Crime and Policing Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Tuesday 20th January 2026 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I open by thanking the noble Lord, Lord Marks, for so fully setting out his and the other amendments in this group. I agreed with his opening points, and I support all the amendments—I suspect all the speakers in this short debate will support them too. In a sense, they offer a range of possible changes, from a broad review to addressing specific anomalies, which the noble Lord did.

I am absolutely confident that our Lord Chancellor would be very sympathetic to these amendments. I know that he has said in recent speeches that he wants to look at criminal records, and those for young people in particular. That is an excellent starting point, and I hope that the Minister can reinforce that point when she comes to sum up.

Touching on the amendments in my name, I thank the noble Lord, Lord Hampton, the noble Baroness, Lady Sater, the noble and learned Lord, Lord Garnier, and my noble friend Lord Spellar, who will speak on these matters as well. My Amendment 476 seeks to prevent the automatic disclosure of childhood conditional cautions in a DBS check by amending the definition of a criminal conviction certificate in the Police Act 1997.

My Amendment 477, which was touched on by the noble Lord, Lord Marks, addresses a clear anomaly in the law as it stands. The amendment seeks to ensure that the criminal record for a juvenile is dated from the offence rather than the conviction date. As the noble Lord, Lord Marks, said, these could be really quite far apart, so the way the conviction is treated will be different, because the young adult will be convicted even though the offence was committed when he was a youth.

Amendment 478 seeks to ensure that custodial sentences, except for the most serious sentences, will be removed from an individual’s criminal record after five and a half years if the offence was committed before the age of 18.

Sitting here earlier today and at previous Committee sittings of this Bill, the noble Lord, Lord Young of Acton, drew something to my attention which I was not aware of involving non-crime hate incidents. He pointed out that, for youths, a non-crime hate incident is treated the same as for an adult, and that means a six-year retention of the information. That is another example of an anomaly, and I hope, when the Home Office comes to report on non-crime hate incidents, it can ensure that that is tied up with the Ministry of Justice considering the way youth convictions are looked at for DBS checks.

I also want to say something about Amendment 486D, in the name of the noble Lord, Lord Carter. That is specifically about transport-related convictions of young people. I support what he is going to say, I am sure, but I have to say that, as a youth magistrate for nearly 20 years, I cannot remember ever seeing a young person in court for evasion of a fare. If he has figures—he is nodding his head—I will listen to them with interest, because it is not my personal experience of what I saw in youth court. I tend to see much more serious cases, but nevertheless I will listen to and support what he says with interest.

The overarching point is that this is a difficult area. It is very easy to point out anomalies. I am sure that we have a very sympathetic Lord Chancellor, and I really hope that the Government seize this opportunity to address the overarching issue of the way we treat our young people, so that they are not held back when they go into the adult world and the world of work.

[Lord Spellar (Lab)]

My Lords, I support the amendments standing in the name of my noble friend Lord Ponsonby and the noble Lord, Lord Marks. I have been arguing for some years in the House of Commons that the DBS scheme has, frankly, run out of control. I can quote from June 2020, when I said to the then Prime Minister Boris Johnson that it was

“a major obstacle to people turning their lives around. It is inefficient, unfair and, frankly, discriminatory. The Lammy report dealt with this in some depth nearly two years ago, so we do not need any more … inquiries. We need action”.

Reference has been made to the impact in different parts of the country. In smaller police forces, not only are cases often not taken to court but cautions are not issued, and instead people are very informally told to mend their ways. In cities, it can often be very different, and this also still lies on the record. The then Prime Minister Boris Johnson said in his reply to me:

“Any MP will have had very hard cases caused by the DBS system”.—[Official Report, Commons, 24/6/20; col. 1309.]


I think there is a general recognition at the political level that this is a problem. I have to say from all my experience that there is deep inertial resistance inside the Civil Service to changing this, and I urge Ministers vigorously to overcome it, particularly given the report done by David Lammy, who was commissioned by the then Conservative Government to look into this area.

