Joint Enterprise (Significant Contribution) Bill

Kim Johnson Excerpts

2nd reading
Friday 2nd February 2024 Commons Chamber

[Kim Johnson (Liverpool, Riverside) (Lab)]

I beg to move, That the Bill be now read a Second time.

Before I begin, I pay tribute to the incredible people who have made it possible for us to be here today, challenging the shocking miscarriage of justice that is joint enterprise. I want to say a massive thanks to Joint Enterprise Not Guilty by Association families and campaigners both inside and outside prison, some of whom are in the Gallery. Their perseverance and determination has allowed me to present the Bill. Since the early days of the campaign back in 2010, they have fought fearlessly and tirelessly against some of the most powerful British institutions for truth and justice to get to where we are today. They have never given up, and the Bill is a result of their work. I am so proud to have the privilege of working alongside them and bringing their campaign to Parliament.

I thank the many other people who have supported this campaign and helped to raise awareness of and support for our demands. My deepest gratitude goes to Jimmy McGovern, the indomitable screenwriter from my home city of Liverpool, Colin McKeown, the talented Northern Irish film maker, their teams and whole cast of the film “Common”, some of whom are in the Gallery. That film, brought to our screens a decade ago, accurately depicts the injustice of joint enterprise. Massive thanks to LA Productions for so generously producing a half-hour condensed version for us to show at our event in Parliament this week. I urge those who have not seen “Common” to watch it—it is more powerful than “Mr Bates vs The Post Office”, and I understand that it will be available shortly.

I pay tribute to the work of Becky Clarke and Patrick Williams at Manchester Metropolitan University, who went above and beyond to produce research on the costs of joint enterprise and have reminded us of the importance of not losing sight of its devastating social cost. Their guidance and expertise throughout this process have been invaluable. I thank Felicity Gerry KC, Professor Matthew Dyson and Nisha Waller from the University of Oxford, who as part of a wider working group organised by the Centre for Crime and Justice Studies drew up the simple, common-sense wording of the Bill. I also thank them for their legal support during the campaign. Their commitment to righting this wrong turn in the law has helped to bring the campaign as far as it can possibly go through the courts. Now, together, we have brought it to Parliament. I hope that today will be another step towards righting this massive wrong.

I thank the many hon. Members who have taken up this campaign and helped us to get where we are today, notably my hon. Friend the Member for Huddersfield (Mr Sheerman) and the right hon. Member for Sutton Coldfield (Mr Mitchell). I give special thanks to my hon. Friend the Member for Bootle (Peter Dowd) for his assistance by tabling an amendment to the Criminal Justice Bill just this week that mirrors the Bill we are discussing today.

When I was informed that I had been successful in the private Member’s Bill ballot, I was a bit like a frightened bunny rabbit in the headlights, but with the help and guidance of the hon. Member for Castle Point (Rebecca Harris), I feel confident that I made the right choice by picking joint enterprise as the subject of my private Member’s Bill. I also thank the Under-Secretary of State for Justice, the hon. Member for Newbury (Laura Farris) for her constructive dialogue in the run-up to this debate.

[Dawn Butler (Brent Central) (Lab)]

I congratulate my hon. Friend on her excellent Bill. The work by all the people she has mentioned, including Joint Enterprise Not Guilty by Association, on the Bill has been so important. The Supreme Court has said that joint enterprise has been wrongly interpreted by criminal trial judges for the past 30 years. Does she agree that that is terrible?

[Kim Johnson]

I do, and I will come to that point later in my speech.

I thank the cross-party sponsors of my Bill, notably the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the esteemed Chair of the Justice Committee. His support throughout this process has been invaluable and has demonstrated clearly the potential of the Bill to create cross-party consensus.

[Florence Eshalomi (Vauxhall) (Lab/Co-op)]

My hon. Friend is making a powerful speech. She mentioned the hon. Member for Bromley and Chislehurst (Sir Robert Neill). His support shows the cross-party support for looking at how a majority of our young people are wrongly criminalised and locked behind bars, and their lives thrown away. Does she agree that this Bill is important, and that we should take the criminalisation of young people away from party politics?

