Criminal Justice Bill (Third sitting)

Stephen Metcalfe Excerpts

Committee stage
Thursday 14th December 2023 Public Bill Committees

[Laura Farris]

Q What about bringing the age limit down to bring in children of 10, up to adulthood?

Nick Smart: Again, it relates to the accountability for everybody’s actions. It is not just older people who commit antisocial behaviour; it is often youth-related and it is linked to families. We welcome the provision allowing social housing providers to remove nuisance tenants, but we understand that they have an obligation to rehouse them, so it is not just about moving them from one place to another and the same behaviour happening. There has to be community safety partnership work to ensure that there is the health, education and social care provision to change their behaviour. Otherwise, you are just displacing the problem from one area to another.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

Q I would like to go back to the issue of knife crime, which I am particularly interested in. You mentioned clause 18, but are there any other measures in the Bill that will help to tackle knife crime? There was a recent national police initiative to tackle knife crime. Could you tell us how that went?

Nick Smart: On the powers, possession with intent is a really useful operational tool for officers. It is similar to firearms legislation, in which there is an offence of possession of firearms with intent to endanger life. Having an offence for knives with a similar intent is welcome. We have seen gangs taunting each other with knives on social media, on podcasts and things like that. Possession with intent is a welcome operational tool, used in line with intelligence and obviously monitored with the usual safeguards. Operationally it is very welcome, and if it saves lives we are all for it.

[Stephen Metcalfe]

Q Absolutely. And how did the operation go?

Nick Smart: I cannot comment on that, because I am not aware of it. I can get you a written response if you would like me to come back to you.

[Stephen Metcalfe]

Q That is fine. You said that the measures in the Bill are welcome. Are there any other measures that you would have liked to see in it that would help to tackle knife crime? I realise that it needs a holistic approach and that you need to work with others, but we can only give you the powers.

Nick Smart: The powers on sale and manufacture are welcome in addressing those who use social media such as Snapchat to sell knives to groups. The prohibited knives in a public place distinction is welcome. We have tried for some time to do that. For example, you have to prove three different elements to prove that something is a zombie knife, but now there is a provision in the Bill. I guess an aggravating factor that might be linked to the sentencing guidance is having that prohibited knife in your possession. Again, taking that into account in a court of law is welcome. The set of provisions around knife crime is very welcome.

[Alex Cunningham (Stockton North) (Lab)]

Q We have plenty of time, so I would like to read you a quote. In the first evidence session on Tuesday, I asked Nicole Jacobs, the Domestic Abuse Commissioner for England and Wales, what we could build on in the Bill. She said:

“Police-perpetrated domestic abuse related issues—and that means three key things to me. One is being more proactive about removing warrant cards if someone is under investigation for crimes relating to violence against women and girls or domestic abuse. The second is the specified offences that I believe should be listed that would constitute gross misconduct; again, I think they should be defined as domestic abuse, sexual harassment, assault and violence, so-called honour-based abuse, and stalking. The third is stronger provisions in relation to police vetting—requiring that every five years, and ensuring that if there is a change in force, police vetting takes place. Tightening up those provisions is not currently in the Bill and I think it should be.”––[Official Report, Criminal Justice Public Bill Committee, 12 December 2023; c. 24, Q55.]

Do you agree?

Nick Smart: If we take the last point first, vetting more frequently during an officer’s service is welcome, and if they change force, entirely appropriate. We agree with that.

On gross misconduct, if you permit me, I have some data to share. We are talking about not just domestic-based issues, but superintendents served gross misconduct papers in the past few years for various things. In 2018-19, 19 of our members were served and two sacked; in 2019-20, 19 were served and four sacked; in ’20-21, nine gross misconducts, two sacked; and in’21-22, 12 with one sacked.

What that shows about gross misconduct is that roughly 80% of officers who are served with gross misconduct papers have NFA—no further action—taken against them. We suggest looking at cases on a case-by-case basis and, if it involves serious wrongdoing, that should be a matter for the appropriate authority to look at a severity assessment and to make that assessment straightaway. We believe we find that a quarter of our professional standards departments go to gross misconduct almost immediately, and if 80% to 85% of officers have no further action taken when they are given those gross misconduct papers, that indicates to us that the severity assessment is wrong in the first place. If there is wrongdoing and it is clear, however, then gross misconduct papers should be served.