We also saw similar problems with the first elections for police and crime commissioners. Unwisely, a requirement was put in that someone should have no criminal conviction. We had a candidate who had to stand down as he had been convicted for possessing an offensive weapon when he was 13. We had another candidate who had committed a minor offence 22 years previously. These are people with long records of public service, and in no way should that have been held against them.

Whatever steps we take should also relate to proportionality and relevance. When I was a Transport Minister, there were proposals to introduce DBS checks at airports—I fully understood that—but if somebody had a conviction for an assault outside a nightclub in Southall on a Saturday night, I was not really worried if he was throwing my bags around in the luggage section. I would have been concerned if he had had a conviction for theft or for dealing in stolen goods. That also needs to be taken into account and be put right.

As a constituency Member of Parliament, I also had a woman who had been given a suspended sentence for an assault, age 18, in an argument with another girl over a partner. In her 40s, this was still preventing her. This does not just affect young people; it blights people right the way through their lives—and not just their lives but their children’s lives, as they are not able to provide support for them and have all the frustration of not developing their skills of life. It does not let people move on but also deprives the workforce of talent.

We are told sometimes that DBS checks and the ongoing system are fine, and that employers will look at them and take proportional action. They do not. Once a DBS check comes back with anything on the record, the fact is that people automatically get dropped. What is even more outrageous is that those same employers then go bleating to government, saying, “We can’t get workers here”, and so we have to bring them in from abroad. That was one factor that led to the huge surge of care workers being brought into this country in recent years—a considerable amount of exploitation and fraud accompanied it, by the way. At the same time, people were being kept off work, on benefits, not able to provide for themselves or their families.

My plea to the Committee is to support change and give people hope that they can turn their lives around, to take the opportunity to reinstate what I would argue were the principles of the Rehabilitation of Offenders Act when it was first brought forward, and to make some progress. We may need to make further changes in the future, but these amendments provide a very good start.

Crime and Policing Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Thursday 5th February 2026 Lords Chamber

[Lord Garnier (Con)]

My Lords, my Amendment 486, co-signed by the noble Lords, Lord Ponsonby of Shulbrede and Lord Berkeley of Knighton, and the noble Baroness, Lady Fox of Buckley, is a probing amendment designed to enable the Committee to consider the criminal law on joint enterprise and the Government to tell us how and when they intend to reform this troubling aspect of our law. The noble Lord, Lord Berkeley, regrets that he cannot be here this afternoon. He had wanted to refer to the law of Scotland, which I will not—simply because it would be a mistake for me to venture into that dangerous water. The noble Lord, Lord Ponsonby, after having listened to what I have to say and endured my speech, might regret that he could be here, but I am very grateful to him for being here.

The instigator of this amendment is Kim Johnson, Member of Parliament. She presented a Private Member’s Bill to this effect in the other place in February 2024, and initiated a debate on joint enterprise through her Amendment 13 to this Bill on Report in the other place in June 2025. Amendment 486 is framed in the same terms, and its supporters come from across your Lordships’ House. Legal academics and practitioners outside Parliament have argued for it as well.

Section 8 of the Accessories and Abettors Act 1861, if changed by my amendment, would provide that “Whosoever shall”—and here I add the amending words—

“by making a significant contribution to its commission”,

and would continue,

“aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender”.

I believe that the noble Lord, Lord Marks, will address the corresponding need to amend the Magistrates’ Court Act 1980 later this evening.

The last Government rejected this proposal because they said it would be too difficult for the prosecution to prove a significant contribution. I disagree. This amendment may not provide the best or only answer, but the intention is to bring to Parliament’s and the Government’s urgent attention the need for clarity, and therefore justice, in an aspect of our criminal law that has, over the years, led to confusion and injustice, as our courts have wrestled with how to deal with defendants who agree to commit one crime but who go on separately or together to commit another one. Over the years, that has led to a version of the law of joint enterprise that has allowed several people to be convicted of a crime, usually murder or manslaughter, even if only one person committed the fatal act. In some cases, there have been demonstrably unjust convictions.