[Kim Johnson]

I totally agree with my hon. Friend’s point about the criminalisation of our young black people. We need cross-party consensus.

Lastly, I thank my A-team, Becky and Charley, who have been truly amazing.

Before I begin my arguments, I recognise that this is an incredibly difficult and sensitive topic, because behind each joint enterprise case there are victims of crime and their families, many of whom have lost loved ones in situations that most of us find difficult to comprehend. Behind each joint enterprise miscarriage of justice there are people—loved ones, whole families—whose lives have been torn apart by an unjust lifelong sentence where someone has been wrongly punished for the crime of another.

[Jeremy Corbyn (Islington North) (Ind)]

My hon. Friend is making an excellent contribution about a very important Bill. Does she agree that many of the predominantly young people ensnared by joint enterprise come from inner-city black communities? Their families are devastated and often lack the media and political connections to mount an urgent and rapid legal case or campaign, so these young people end up spending several years in prison for an offence they did not commit. Their lives are subsequently damaged severely. This Bill is very necessary. The injustice has gone on for a very long time.

[Kim Johnson]

I agree that the Bill will look at righting those wrongs and challenging those miscarriages of justice.

[Philip Davies (Shipley) (Con)]

Can the hon. Lady confirm whether the leader of her party supports the Bill?

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[Kim Johnson]

I can confirm that the party will be looking at this Bill when we are in power and when we get rid of—well, when we are in power.

It is possible both to uphold the law by providing powers to prosecute those who play a significant role in a crime and to prevent innocent people from going to jail. There is cross-party consensus that things need to change and that it is now up to Parliament to act. That is what this Bill seeks to do—no more, no less.

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

Does my hon. Friend agree that the campaign on joint enterprise is not about guilty people getting off, but about having a justice system that works for everyone? The Chair of the Justice Committee and I co-chair the all-party parliamentary group on miscarriages of justice, and we believe that this is the biggest injustice in the criminal justice system. There is a growing feeling across the criminal justice system, including among senior judges, that the balance has to be got right.

[Kim Johnson]

I totally agree with my hon. Friend, and I will cover some of those points in my speech. I hope that the Minister will listen closely to the arguments I put forward today and fully consider this opportunity to end this injustice, which has destroyed so many lives and places undue burdens on the courts, the prison system and the taxpayer.

As the Minister will know, joint enterprise is the centuries-old legal doctrine that was intended to give powers to prosecute people who were not the primary actor but nevertheless played a role in a crime, such as a getaway driver in a bank robbery. However, something has gone profoundly wrong in the way the law has been used for the past 40 years, as the Supreme Court recognised in the 2016 landmark case of Ameen Jogee.

[Apsana Begum (Poplar and Limehouse) (Lab)]

My hon. Friend is making a powerful speech. Research including the 2022 report from the Centre for Crime and Justice Studies has found that following the landmark 2016 Supreme Court judgment, which had been expected to lead to a reduction in these types of prosecutions and convictions, not only has there been no discernible effect, but the number of black people convicted of murder has actually risen. Does my hon. Friend agree that that is one of the reasons the Bill is needed?

[Kim Johnson]

My hon. Friend makes a valid point on the consequences of the landmark case of Ameen Jogee, whose mum is in the Gallery today. People are being given mandatory life sentences for murders that they did not commit. Thousands have been locked up for life because they have been deemed, in effect, guilty by association. Since that ruling very little has changed, with only one successful appeal, as is shown in the research by the Centre for Crime and Justice Studies that my hon. Friend referred to.

[Grahame Morris (Easington) (Lab)]

I compliment my hon. Friend on bringing forward this private Member’s Bill. Through her good offices, I have had the opportunity to meet some of the families involved. To describe some of the cases as egregious injustices is no understatement. One of the appalling things I have found is the inconsistent way in which joint enterprise guilt by association has been applied. There are cases where one might think it would have been applied, such as in the murder of Jay Abatan in 1999. I would like to highlight the Justice for Jay Abatan campaign, which is still fighting for justice 25 years on.