We would say, again, that at the merest hint of a suggestion, police professional standards departments serve a gross misconduct, but we think that there should be more of an investigation to establish the facts before gross misconduct papers are served. But where there is a clear chain of evidence that relates to an individual and wrongdoing, it is entirely appropriate, and we support gross misconduct papers being served.

--- Later in debate ---

[The Chair]

Q Do either of the Opposition spokesmen want to come back? No. Can each witness give me a couple of minutes on something you have not been asked about that you think ought to be in the Bill, or something you think is good in the Bill? Let us start with you, David.

David Lloyd: I am broadly supportive of the Bill. I am particularly interested in suspending short custodial sentences. I think that makes a great deal of sense and I would highly recommend that. I have covered the piece on nuisance begging and rough sleeping that I was interested in. As a real victims champion and someone who has pushed hard on violence against women and girls since 2012, the aggravating factor for murder at the end of a relationship and MAPPA for controlling and coercive behaviour is something that, again, I highly commend and think that we need to do.

The other thing I picked up from the earlier session was the question around vetting. We need to just consider whether we need to, in many ways, vet to values. We are clearly doing it more and more in our recruitment process, but it strikes me that there are very few officers who have met the criminal threshold and therefore are likely to have on their file a criminal conviction. That does not mean to say that we do not have misogynists or racists or homophobes within the organisations. We have much to do around that. We need to just think about what else we might be able to do to vet to values, so that we make sure we have police forces that are fit for the public. I think that the very vast majority are fit, by the way—I am not suggesting for one moment that they are anything other than that—but we might want to look at that quite closely.

Emily Spurrell: I echo some of what David said there about some of those challenges. To go back to the begging point, which is a wider issue and I know that it is linked with what is going through to the Sentencing Bill, there is a real emphasis and a real push to try to reduce the number of short-term sentences and we want more people in the community. I worry whether some of the provisions for the Criminal Justice Bill, such as the aggressive begging provisions, will actually see an increase in that, which is not what we want, and the two will work counter to each other. I would just say to be mindful around that.

As for some of the bits that David alluded to around vetting and some of the work that is under way to try and increase trust and confidence, there is probably scope to go further. I know there is work being done. The Mayor of London has been quite keen to push some of that and I think he has been working with Harriet Harman on an additional level of scrutiny around the ability to dismiss officers who have been convicted of serious criminal offences and more flexibility around pension forfeiture, for example. There is more scope to do more around that building of trust and confidence within policing in terms of that scrutiny.

Around the vetting, there is work under way. I am aware that there is a national project to try and increase vetting. Echoing what the superintendent said in the previous session, trying to make sure that there is that regular touch base, particularly when officers are crossing forces, is really helpful.

The only other thing I will say around that is that the big challenge we face is around how long these things are taking. It would not matter so much that people were going through a process if it was resolved quickly. Instead, we see some of the examples the superintendent was referring to, where officers accused of gross misconduct sit for years waiting for an outcome and then it gets an NFA or gets downgraded. There is a real challenge here around capacity in the system, both internally in professional standards and with the Independent Office for Police Conduct, and how we can speed up those processes so that we have a robust system that is not taking up so much time and taking officers off the streets.

My only other comment would be in relation to the introduction of the express power for the courts to direct prisoners to attend their sentencing hearings. You will obviously be aware that this came up quite strongly after Olivia was murdered on Merseyside and her family have been very clear about the insult to her mum and her family when the offender did not turn up to hear the victim’s personal statement. I really welcome this, notwithstanding some of the logistical challenges, because it is a really welcome change: offenders should be expected to listen to the impact of their crimes on their victims and their families.

Councillor Sue Woolley: Very briefly, and following on from the point that Emily just made, I would just make a point about the capacity issue, particularly around child sexual abuse reporting. We must be very careful that justice needs to be seen to be swift. What has been shown with various reports on child sexual abuse is that reports have been made but it is taking too long for those individuals—those young people—to be supported when they have then been taken through a process.

