Joint Enterprise

Lucy Powell Excerpts

Thursday 25th January 2018 Commons Chamber

[Lucy Powell (Manchester Central) (Lab/Co-op)]

I beg to move,

That this House notes the Supreme Court judgment in the case of Jogee and Ruddock of February 2016 that the law on joint enterprise and parasitic accessory liability had been wrongly interpreted for more than 30 years; further notes that since that judgment, the number of cases brought under joint enterprise has remained unchanged; further notes that there have yet to be any successful appeals of cases from before February 2016; and calls on the Government to review the use of joint enterprise and to bring forward legislative proposals to clarify the law on joint enterprise.

I welcome you back to your place in the Chair, Mr Deputy Speaker, and I am sure that the whole House will join me in wishing you and your family all the best; I know that it has been a very difficult few weeks for you.

I thank the Backbench Business Committee for accepting the application for this important debate, and I thank the right hon. and hon. Members who supported that application, particularly the right hon. Member for Sutton Coldfield (Mr Mitchell), the hon. Member for Bromley and Chislehurst (Robert Neill) and my right hon. Friend the Member for Tottenham (Mr Lammy), all of whom were co-sponsors of the application. I also thank the families and campaigners on joint enterprise, who are known as JENGbA—Joint Enterprise: Not Guilty by Association—and many of whom are in the Public Gallery today. They have never given up in their fight for justice for their loved ones.

Why are we having this debate now? It is nearly two years to the day since the Supreme Court made a landmark ruling that the law had taken a “wrong turn”. That followed years of campaigning and high-profile and seminal documentaries and films, such as “Common” by Jimmy McGovern. Since then, however, nothing of substance has actually changed. In the run-up to the ruling, the campaigners highlighted how, particularly in murder cases, secondary parties were too often receiving mandatory life sentences for having a lesser part or no significant part when compared with the principal party. They also showed that the evidential threshold was much lower than would normally apply to murder, particularly the notion that secondary parties “might” have foreseen the actions of others, rather than having knowingly foreseen them.

At the time of the ruling, campaigners, parliamentarians and others viewed it as a victory and had confidence that injustices would be put right and that the use of joint enterprise would be more limited going forward. However, two years on, the Supreme Court ruling feels increasingly like a pyrrhic victory, with no case from the 30 years in which the “wrong” law was applied being awarded an appeal, and many new cases with all the hallmarks of the old cases being successfully prosecuted.

[Siobhain McDonagh (Mitcham and Morden) (Lab)]

I congratulate my hon. Friend on securing a debate on this difficult issue, which is not a small matter. Does she agree that 4,500 people are currently in prison having been caught by the wrongful application of joint enterprise law? Men, women and children are serving long sentences for crimes that they did not commit.

[Lucy Powell]

I fully agree with my hon. Friend. We know it is at least that sort of figure—we do not have accurate figures.

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

I congratulate my hon. Friend on securing this debate. This crucial issue is a priority for the newly formed all-party parliamentary group on miscarriages of justice.

The particular case of Alex Henry is of great importance. I chair the Westminster Commission on Autism, and several people in this ghastly predicament are on the autism spectrum and have been taken totally out of care.

[Lucy Powell]

I thank my hon. Friend for raising that particular case, and I know the family are here today. The case has many of the hallmarks that we will come on to discuss.

We are now seeing a new generation of joint enterprise lifers in prison. The Supreme Court says it is

“the responsibility of the court to put the law right”.

But many of us have come to the conclusion that the criminal justice system will not right itself, and is not righting itself, in relation to joint enterprise, and that we need to act. That is why Members on both sides of the House have joined together to send a strong signal both to the Government and to prosecutors and others that the way in which we continue to apply the law and the incredibly high bar that has been set for previous unsafe convictions to be reheard need to be redressed.

[Graham Stringer (Blackley and Broughton) (Lab)]

I congratulate my hon. Friend on bringing this important subject to the Floor of the House. I have had reason to represent one of my constituents, Jace Ryan Smith, who was convicted and sentenced to 31 years under joint enterprise. He was doubly punished recently because he was not allowed to go to his grandmother’s funeral, not because of anything he had done wrong but because Greater Manchester police thought he may become a victim of another gang. Is not the real problem with joint enterprise that people are punished and given long prison sentences of more than 30 years for actions they did not carry out themselves?

[Lucy Powell]

I agree wholeheartedly with my hon. Friend.

[Chuka Umunna (Streatham) (Lab)]

Will my hon. Friend give way?

[Lucy Powell]

I will take one more intervention before making some progress.

[Chuka Umunna]

I am grateful to my hon. Friend for giving way. I reiterate that it is very good to see you back in the Chair, Mr Deputy Speaker.