[Kim Johnson]

I thank my hon. Friend for raising that point and particularly for raising the Justice for Jay Abatan campaign, which is very similar to the Stephen Lawrence campaign.

The Centre for Crime and Justice Studies suggests that the 2016 judgment had little to no effect on the number of joint enterprise charges or convictions. Indeed, since 2016 there has been a new legal problem, whereby juries are deliberately not directed to consider the contribution that a person made to a crime, as in the case of Faisal Fiaz, who was in a parked car that was streets away from where the murder for which he was convicted occurred. Only Parliament can fix this.

A charge of joint enterprise too often leads to an assumption of guilt in the courtroom, with the defendant having to prove their innocence, turning our justice system on its head. This is a failure of our justice system, which is supposedly the best in the world, and an affront to the taxpayer, who is left footing the bill for sloppy sentencing. To quote Jimmy McGovern’s “Common”,

“joint enterprise might allow it, natural justice does not.”

If passed, my Bill will fix this wrong turn and help to return the law to its original intention.

Joint enterprise is currently wielded as a blunt instrument by the courts, allowing people who have not made a significant contribution to a murder to receive a mandatory life sentence. Lawyers and campaigners often describe the decision to prosecute or sentence someone to life as Russian roulette. My Bill seeks to enshrine in law the condition that a person can be prosecuted under joint enterprise only where they are proven to have significantly contributed to a crime. This would raise the bar for prosecution and provide the jury with the tools to differentiate between defendants who deserve to face a mandatory life sentence for the role they played in a serious crime and those who do not. There are countless cases where it is clear that we need a change in the law to provide juries with the basic legal test contained in my Bill.

[Richard Fuller (North East Bedfordshire) (Con)]

May I compliment the hon. Lady on bringing forward this Bill? I am very grateful to her, because it has enabled me to look at some of the background information in the note that she sent and at some of the judgments that the Supreme Court made, which I would not have been aware of. I am grateful to her for pointing out at the start of her speech that there are victims involved. We have to make sure that we protect them and their feelings, and that justice is seen to be done.

One of the concerns that we on the Government side of the House have is that, in the past, people who were given life sentences for serious crimes would have been out after six or seven years—life sentences did not mean life sentences. I want to make sure that when judges hand down a life sentence, it really is a life sentence. However, that intent stands directly at odds with the rules on joint enterprise. When someone who has committed a crime is sentenced, I would not want to be in the position of seeing someone who was there but who had not played, in the hon. Lady’s words, a significant part in the perpetration of that crime getting caught up in that. Does she not see that, without some of the changes that she is making with the Bill, the intentions of those of us who want life sentences to mean life would fall into an even greater sense of legal jeopardy?

[Kim Johnson]

The hon. Member makes some valid points, and these issues have been raised by the campaign groups. Life has meant life for people prosecuted under joint enterprise—often 27 years and upwards, but starting with 14 years. This is the miscarriage that we are looking at.

I want to give some examples. Jordan Cunliffe was 15 years old and awaiting a double eye transplant at the time he was accused of complicity in a joint enterprise murder. His mum Jan is in the Gallery today. Jordan was nearly totally blind and unable to see the incident or to run away. Despite the confession of two boys who were directly involved in the struggle that led to the death of the victim, the judge charged Jordan along with four others, leading to a life sentence for a crime he did not commit.

When Tommy was sentenced for life for joint enterprise murder, the judge told the courtroom, including his mum Lisa, who is in the Gallery today:

“remarkably there is no evidence. I can’t say you were at the scene or you carried a knife. There’s no DNA, no eyewitnesses. I don’t have a role for you. But I’m going to sentence you on a secondary role and give you an 18-year mandatory sentence”.

At the time of his conviction, Tommy was 20 years old.

Dean Winston was sentenced to life in 2014 for joint enterprise murder. His mum, Bee, is also in the Public Gallery today. Dean was 19 when he was sent to prison for 24 and a half years. Despite the confession of his co-defendant, Dean received a longer sentence than the man who committed and admitted to the murder.