Therefore, although it is laudable and the right thing to do to ensure that reports are made in a timely fashion, let us make sure that we have the capacity at the other end to be able to support those young people.

[Stephen Metcalfe]

Q I recognise that you are strategic rather than operational, all three of you. However, as you may have heard in the previous session, I am particularly interested in knife crime, as I am sure all of you are, as well. Are you content that the provisions in the Bill and the powers that they confer will make a difference in tackling knife crime? Is there anything else that you would have liked to have seen in the Bill to assist you in representing—well, in the case of the PCC, the people who elect you, and of course you, Sue, although I am sure that all of you are equally concerned about knife crime?

Emily Spurrell: From my perspective, the way that we tackle knife crime is actually not through the criminal system; I think it has got to be through that early intervention space. I welcome the provisions in the Bill. Again, the comments made by the superintendent about better provision for identifying zombie knives, getting weapons off the streets and strengthening things like the sale of knives, which has been done in recent months, is all very welcome. But for me, it comes down to that early intervention space: the investment in youth services. The work we are doing on violence reduction units, for example, which is being led by PCCs, is very positive. I will say that it needs to come with long-term, stable funding.

The Minister will have heard me say that many times before, but it is something that we really need, because that long-term, public health approach is how you really tackle knife crime, although I think the provisions in the Bill are very welcome, just in terms of giving police that extra ability to seize those weapons and identify those individuals who are likely to pose a threat.

David Lloyd: I agree entirely. Clearly, I am not operational, so to that extent I do not know. But clearly there is a fear of knife crime among the public. We do need to do something about that. And zombie knives and the work of one of the members of this Bill Committee on them is noted.

However, it strikes me—this relates to Emily’s point—that there was a case some years back, where 80% of the bladed injuries in a hospital in Buckinghamshire were not known of by the police, because there is not the sharing of data between health and the criminal justice system. In many ways, if we want to get up the line, we need to be able to find where some of these problems are happening, and better sharing of data might do a lot more than even some of the provisions in this Bill.

Councillor Sue Woolley: I suppose that what I would say to you is that I would probably like to take one step back and go a little bit more upstream, and probably not see knives getting on to the street in the first place. That may mean taking out the ability to order one through the post, as it were, etc. I would feel more comfortable if they were not there in the first instance.

From the council’s point of view, we would therefore plead that trading standards is the obvious arena for making sure that that happens. Anything that supports trading standards officers to be able to take those weapons off market stalls, etc. would be very helpful.

Emily Spurrell: I will just add one other point on the police powers. Again, we always have a balance to strike. We welcome giving the police the tools to do the job better, but this is where our role as scrutineers is really important, so that we make sure that where they are using those additional powers, they are being used in a fair and proportionate way. That is very much something that we would look to focus on as well.

[Stephen Metcalfe]

Q Sue, you mentioned trading standards. Are you saying that you do not think they do have the powers? As a constituency MP, I have reported to the police the sale of these knives. They have then got trading standards involved, and trading standards went and seized vanloads of this stuff.

Councillor Sue Woolley: Sorry, I am not saying trading standards staff do not have the power. I think, again, it is a capacity issue. We could do with 10 times the number, and that would go a long way towards stopping these knives getting on to the streets in the first place.

[Andrew Jones (Harrogate and Knaresborough) (Con)]

Q May I pick up on a point that you made earlier, Councillor Woolley? It was about rough sleeping. You mentioned that this is often about dealing with people with very complex issues; often, having access to addiction services is critical, and progress is made by different agencies working together. I agree very strongly about how making progress and helping those on our streets is most important. Do the provisions in this Bill help or hinder that work?

Councillor Sue Woolley: It helps, but more could be done. On the duties, it would be good if we could have language that said, “We expect, as members of the public, that you will work together.” It would be good if the language, rather than telling various agencies, “You have to do this and you have to do that,” was, “Our expectation is that as organisations, in the first instance, you will work as a team, as a community safety partnership.” If you work as a partnership, everybody has an equal responsibility, and that is the bit that I would really like to see emphasised.