I have two questions. First, following on from the point raised by my hon. Friend the Member for Blackley and Broughton (Graham Stringer), the statistics show that 37% of those serving long sentences for joint enterprise are black. That is 11 times the proportion of black people in the population. The figures for people of mixed race are similarly disproportionate, which underlines why it is essential that we have the review that my hon. Friend the Member for Manchester Central (Lucy Powell) calls for in the motion, which I fully support.

Secondly, given the uncertainty, surely we are seeing the courts acting, in effect, as legislators. That is wrong. Where there is uncertainty in the law, it is for this House to tidy it up, particularly where the law is visiting injustice upon people in the way we are seeing.

[Lucy Powell]

I wholeheartedly agree with my hon. Friend’s sentiments, and I will address some of that in my speech.

With hundreds of lifers in prison after being convicted under what the Supreme Court views as a wrong application of the law, this is potentially one of the biggest and most widespread miscarriages of justice ever to face our justice system. As such, I fear that the cosy club of the criminal justice establishment is closing in on itself to prevent this from ever being fully exposed.

What is joint enterprise? Joint enterprise has been applied in cases for more than 300 years, although it is a common law that has never been passed by Parliament. The doctrine allows for more than one person to be charged for the same offence, despite the fact that they may have played a different role, or no role, in the crime. Joint enterprise applies to all crimes, but in recent years it has been particularly used as a way to prosecute murder, especially, but not exclusively, in cases involving groups of young men.

This is obviously a very emotive issue, particularly for families of murder victims, and no one is suggesting that those who commit murder, or who knowingly and intentionally assist in committing murder, should not face the full force of the law. However, nor should the evidential bar for serious offences like murder be lower, by virtue of presence or association with the principal offender, as we have all too often seen.

Indeed, there are many cases, many of which I am sure will come to light today, in which people are serving life sentences when it is clear that they did not commit murder but were found guilty under the “old” or “wrong” law of parasitic accessory liability. Furthermore, many others who were convicted as secondary parties are carrying the same sentences as the principal based on a prosecution narrative of gang and association, even though intent and foresight are unproven and the secondary party was not physically present or had withdrawn from the scene.

When one looks at the profile of those convicted of murder, there is a further flaw in how the doctrine is applied. The majority are of black and ethnic minority backgrounds, and the vast majority are young, with many teenagers serving life for a secondary or parasitic role. I will say more, as will others, but we have to ask questions about the disproportionate use of such doctrines in cases involving certain communities.

The political context is also relevant to this debate.

--- Later in debate ---

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Order. I hope to give everybody 10 minutes. If Members intervene, the danger is that I will have to drop the time limit immediately.

[Lucy Powell]

I fully agree with my right hon. Friend the Member for Tottenham (Mr Lammy), but I will try to make some progress.

There was a political context when the joint enterprise law began to be overused and extended in its use during the 1990s and the noughties, but there is a different political context today. As my right hon. Friend has just said, we now more clearly understand the consequences of disproportionate and unfair applications of the law against certain groups. I am pleased the Government recognised that when they launched the Lammy review and in the Prime Minister’s recent comments on “burning injustices”—I hope she can live up to that rhetoric.

Practice and the law have been far too slow to catch up with the changing mood in the country. I will briefly discuss what the Supreme Court ruling does and does not say, and what still needs to be addressed. First, the ruling is clear that the law governing secondary liability has taken a “wrong turn” and has resulted in the “erroneous” application of the law. However, it also sets out that, in order for appeals to be heard “out of time,” a substantial injustice test, not the usual unsafe conviction test, will be applied. Yet the substantial injustice test was not clearly set out in the ruling and has never been set out by Parliament. The substantial injustice test has subsequently been tested through case law and is now an almost impossibly high bar for people to clear. That is why, nearly two years on, there has yet to be a single successful appeal awarded by the Court of Appeal.

Finally, in our opinion the Supreme Court failed to address another question put before it: does joint enterprise over-criminalise secondary parties?

What needs to change in the law—first, what needs to change going forward, and secondly, how can we put right some of the injustices of the past? It is clear that joint enterprise continues to be overused and is disproportionately used against groups of young men, particularly those from black and ethnic minority backgrounds. I saw that at first hand in a recent case in which 11 young black men from Moss Side faced charges of murder. Seven of them were convicted of murder and four were convicted of manslaughter. The youngest was only 14 and many of them were not previously known to the police. As research by Manchester Metropolitan University has shown in its study “Dangerous Liaisons”, more than half of all those serving life sentences are children or young adults, and more than half are from a black and ethnic minority background.

[Andy Slaughter (Hammersmith) (Lab)]

Will my hon. Friend give way?