Those are just snapshots of wrongful joint enterprise convictions, from JENGbA families who have campaigned for well over a decade to bring to light this grey area of the law. In their own words, this is a miscarriage of justice on the same scale as the Post Office Horizon scandal. People are being sent to prison for crimes they did not commit.

[Florence Eshalomi]

I thank my hon. Friend for high-lighting some of those cases. One of the other issues with joint enterprise is that we have seen young women and girls criminalised for the actions of their boyfriends. If we are honest, in some of those cases—this is an issue that I have campaigned on—a number of those young women and girls are coerced or are being exploited, including sexually exploited, by those men. Is this not why we need a change, so that we are not destroying those women’s lives? Sadly, this is not just about young men; it is also about a number of young women who are being criminalised and sentenced for crimes they did not commit.

[Kim Johnson]

I thank my hon. Friend for those comments. I totally agree, and I will cover some of that later in my speech.

With joint enterprise, it is often children or young people who are being put away for life. Felicity Gerry KC, who is also in the Public Gallery, has been instrumental in challenging the way joint enterprise legislation is misused, especially in her role as lead counsel on the landmark 2016 R v. Jogee case at the Supreme Court, and has helped every step of the way with this Bill.

Dr Gerry has provided some joint enterprise examples, all based on real cases: a boy cycling to and from an incident who has no contact with the victim; a driver who drops friends off to collect drugs and a fight happens outside the car; a passenger in a taxi where others get out of the taxi and go to another area where a stabbing occurs, and the passenger has no contact with the victim; schoolchildren who gather for a fight and one of them dies, but they are all prosecuted, even when they have no contact with the victim and have no weapon; children exploited to sell drugs who get caught up in the actions of others; and even a woman looking for her shoes during a violent disorder.

In the debate on new clause 16 on joint enterprise in the Criminal Justice Bill Committee on Tuesday, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) mentioned another case, in which a woman who was a victim of domestic abuse was charged under the crime of joint enterprise and, because she pleaded not guilty, received a longer sentence than the person who abused her and actually pulled the trigger and killed someone.

I am sure the Minister will share my concerns about the way joint enterprise has been used in those cases. I would be happy to write to him with details, if he would find it helpful to follow them up. I hope he will come to the same conclusion that I have: that the new law needs to change and we must therefore take the opportunity before us today.

[Apsana Begum]

Does my hon. Friend agree that one of the problems with the current law is that it perpetuates a system whereby the fear of being convicted under joint enterprise leads to innocent people pleading guilty to lesser crimes, and that this is an injustice as well?

[Kim Johnson]

I totally agree, and we all saw that play out in the Post Office Horizon scandal.

I believe that the cases I have referred to prove beyond a shadow of a doubt that the current law allows for far too broad an interpretation of complicity and has enabled joint enterprise to be used as a dragnet for sweeping arrests and prosecutions that cannot be justified on the basis of natural justice or public safety, and that come at great cost to the taxpayer, placing an undue burden on our overcrowded courts and prisons.

[John McDonnell (Hayes and Harlington) (Lab)]

Let me follow up on the point made by the hon. Member for North East Bedfordshire (Richard Fuller) in relation to sentencing overall. Although the Bill would have a radical effect on the families and the people suffering from this legal abuse, what is required is simply a clarification of the law. A consensus has now built up across the legal system—from practitioners expressing concerns in court to members of the justice union, which includes the Prison Officers Association and others—that Parliament is holding them back in securing justice for people. It is believed that there needs to be a relatively minor change in the law to enable the courts to dispense justice in the way that they wish to do so.

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[Kim Johnson]

I totally agree with my right hon. Friend. That is what my Bill would do, by making a small change to the 1861 Act. During cross-party discussions with Ministers and shadow Ministers and at the Criminal Justice Bill Committee, I have yet to hear a persuasive argument put forward against this formula. I hope the Minister will agree that this wording is a common-sense approach that would keep the decision-making power with the jury, and perhaps strengthen the law by restoring its original intention, removing those current uncertainties that give rise to the miscarriages of justice that I have discussed today. Let me clarify that the Bill would cause no unintended consequences, or make it harder to punish people who have committed a crime, in line with the law as it is intended.

