Victims and Courts Bill

Debate between Lord Marks of Henley-on-Thames and Baroness Brinton

Consideration of Commons amendments and / or reasons
Thursday 23rd April 2026 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I am going to intervene very briefly to say that it is good that an agreement has been reached on the difficult issue of the processes and arrangements relating to private prosecutions. As with many of the other issues we have discussed during the passage of this Bill, private prosecutions are a complex issue, and not one that can be resolved swiftly or even with a clause or two on the face of the Bill.

I thank the Minister for meeting my noble friend Lord Marks and me on a number of occasions during the Bill to discuss how we can set in place mechanisms to ensure that the Government’s changes will not have surprising or unintended consequences. My noble friend Lord Marks will talk about the details of those changes, which he proposed to the Conservatives at the previous stage of ping-pong; their amendment then reflected his proposal, for which we thank them.

I welcome the government proposals in Motion A. Amendment 4D includes the two key elements of any effective organisation: that there is data to inform decisions—in this form, an impact assessment that would be published—and that the Lord Chancellor must consult the Law Society, the General Council of the Bar and others considered appropriate. I hope that the Lord Chancellor will not use these methods just once. My noble friend Lord Marks has identified core action that will work elsewhere in the court system, where reform may well be needed.

As we come to the end of this Bill, I also want to put on record the support and help of Elizabeth Plummer in our Whips’ Office, and the many individuals and organisations who have worked with us, especially the offices of the London Victims’ Commissioner and the Victims’ Commissioner, Claire Waxman. We would not be where we are today without them, and I thank them.

Finally, I want to return to the discussions with the Minister. During the passage of the whole of the Bill, her officials have been enormously helpful and her personal willingness to discuss, both publicly at the Dispatch Box and privately in meetings, speaks volumes about her approach. I thank her for that and look forward to working with her again.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I repeat and echo all the thanks that my noble friend Lady Brinton has just made to the Minister, her officials and all the others who have helped with this Bill. I was going to say this at the end, but I shall say it now—I am also enormously grateful to and in awe of the work of the noble Baroness, Lady Brinton, during the course of this Bill. Her dedication and thoroughness on issues that have concerned her and on which she has worked for many years has been awe-inspiring. Principally, I echo her thanks to the Minister for meeting us and, in particular, for meeting me after the first round of ping-pong last week to discuss our concerns. Notable has been the way in which she has recognised the risk of deterring private prosecutions by introducing inappropriate regulation of costs, and the way she and her officials have framed government Amendment 4D to Clause 12, laid in the Commons, which government Motion A today addresses.

Last Wednesday, we sought consultation on the regulations proposed by Clause 12 and an impact assessment and, as the noble Baroness rightly points out, a response to that impact assessment was also sought. On consideration, and after the discussions we have had, we are completely content that the consultations proposed involving the Law Society, the Bar Council and anyone else the Lord Chancellor believes should be consulted, meet the need for consultation on the regulations proposed.

Importantly, the Government have agreed to publish an impact assessment, and I accept the assurances that that will be thorough and worked-through. The fact that we originally sought a response to an impact assessment may have reflected a procedural misunderstanding. I take the Minister’s point, however, that the response will be apparent when the regulations, such as they are proposed, are in fact made and the response to the impact assessment will be reflected by the Government’s laying of the regulations.

I also take the point—as do the Government—made last Wednesday by the noble and learned Lord, Lord Thomas of Cwmgiedd, that there may be some urgency to the introduction of such regulations, and that insisting on a government response to an impact assessment beyond publication of the proposed regulations may delay them. So we are quite content with the steps taken, or to be taken, by the Government. Crucially, however, no regulations will be made before the consultation and the impact assessment are complete. That is the most important point. This is going to be a meaningful exercise in consideration of what needs to be done.

Granted, the Government have not conceded the affirmative resolution but, following a favourable consultation and a positive impact assessment, I accept that that is a secondary consideration. I also accept the points made by the Minister on proportionality. We are content that the Government have met our concerns and we will support Motion A.

Having mentioned my thanks to my noble friend Lady Brinton, I also extend my thanks to others in this Chamber, including those on the Conservative Front Bench, who have been helpful in achieving what is now a much better Bill than the Bill that came to this House.

Crime and Policing Bill

Debate between Lord Marks of Henley-on-Thames and Baroness Brinton

Committee stage
Thursday 5th February 2026 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I support Amendment 486 and thank the noble and learned Lord, Lord Garnier, for his excellent introduction to it, which was very clear to follow.

Over the decades, thousands of people have been wrongly jailed for life in appalling miscarriages of justice because of the use of joint enterprise to charge those present with the commission of a serious crime. Sometimes that might be someone who was present and thought they were going to be involved in a low-level crime, whereas they had no involvement at all in the actual violence or murder committed by another but were still charged under joint enterprise as if they had also committed the act of violence or murder. That is very similar to the example that the noble Baroness, Lady Fox, gave us.

Even worse, there are those who have been jailed for murder simply because they were present at the act of murder, although they had not been members of the gang involved. Over the last 15 years, this House has seen various amendments and had debates and questions trying to correct and clarify when charges should or should not be used for those who did not commit serious acts of violence. As has already been mentioned, a decade ago the Supreme Court recognised that joint enterprise had been used repeatedly and incorrectly in many cases, but nothing has really changed since then. I am grateful to the noble Baroness, Lady Fox, for quoting the figures for the three years before and after 2016, because that judgment has not changed the numbers either.