David Lloyd: To underline the concern that I had earlier, there is a real danger, if it is seen that the police have the power to do something about homelessness or rough sleeping, that it might be left for only the police to pick that up. In Hertfordshire, we really believe in, and the whole of our policing is based on, prevention first. In many ways, it would be best if we did not have to use the police at all and everything was done further up the line. I think that if we end up at a point where councils can say, “Well, this is not entirely our responsibility; the police have a responsibility for it,” there is a danger, in the same way as with mental health.

We had the issue with mental health authorities not picking up the issue of people who were mentally unwell. It ended up with the police doing far too much and mental health nurses not enough. I fear that, especially in a time of tight budgets, we may well find that this is pushed more towards the police, so we just need to recognise that. It might be that by working even better through community safety partnerships we get over it. But it is better to go in with our eyes open to it.

Criminal Justice Bill (Second sitting)

Stephen Metcalfe Excerpts

Committee stage
Tuesday 12th December 2023 Public Bill Committees

[Vicky Ford]

Thank you.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

Q I have a question for Harvey—a point of clarification, really. You mentioned that you did not think that there was any need to increase the sentence for shoplifting; you thought that it just needed to be applied more uniformly. Is that right?

Harvey Redgrave: I suppose it is more about saying where I think the priority should be. I do not have a particular problem with increasing sentences for shoplifters; it is just that I do not think that that is where the biggest challenge is.

[Stephen Metcalfe]

Q I think the Minister started by asking about the creation of a new stand-alone offence of assaulting a retail worker. By association with your previous answer, do you think that that is unnecessary, or do you think it would be a helpful deterrent?

Harvey Redgrave: I think it is fine; I do not have a problem with it. I am broadly supportive of it, but I do not think it will act as a particular deterrent when we are not catching enough shoplifters to begin with. That would be my slightly—

[Stephen Metcalfe]

Q Sorry to interrupt, but are you saying that all assaults on retail workers tend to be associated with shoplifting?

Harvey Redgrave: Yes.

[Stephen Metcalfe]

Q Thank you. Rebecca, can I follow up on Vicky Ford’s question? You made it clear that opposition to reducing the age to 10 was not unanimous. There were some people who thought that 14 might be more appropriate. Were there any who thought it should go up?

Rebecca Bryant: No.

[Stephen Metcalfe]

Q So it is really just a question of finding the right level. Is that correct?

Rebecca Bryant: Yes, I think so. When I say it was not unanimous, I am saying that a few members said that they agreed with 10. The vast majority said that they did not.

[Stephen Metcalfe]

Q Okay. The problem is that between the ages of 10 and 16 there is a vast range of maturity, shall we say. Presumably, if some discretion were exercised, it might well be an appropriate measure for some 10-year-olds but not for others. Would you agree?

Rebecca Bryant: I would suggest that if the behaviour were serious enough to warrant a CPN at the age of 10, there would be other significant issues within the family environment. You would be looking at a huge range of interventions. Unless a particular scenario is presented, it is quite difficult to say what type of intervention you would try in order to reduce or stop the antisocial behaviour, but I do not want to get away from the point that early intervention and prevention work. If we invest in early intervention and prevention, you would expect antisocial behaviour cases involving young people to reduce. The enforcement side would therefore become less necessary.

[Stephen Metcalfe]

Q Finally, with an understanding of everything that you have just said, do you think that the measure proposed will be detrimental, or is it just unnecessary?

Rebecca Bryant: I think it is unnecessary, and I think you will find it is very rarely used. There are other enforcement tools and powers available for young people that are also rarely used, because the focus of the sector is very much on early intervention, prevention, restorative justice and community remedies. There are all sorts of other tools that are perhaps more appropriate, particularly for dealing with young people who are on the cusp of causing antisocial behaviour.

[Stephen Metcalfe]

Thank you very much.

[Alex Cunningham (Stockton North) (Lab)]

Q Rebecca, I am really interested in the stuff about 10-year-olds. You said that if there were a situation in which one of these orders would be applicable, there would be other issues in that child’s life that were affecting their behaviours and everything else. What would be better than imposing this sort of order on a child of 10?