[Mr Sheerman]

One of the arguments that we hear time and again is, “Are you going to let the getaway driver get away with it?” Does my hon. Friend agree that this Bill would not do that, and that there is no intention for it to do so? The Bill that she is introducing is fair and balanced. I was with a senior retired High Court judge last night who said that it was about time that we put this matter right.

[Kim Johnson]

I welcome my hon. Friend’s contribution; that is exactly what the Bill is intended to do.

To illustrate my point further, I shall turn to the 2010 Victoria station attack, which the Under-Secretary of State for Justice, the hon. Member for Newbury, referred to in Tuesday’s debate at the Criminal Justice Bill Committee. In that incident, a group of young men chased and then attacked another young man, who was repeatedly stabbed and died. The coroner could not determine who had struck the fatal blow, so the whole group of assailants were put on trial and a number were convicted of murder and of manslaughter. They were clearly making a significant contribution to an awful crime.

Another commonly cited case is that of the racist killers of Stephen Lawrence. Again, there was damning evidence that the many accused did play an active and intentional role in his murder. My revised Bill would allow for their joint enterprise prosecutions. Another recent high-profile case concerns the murder of a young woman in Warrington. Both defendants were successfully, and correctly, prosecuted under joint enterprise.

My Bill is intentionally drafted to allow the use of joint enterprise laws in such cases to prosecute multiple defendants, where there was clearly evidence of a significant contribution by the accused to the death of the victim. It will be for the courts to decide in each case what constitutes a significant contribution, and it will form a basic legal test alongside many others used by juries to aid in their deliberations and protect against miscarriages of justice, while upholding the law as it is intended.

In response to the joint enterprise amendment on Tuesday, the Minister recognised the importance of the law on joint enterprise and the consequences that result from convictions on which both she and I find common ground. Ultimately, however, she was unable to support the new clause, saying:

“We think that it is too difficult to require the prosecution to prove a significant contribution”.—[Official Report, Criminal Justice Public Bill Committee, 30 January 2024; c. 485.]

Following that, I was grateful to meet the Minister yesterday to discuss the issues raised at the Bill Committee regarding the language of “significant contribution”. She reiterated her concern that “significant contribution” could prove too difficult a legal test for the prosecution. In particular, she referenced cases where contribution to a crime is difficult to prove and where, with multiple assailants, it is impossible to tell who dealt the final blow that caused the death of the victim.

Although I recognise the Minister’s trepidation, I find that a disturbing and worrying argument that amounts to an admission that, within our legal system, there is an area where we do not believe it is necessary to prove that a person must have made a significant contribution to a crime before locking them up and throwing away the key—and, indeed, that the Government are content with this state of affairs. It removes the burden from the prosecution to prove guilt and instead places the burden on the defendant to prove innocence. No other area of our law reverses that principle, and I hope the Minister will clarify the Government position on that and reconsider.

I find it confusing that a 14-year-old stabs and kills a young girl in Liverpool, is charged with murder and sentenced to life to serve a minimum of 13 years, while the young men mentioned throughout my speech did not commit a crime yet have been issued life sentences. Joint enterprise allows the prosecution to use a racist gang narrative to imply guilt and persuade juries using prejudicial stereotypes in place of cold, hard evidence.

[Florence Eshalomi]

My hon. Friend will be aware that the Crown Prosecution Service conducted a six-month trial that looked at the racial bias, after legal challenge from campaigners, and the results were stark. In 190 cases, involving more than 680 defendants, the CPS found that it disproportionately impacted BME men and children aged 14 to 17, and that a whopping 93% of joint enterprise defendants were male. That shows that this law, as it is being used now, disproportionately impacts too many young black men.

[Kim Johnson]

I thank my hon. Friend for her intervention; I will address that point about the CPS a bit later.