Let me mention a few recent developments. The first is the combined Supreme Court and Privy Council decision in two appeals, Jogee and Ruddock, from England and Jamaica respectively, heard in 2016. If I may, I will refer to those two appeals as Jogee. The question of law relating to the liability of a secondary party was whether the common law took a wrong turning in two cases, one called Chan Wing-Siu, in 1985, and the other the Crown v Powell and English, in 1999.

The Jogee appeals concerned a subset of the law of secondary liability for a crime relating to the person who did not himself forge the document, fire the gun or stab the victim—the person who did so is the principal—but who is said to have encouraged or assisted the principal to do so. There is no question that persons who are indeed together responsible for a crime are all guilty of it, whether as principals or secondary parties. Sometimes it is not possible to determine exactly whose hand performed the vital act, but this does not matter, so long as it is proved that each defendant either did it himself or intentionally assisted or encouraged it.

Jogee did not affect that rule. In Jogee, the court was considering a narrower subpart concerning secondary parties who had engaged with one or more others in a criminal venture to commit crime A but, in doing so, the principal had committed a second crime, crime B. In many of the reported cases, crime B is murder committed in the course of some other criminal venture, but this aspect of the law is not confined to cases of homicide or even to cases of violence. The question in Jogee is the mental element that the law requires of the secondary party. This narrower area of secondary responsibility has sometimes been labelled joint enterprise. To speak of a joint enterprise is simply to say that two or more people were engaged in a crime together. That, however, does not identify what mental element must be shown in the secondary party. The narrower area of secondary responsibility in question, where crime B is committed during the course of crime A, has been in the past more precisely called parasitic accessory liability—a phrase that I have to accept does not exactly trip off the tongue.

The two cases of Chan Wing-Siu and Powell held that, in the kind of situation described, the mental element required of the secondary party is simply that he foresaw the possibility that the principal might commit crime B. If the secondary party did foresee this, the case is treated as continued participation in crime A—not simply as evidence that he intended to assist crime B but as automatic authorisation of it. So the secondary party was guilty under this rule, even if he did not intend to assist crime B at all. This set a lower test for the secondary party than for the principal, who will be guilty of crime B only if he has the necessary mental element for that crime, which is usually intent. That was in contrast to the usual rule for secondary parties, which is that the mental element is an intention to assist or encourage the principal to commit the crime.

Jogee held that Chan Wing-Siu and the Crown v Powell had taken a wrong turning in their reasoning. The decisions departed from the well-established rule that the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. They also advanced arguments based on the need that co-adventurers in crimes that result in death should not escape conviction without considering whether the secondary parties would generally be guilty of manslaughter in any event. The Supreme Court decided that the law must be set back to the correct footing that stood before Chan Wing-Siu.

The mental element for secondary liability is the intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime and sometimes to a range of crimes, one of which is committed. Either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but, in other cases, it takes the form of more or less spontaneous joining in a criminal enterprise. Again, either will suffice.

Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary. If he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. In many cases, the intention to assist will be coterminous with the intention that crime B be committed, but there may be some where it exists without that latter intention.

In most cases, it will remain relevant to inquire whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary party’s intention to assist. This will be a matter of fact for the jury after careful direction from the judge. The error, Jogee says, was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence—albeit sometimes strong evidence—of intent to assist or encourage. It is a question for the jury, in every case, whether the intention to assist or encourage is shown. The correct rule, therefore, is that foresight is simply evidence—albeit sometimes strong evidence, as I say—of intent to assist or encourage, which is the proper mental element for establishing secondary liability.

The story does not end there, I am sorry to say—for those noble Lords who are still with me. For those convicted post Jogee, there is now a concern in the minds of some academics and practitioners that the Court of Appeal has subsequently lowered the conduct element and removed causation once again to widen liability through another error of law.