Rebecca Bryant: Look at how we respond to antisocial behaviour. It is a partnership response—things like Supporting Families, which used to be Troubled Families, and those types of interventions and support provided to the whole family, which are trauma-informed and understanding of adverse childhood experiences, and recognise that behaviour is often a symptom of something happening within the family environment. We should be taking a whole-family approach, rather than looking at a young person, a 10-year-old, as an individual on their own. There is something there about the drivers of why that young 10-year-old is behaving in the way that they are. It is much more complex than focusing on a specific incident perpetrated by a child at the age of 10.

Criminal Justice Bill (Fifteenth sitting)

Stephen Metcalfe Excerpts

Committee stage
Tuesday 30th January 2024 Public Bill Committees

[The Chair]

I agree. I do not think the microphones are doing a very good job today, so I will try to speak up.

New Clause 5

Sexual interference with a corpse

“(1) The Sexual Offences Act 2003 is amended as follows.

(2) After section 70, insert—

‘70A Sexual interference with a corpse

(1) A person “P” commits an offence if—

(a) P intentionally performs an act of physical interference with the body of a dead person, and

(b) the physical interference is sexual.

(2) For the purposes of this section, physical interference may include—

(a) P touching the body of a dead person with any part of P’s own body, and

(b) P causing any item or substance to make contact with the body of a dead person.

(3) A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 10 years.’”—(Stephen Metcalfe.)

Brought up, and read the First time.

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

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

This new clause, tabled in my name and the names of my right hon. Friend the Member for Tunbridge Wells (Greg Clark) and my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch), is a distressing one, and I apologise in advance for any upset that my speech causes, either in this Committee Room or to those who may read the Hansard report. I know that the Minister has been discussing the matter with my colleagues, who are more versed on the issue, and I know that the shadow Minister has been briefed, so I will not go into more detail than is necessary for the purpose of moving the new clause.

In 2021, David Fuller was convicted of the historic murder of two young women in Tunbridge Wells following a cold case review that eventually led to his identification. In the course of the police gathering evidence for his conviction—for which he received a whole-life tariff—video recordings were recovered of Fuller, who was an electrician at the Maidstone and Tunbridge Wells NHS Trust, that showed him sexually assaulting the dead bodies of women and girls in the hospital mortuary.

There were more than 100 female victims of Fuller’s abuse, ranging in age from nine to 100. He received convictions for sexually penetrating corpses, which under current law carries a maximum sentence of two years in prison. However, the evidence gathered by the police showed that Fuller also seriously sexually assaulted victims in a non-penetrative way—I will not go into the details here for it to be clear as to what is meant by that.

Unfortunately, the current law only applies to penetrative assault and does cover any form of sexual assault that is non-penetrative. Fuller committed heinous acts such that, had the victims been alive, he would have been convicted and sentenced to lengthy terms of imprisonment for each offence, but as they were sadly not alive, he was not. There is clearly a loophole in the legislation that I am sure everyone will agree needs to be closed; that is what the new clause aims to do.

The new clause creates a new offence of sexual interference with a corpse and provides for a maximum sentence of up to 10 years’ imprisonment—which I, my colleagues and, I hope, the Committee agree would be fitting for such a disgusting crime. I know that the Minister is meeting my colleagues soon, so I will not press the new clause to a vote, but I suspect the Committee would be very keen to hear the Minister’s response and a commitment to amending the legislation.

Victims of Fuller had already been robbed of their lives. Fuller then robbed them of their dignity, and then suitable justice. The hurt, distress and damage done to the families of Fuller’s victims is immense. They had the unimaginable shock of being told what that vile man did to the bodies of their loved ones—their daughters, sisters, nieces, aunts, wives, mothers and grandmothers—when they were in the protected space before they were laid to rest. I do not want to think there will be future cases like that, but if there are, I hope we can make a difference by making sure that such acts are crimes and providing sentences that fit their gravity.

--- Later in debate ---

[Laura Farris]

Thank you, Mrs Latham. I am grateful for the opportunity to speak about the new clause. I hope people can hear me this time.