The key questions addressed by the Supreme Court, including what qualifies as assistance and encouragement, remain obfuscatory. It is still not clear whether presence at a serious crime is in itself enough. I will not repeat the data that the noble Lord, Lord Ponsonby, and others have mentioned in the briefing we got from Joint Enterprise Not Guilty by Association. I differ slightly from the view of the noble Baroness, Lady Fox. It is quite notable that over 50% of those prosecuted are not just young Black men and women, but there is also substantial overrepresentation of disabled and neurodivergent people, as well as many under 25. I might understand the last, but not the others on their own.

The proposal of the noble and learned Lord, Lord Garnier, would completely change the approach to considering who has been involved in serious crime. The amendment would ensure that, rather than guessing the individual's state of mind, associations and foresight of what might occur, the CPS must look at actual material actions, making that the baseline objective threshold for prosecution. I hope that the Minister is finally prepared to change the injustice in the use of joint enterprise and start a new era based on facts, not suppositions.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I fully support this amendment. I agree effectively with every word that has fallen from the lips of the noble and learned Lord, Lord Garnier, the noble Lord, Lord Ponsonby, and my noble friend Lady Brinton, and almost every word uttered by the noble Baroness, Lady Fox of Buckley. I hope that the Government will listen and give careful consideration to this amendment.

The law of joint enterprise has long been unsatisfactory. It was substantially improved by the decision of the Supreme Court in the Jogee case, as explained by the noble and learned Lord, Lord Garnier. The present state of the law in the light of Jogee is that an offence is committed by an accessory only if the defendant charged as an accessory intended to assist the principal in the commission of the offence. Even so, the law is still unsatisfactory and unclear, as extensively supported by the academic evidence cited by the noble and learned Lord, Lord Garnier, and by the noble Lord, Lord Ponsonby, and it sorely needs reform.

The phrase “significant contribution” to the commission of the offence used in the amendment is apt. It would overcome the difficulties mentioned by the noble and learned Lord, Lord Garnier, with the Court of Appeal’s position on the related accessory offences of procurement. The phrase has been proposed by the Centre for Crime and Justice Studies and widely by academics. It was the phrase used in Kim Johnson’s Private Member’s Bill, which was supported by, among others, Sir Bob Neill, who was then chair of the Justice Select Committee, and therefore one presumes by the committee itself.

While the expression may in some ways seem vague, it sets exactly the type of test that juries can and do recognise and regularly apply, rather similarly to the test for dishonesty used in relation to Theft Act offences. The amendment would make an offence of being an accessory much more comprehensible and justifiable than the present test. The present test, I suggest, focuses disproportionately on the mental element of accessory liability, whereas the amendment would focus on the actual contribution of the accessory to the commission of the offence.

There is considerable cause for concern that joint enterprise law in its operation is discriminatory. The noble Lord, Lord Ponsonby, mentioned the research showing that Black people are 16 times more likely to be prosecuted on the basis of joint enterprise than white people. The noble Baroness, Lady Fox, mentioned the same research. What neither mentioned is that that staggering figure—I suggest that it is staggering—was based on the CPS’s own figures for 2023.

I accept that there may be cultural issues, as mentioned by the noble Baroness, Lady Fox, but they have to be judged against the caution that was mentioned by my noble friend Lady Brinton. There is also serious evidence of unjustified, unwarranted group prosecution. There is significant concern about evidence of racial bias and the risk of guilt by association in consequence. The point made by the noble Baroness, Lady Fox—that it sometimes may seem easier to prosecute for joint enterprise than by establishing individual guilt—is, or may be, justified. Concerns about guilt by association and gang involvement are entirely legitimate. I think they are shared by the public, and they are evidenced by the clear examples we have heard today. They evidence a lack of principle in prosecution and in the application of the law.

In evidence to the Leveson review, Keir Monteith KC and Professor Eithne Quinn from the University of Manchester argued that joint enterprise was overused. They went so far as to say that it contributed, as inevitably statistically it does, to the growth of the backlogs. They cited the trial of seven Black teenagers in 2022 who were accused of murder, where the prosecution accepted that they could not be sure who stabbed the victim, but asserted that all of those who went to the park where the killing occurred

“shared responsibility, at the very least contributing to the force of numbers”.

That was an inaccurate or, at the very least, incomplete statement of the law in the light of Jogee. Six of the seven defendants were acquitted, but the fact that they were tried and went through the period that they did prior to trial highlights the confused state of the law, which makes the essential ingredients of the offence difficult for jurors and sometimes even prosecutors to understand.

We should also take into account, particularly given the delays in bringing trials to court, the serious risk of charges based on joint enterprise leading to defendants who are ultimately acquitted being held on remand, as one of the seven defendants in the case I mentioned was for no less than 14 months.

Finally, I have a technical point that was mentioned by the noble and learned Lord, Lord Garnier, to whom I had mentioned it. While I support the amendment completely, it needs to be reworded or supplemented to cover summary offences. That is because, as a result of the amendment of Section 8 of the Accessories and Abettors Act 1861 by the Criminal Law Act 1977, the accessory offence under the 1861 Act applies only to indictable offences—offences that are either indictable only or triable either way. A parallel amendment to Section 44(1) of the Magistrates’ Court Act 1980 is required to cover summary offences. There is no justification for distinguishing between them. With that rather academic point, I hope that the Government will act on this.