Last year, the human rights groups Liberty submitted one such case to the Criminal Cases Review Commission after 11 defendants, all black, were collectively convicted and sentenced to a total of 168 years in prison for a single murder. Evidence included a rap video made online a year earlier, photos of some of the defendants using hand signs, and the alleged favouring of the colour red. In that and similar cases, the prosecution called police officers as experts to give their opinions on alleged gang culture, a concept that carries with it racist stereotypes intended to sway a jury.

I believe that my Bill is the right approach. If there is no evidence of a significant contribution to a homicide, how can it be right that we prosecute for a mandatory life sentence? It is precisely this justice gap that systematically drives prosecution and conviction based on inference, stereotypes, gang narratives and the criminalisation of culture as a replacement for cold, hard evidence. It will be up to the jury to decide whether someone has made a significant contribution to a crime, and if a person played a part in a fight in which someone was killed, the test will clearly be met for significant contribution. I urge the Minister to consider this carefully and, when he responds, explain to me and the families sitting in the Gallery how we can justify continuing to lock people up when we cannot prove that they made a significant contribution to a crime.

It may surprise the House to note that the CPS case management system does not currently enable joint enterprise cases to be flagged. However, in September last year the CPS reported on a six-month pilot project, forced by a legal challenge by JENGbA and Liberty. In my meeting with the Minister and her team yesterday, I was grateful to hear about the progress being made by the CPS in this area, and that by the end of this month the CPS hopes to have in place systems to flag joint enterprise cases, so we will be able to analyse the data. I was also pleased to hear more about the national scrutiny panels. I have written to the Director of Public Prosecutions to discuss the work further. It was definitely encouraging to hear that more work is being done in this policy area. It shows that it is widely accepted that there is an issue that needs to be challenged. Parliament has a key role to play in that.

Data from the six-month CPS pilot reveal that more than half those prosecuted under joint enterprise were under 25 and that black people are 16 times more likely to be prosecuted for homicide or attempted homicide under joint enterprise laws. Young working-class and black boys are being sentenced for longer than they have been alive for crimes that they made no significant contribution to. It is truly astounding that nothing has been done about this sooner; it is a stain on our system and must be stopped.

On that note, I am grateful to have received support from the UN Working Group of Experts on People of African Descent, which has raised concerns about the impact of joint enterprise. I take the opportunity to read out a statement the group sent to support my Bill: “The Working Group of Experts on People of African Descent confirms the critical importance of the Joint Enterprise (Significant Contribution) Bill towards addressing the treadmill of convictions that young people of African descent are disproportionately subjected to in the United Kingdom. The Bill needs to apply retrospectively to remedy the injustices perpetrated by the law, which is directly in conflict with people.”

It is a testament to the years of campaigning by the families that we have now received this recognition of the injustice of joint enterprise by the UN working group, and I truly believe it is a case of when, not if, this legislation will be amended and put right. I hope that the Minister will help today by taking a further step in the right direction. While data is scarce, the full scale of joint enterprise remains as yet unknown. The pilot study undertaken by the CPS last year indicates that more than 1,000 people are tried every year for joint enterprise, at a time when we have record backlogs in the courts and our prisons are dangerously overcrowded. Parliament must take urgent action to end the over-zealous application of joint enterprise prosecutions and sentencing. To conclude, a miscarriage of law is a miscarriage of justice. As I have laid out today, there is a cross-party concern and there are serious questions about the letter of the law.

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[Kim Johnson]

With the leave of the House, I thank everybody who has contributed to my debate today, and particularly to the parents in the Gallery from Joint Enterprise Not Guilty by Association. I thank the Minister for putting forward the Government’s case. He did say that he was not supporting the Bill today, so I am taking that positively. I ask him whether he would consider reviewing that. Given that we are pushed for time and there are other Bills to be debated today, I am willing for the debate to be adjourned to another day.

Ordered, That the debate be now adjourned.—(Rebecca Harris.)

Debate to be resumed on Friday 21 June.