--- Later in debate ---

[Lucy Powell]

I will have to make some progress. I am sure someone else will give way later.

The extensive research also found that the establishment had a gang narrative that often relied on neighbourhood narratives, racialised assumptions, unevidenced constructs and loose associations. Things such as social media tags and videos have been critical to securing many of the joint enterprise convictions. We know that there are serious flaws in this approach. That is why my right hon. Friend the Member for Tottenham has raised it in his review and why the Home Affairs Committee is looking into it. Indeed, joint enterprise cases continue following the Supreme Court ruling, albeit under new Crown Prosecution Service guidance, but that remains problematic.

We want the Government to look at three areas for future cases. The first is proportionality and whether joint enterprise is being used correctly or disproportionately against certain groups. We ask the Government to do what the Supreme Court failed to do, which is to establish whether joint enterprise over-criminalises secondary parties. Secondly, and related to that, we need the data. Collating the data about who is being charged and convicted, and where, is urgent now and long overdue. Thirdly, the long-awaited outcome of the review of the CPS guidance needs to be brought forward, and quickly. It must include clearer guidance for prosecution discretion so that lesser offences can be brought against secondary parties in many cases.

The final point is about retrospective cases and putting right the injustices of the past. We are not asking for automatic reopening of every single case. It is right that there must be a test, but the test is now so impossibly high that no cases have successfully been heard by the Court of Appeal, and the Criminal Cases Review Commission has yet to recommend that a single case should come back, despite having received 99 fresh applications and reviewing 90 more. Indeed, appeal judges seem utterly dismissive of these cases. Unlike in a usual appeal case, where the threshold is the possibility of an unsafe conviction, applicants in the case of the “wrong” law of joint enterprise are also required to demonstrate that, as well as being unsafe, had the correct law applied there “would” have been a substantial difference to the outcome. In most other cases, this would be simply that it “may” have done so. So we believe that the substantial injustice test needs establishing by Parliament in law, and it should make it clear that the threshold is “may”, not “would”.

Moreover, we think that the Court of Appeal should also be allowed to consider the ongoing effect of the conviction on the applicant and, critically, take account of the applicant’s age, mental health and other vulnerabilities at the time. The old, or wrong, foresight test now applied correctly to adolescents or those suffering with learning or mental difficulties would surely provide a substantial change to convictions. Today we would not expect an immature teenager or someone with learning difficulties to understand the old, weak foresight test.

I want the Government urgently to consider a mechanism for clarifying the threshold in these cases. Just to be clear, this is not about opening the floodgates, but if the law has been wrong for 30 years, during which time hundreds if not thousands of mandatory life sentences were handed out under the old wrong law, then it stands to reason that at least some—not a tiny, tiny few—of the cases are a clear injustice that the courts are currently failing to put right.

I think we can all agree today in the House that the law took a wrong turn. That now needs putting right. The establishment is evidently not putting itself right, so the Government and Parliament need to act. We urgently need a review of the use and scope of the prosecutions brought under joint enterprise, particularly its disproportionate use against young BAME men. We also need urgent clarification of the qualification for appeal so that we can put right decades of substantial injustices and unsafe convictions leading to many serving life sentences for murders they did not commit.

[Several hon. Members rose—]

--- Later in debate ---

[Lucy Powell]

Notwithstanding the Minister’s response, I think that everyone watching this debate can take away from Parliament the fact that there is a clear and unified view that the law has got it wrong and that the law needs to be put right. Judging by today’s debate, I suggest that there would be a parliamentary majority in favour of doing just that. In the meantime, I ask all who are watching—the prosecutors, the Appeal Court judges, the police and others—to start putting things right. We will consider, as a cross-party group, how to put further pressure on the Government and work with them to improve the situation.

I think that there is a clear consensus about proportionality, gangs versus groups, the CPS guidance—the initial interim guidance was problematic—and a wider homicide review. Critically, there is a broad consensus on the retrospective cases and the substantial injustice test, which would prevent unsafe convictions. It is critical that age, maturity, mental wellbeing and potential disabilities can be taken into account.

This has been an historic debate, and many people who are watching will feel its historic importance. We are not going to stop here. I hear what the Minister says, and I disagree with some of it. We will continue to press the Government to take further action.

Question put and agreed to.

Resolved,

That this House notes the Supreme Court judgment in the case of Jogee and Ruddock of February 2016 that the law on joint enterprise and parasitic accessory liability had been wrongly interpreted for more than 30 years; further notes that since that judgment, the number of cases brought under joint enterprise has remained unchanged; further notes that there have yet to be any successful appeals of cases from before February 2016; and calls on the Government to review the use of joint enterprise and to bring forward legislative proposals to clarify the law on joint enterprise.