This criticism follows two cases in the Court of Appeal in 2021 and 2023, one called Rowe and the other called Hussain, where it was held—if I have this right—that, save for procuring a crime, conduct is enough, causation is not necessary and contribution is implicit and need not be measurable. The consequence is that the statutory language of “aid, abet, counsel or procure” is lost, and liability through complicity does not require proof that the accused person made a significant contribution to the crime in which he is alleged to have been complicit. Without a significant contribution, an alleged accomplice is not meaningfully involved in the principal’s crime.

Professor Matthew Dyson in his paper “The Contribution of Complicity”, published in the Journal of Criminal Law in 2022, suggests that judges should direct juries on contribution. This would retain the necessary derivative nature of complicity. Dr Felicity Gerry KC, who appeared for one of the defendants in Hussain, argues that the result of Dyson’s research

“is a much safer legal framework to ensure only those who make a significant contribution to the crime are at risk of conviction. The current approach fails to make it clear that there must be some nexus between the alleged acts of assistance and encouragement and the principal’s commission of the crime. Dr Beatrice Krebs has explained that without further guidance on the level of contribution made by the accessory’s action towards the principal’s commission of the offence, the jury has no tool to distinguish between an accessory who was merely present and one who by their presence has assisted or encouraged. Put simply—the decision in Hussain leaves a real risk of convicting people who make no significant contribution to the crime. The fundamental problem both Dyson and Krebs identify is the Court of Appeal focus on the accessory’s conduct rather than proof of the contribution to the principal’s commission of the offence”.

Dyson’s proposed test of a significant contribution, which I import into Amendment 486, is a measure that could have tightened the conduct element in complicity, just as Jogee envisaged greater care in fault.

Dyson argued that Jogee passed over the important issue of what contribution an accomplice needs to make to a principal’s crime. He submitted that

“English law is too willing to assume that such a contribution has occurred and has little detailed law to test for it”

and that a more rigorous approach is needed. He suggested a two-part approach:

“to be liable for assisting or encouraging a crime, the accomplice must make a substantial contribution to the principal’s commission of it; to be liable for procuring the principal’s crime, the accomplice must bring the crime about”.

Whether the accomplice’s assistance or encouragement had made the necessary substantial contribution would be a question for the jury. This approach, he argues, would be consistent with what was said in Jogee about overwhelming supervening acts. Where such an issue arose, a jury would first have to decide what level of contribution the assistance or encouragement of the accomplice had made and would then have to decide whether that had persisted to the point when the principal committed the offence.

The Court of Appeal rejected that proposition in Hussain, so, in addition to all those wrongly convicted before Jogee, there is a growing cohort of prisoners whose contribution to a crime has never meaningfully been measured. With no minimum threshold for the conduct element and, in murder, the consequence of lengthy tariffs on life sentences, this latest approach to joint enterprise contributes to overcriminalisation and overincarceration. Prison overcrowding and perceived injustice are, I suggest, a toxic mix. Absent a further case before the Supreme Court, we look to the Law Commission and the Government to find a way through.

In December 2024, the Law Commission announced a review of homicide and the sentencing framework for murder. It will, among other things, examine the law on joint enterprise following the Supreme Court ruling in Jogee. I suggest that the published timetable for the review is too long: opened in August 2025, with two separately focused consultation papers to be published in 2026 and 2027, it will not report until 2028. Would it not be possible to conclude the proposed review with two separate, if linked, reports—first, much earlier, on the offences, and, secondly, on defences and sentencing—rather than waiting until 2028 to publish one final report? Depending on what is in the legislative programme for 2028-30 and bearing in mind the delays caused by a general election and changing political priorities, it could be well over two years before anything is done.

I know from my own experience in government and opposition in Parliament since 1992 that Governments are reluctant to do anything that looks like being weak on crime, especially violent crime, but getting the law on joint enterprise understood and settled in statute is not a sign of weakness but evidence of the search for justice. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble and learned Lord, Lord Garnier, for introducing this matter so fully. He started by saying that this was a troubling aspect of the law. I want to talk about how troubling it is and to reflect on the academic research which underpins many of the comments he made. I was a youth magistrate for many years, and my experience is underpinned by the academic research which I will refer to.