It is actually quite rare in this place that we find that there is a crime that is not reflected at all in the law. This is one of those examples. It follows the truly disgusting offending by David Fuller. I want to start by acknowledging the experience of his victims’ families and how distressing it has been for them. I thank my hon. Friend the Member for Chatham and Aylesford and my right hon. Friend the Member for Tunbridge Wells for their work on this matter.

The Government have been reviewing the sexual penetration of a corpse offence in section 70 of the Sexual Offences Act 2003, which currently carries a maximum penalty of two years’ imprisonment following conviction on indictment, and we agree that there is a gap in the law. Section 70 applies only to sexual penetration of a corpse, so any form of sexual touching falling short of penetration is not currently a criminal offence. The Government have therefore concluded that the criminal law should be expanded to include non-penetrative sexual activity with a corpse.

The Government have also concluded that the current statutory maximum does not adequately reflect the harm caused by an offence of this nature, and that it should be increased from two years’ to five years’ imprisonment. We therefore support my right hon. and hon. Friends’ laudable aims in tabling their new clause.

In the interests of completeness, I will set out why we cannot accept the new clause as drafted. It would not repeal section 70 of the Sexual Offences Act but would create a new offence, in proposed new section 70A, with a higher maximum penalty than the behaviour already covered by section 70. It would also introduce the concept of interference with a corpse. With respect, we say that is unnecessary, because touching is already defined in section 79(8), and we think that section can be expanded and read across to apply to victims in the circumstance we are discussing. Introducing a new concept of interference, which could arguably be interpreted differently, could lead to confusion in the prosecution of the offence, which we think is not necessary.

In addition, the offence in the new clause as drafted does not require the offender to know or be reckless to the fact that what is being interfered with is a dead body. We think the mental element of the offence is important so that we capture those who are genuinely committing a criminal offence.

Again, I thank all the Members who have spoken on this matter, particularly my right hon. Friend the Member for Tunbridge Wells and my hon. Friend the Member for Chatham and Aylesford who have been to see me. They continue to make efforts on behalf of their constituents who have been so badly affected by this uniquely disgusting and horrific crime. We support the intentions behind the new clause, and I look forward to working with hon. Friends to find a way to bring forward the necessary legislation in this Bill. With that reassurance, I urge my hon. Friend to withdraw his new clause.

[Stephen Metcalfe]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 16

Complicity in joint enterprise cases

In section 8 (abettors in misdemeanors) of the Accessories and Abettors Act 1861, after “shall” insert—

“, by making a significant contribution to its commission,”.—(Peter Dowd.)

This new clause would clarify the definition of ‘joint enterprise’ (or secondary liability), so that an individual must make a “significant contribution” to an offence committed by another to be criminally liable.

Brought up, and read the First time.

[Peter Dowd (Bootle) (Lab)]

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

It is a pleasure to see you in the Chair, Mrs Latham.

New clause 16 mirrors the Joint Enterprise (Significant Contribution) Bill introduced by my hon. Friend the Member for Liverpool, Riverside (Kim Johnson) in attempting to amend the Accessories and Abettors Act 1861. It clarifies that a person must make a significant contribution to a crime to be guilty of it. The private Member’s Bill, which has cross-party support, will have a Second Reading debate on Friday 2 February. The 1861 Act states that those

“who aid, abet, counsel or procure the commission of ”—

an offence—

“…shall be liable to be tried, indicted, and punished as a principal offender.”

However, the doctrine of secondary liability or joint enterprise, as it is more commonly known, is still older. Through common law, developed by the Court, “aid” or “abet” has now shifted to “assist” or “encourage” for establishing secondary liability. In many situations, this test is entirely reasonable. Most people would agree that an armed robber at a bank heist gone wrong, for example, can be deemed as culpable as their partner who actually shot a person, because they make a significant contribution to the crime by carrying or supplying a gun and threatening the cashier, for example. The problem, according to many legal experts, is that joint enterprise laws are sometimes used in a much wider way, often to convict people who have made no significant contribution to the crime at all. Campaigners have long warned that these laws can be used as a racist dragnet to maximise convictions.

