their conviction was a “substantial injustice.” Despite the hundreds of cases at least—I repeat that the Ministry of Justice cannot, or will not, say exactly how many there are—the Court of Appeal has denied every joint enterprise appeal. Incidentally, the youngest person to receive a life sentence was just 12 years old when charged.

The common law doctrine of joint enterprise covers two types of offence. The first is “assisting and encouraging”, also known as “aiding and abetting”, and I have nothing to say about that. The other is “parasitic accessory liability”, which I find quite troubling. Even the title sounds as if the accused must be guilty of something, or has some form of vicious disease. PAL is controversial, as the secondary offender would not need to intend the crime, but merely have been able to foresee it.

Traditionally, for someone to be convicted of murder, it had to be proved that the killer intended to kill, or at least to seriously injure someone. PAL was therefore quite a shift, and led to hundreds, if not thousands, of convictions over 30 years since 1985. The Supreme Court decision in 2016 on Regina v. Jogee must, at least statistically, call some of those convictions into question. That decision, however, applies to out-of-time appeals only if it can be proved that a “substantial injustice” has occurred—that was tested in Regina v. Johnson in 2016—and proved categorically that a change in the law “would” have made a difference. The Criminal Appeal Act 1968 allows the court to quash a conviction where the misapplication of law “might”, rather than “would”, have made a difference. Since the Jogee decision, none of the 800 men, women and children currently supported by JENGbA have successfully appealed against their conviction—not one.

My constituents Asher and Lewis Johnson were both sentenced to 16 and a half years for a murder committed by another man. I will not go into great detail, but suffice it to say that they maintain they had no knowledge of the guilty party’s intention. Asher was a youth worker who had never been in trouble before. It might be that there is more to the case, but for them to be found guilty by association seems worthy of fresh examination, especially given the Supreme Court ruling that the law had taken a “wrong turn.” It certainly had for the Johnson brothers. They want a fresh hearing with the evidence presented in light of the Jogee ruling, but that has been denied. I cannot know all the facts, and like all colleagues here I do all I can to support the police in their difficult job, but something here just does not feel right.

In conclusion, JENGbA is calling for the abolition of parasitic accessory liability charging—as my hon. Friend the Member for Manchester Central explained in her excellent speech, CPS guidance on that is still very confusing. It also calls for the abolition of child life sentences, and for the Ministry of Justice to collect data on all joint enterprise secondary party convictions. It argues that this is a

“common law, used against common people, that makes no common sense.”

I believe it has a very strong case.