Recent Crown Prosecution Service data, recorded and released as a result of legal action by Liberty and the campaign group Joint Enterprise Not Guilty by Association, suggest that black people are 16 times more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws, yet no assessment of the reasons for this shocking statistic—and it is shocking—has been made by the Crown Prosecution Service, or, as I understand it, by the Government.

In 2016, the Supreme Court, in the case of R v. Jogee, said that the law on joint enterprise had taken a “wrong turn” for more than 30 years. It restored the proper law of intentions so that those who intended to commit or assist a crime, rather than those who only might have foreseen it, could be properly convicted. That was, as the BBC said, a moment of “genuine legal history”. Research by the Centre for Crime and Justice Studies identifies that the judgment has had little to no effect from joint enterprise changes, charges or convictions, and the Court of Appeal has decided that prisoners whose juries had only been directed to consider foresight, rather than intention, should not have a retrial. The situation is gravely unjust for many prisoners, and my hon. Friend the Member for Huddersfield (Mr Sheerman) tried to address it in his Criminal Appeal (Amendment) Bill.

It is a myth that the Supreme Court fixed joint enterprise in 2016. It left under-addressed what constitutes “assist” or “encourage”. There is currently no threshold or test for whether someone made a significant contribution to a crime to be convicted of it. That flexibility gives rise to uncertainties and injustice. For example, joint enterprise laws are being used to convict young people who are seen fighting, but not with the victim; young people who are not present at the scene; women who have no control over their boyfriends’ conduct; and young people who listen to certain kinds of music, where trials focus on character and culture rather than on contribution to a crime. In the recent case of Fiaz, the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Unfortunately, the Supreme Court declined to hear that case, so it falls to Parliament to enact safer legal frameworks.

What would the new clause do? It would simply add weight to the words of the 1861 Act, inserting:

“by making a significant contribution to its commission”

and thereby enshrining in statute a common-sense safeguard against inappropriate or over-zealous prosecutions. That is an important principle in a fair and effective justice system. By clarifying that someone must make a “significant contribution” to an offence in order to be criminally liable, the new clause seeks to restore Parliament’s original meaning and to correct a second wrong turn by the court with respect to joint enterprise. That would help to ensure that persons who make no significant contribution to a crime are never again convicted of being complicit in that crime.

Of course, that would not prevent the use of alternative charges in cases involving multiple accused persons, nor would it prevent the prosecution of multiple persons for a crime in which they all made a significant contribution. It would not help anyone who is already convicted under this doctrine—I referred to the Bill introduced by my hon. Friend the Member for Huddersfield—but it would be an important step in preventing the unfair and unjust use of joint enterprise laws against innocent people in the future. I understand that there may be some objections; as far as I am aware, the Government have not made any formal response to the proposed change but have let it be known that they are potentially resistant to the idea. I hope that the Minister's response to the Committee will clarify any of those objections.

In my view, it would be hard to object to the new clause on the grounds of unintended consequences as to do so would be an acknowledgement of the belief that some people deserve to be found guilty of offences—sometimes very serious offences, such as murder—despite making no significant contribution to the commission of those offences. As such, Ministers may claim that the amendment is unnecessary on the grounds that our current laws—whether “aid” or “abet” in statute or “assist” or “encourage” in common law—already imply a significant contribution or that the current flexibility of the law is part of its strength, as it means that it is for the jury to weigh up and decide on the facts of a particular case.

That is not the case according to Dr Felicity Gerry KC, who was lead counsel in the Jogee case. She described the following generic examples, all of which are 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 an area where a stabbing occurs, but that 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 had no contact with the victim and have no weapon, putting them all in risk of being convicted, without separating those who contribute and those who do not contribute; autistic children who find it difficult to assess what others will do; children exploited to sell drugs who get caught up in the actions of others; a woman whose violent boyfriend gets angry with some people and runs after them around a corner—she follows a short while later and pulls another person’s hair when she thinks he is being attacked; and a woman looking for her shoes during violent disorder.

All those scenarios describe circumstances in which people can be convicted of serious crimes, despite making no significant contribution to that crime, so it is not correct to claim that “significant contribution” is already implied by law—it is not.