Joint Enterprise

Stuart C McDonald Excerpts

Thursday 25th January 2018 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I congratulate the hon. Member for Manchester Central (Lucy Powell) and her colleagues. They deserve great credit for raising this important matter, and for posing a number of challenging questions.

The consequences of the Jogee decision include, of course, uncertainty and distress for victims and relatives who now wonder whether those who have been held responsible for violent crimes against them will have their cases reopened and their sentences quashed. The right hon. Member for Sutton Coldfield (Mr Mitchell) and the hon. Members for Sunderland Central (Julie Elliott) and for Hammersmith (Andy Slaughter) rightly reflected on that. On the other hand, we are all agreed that the so-called wrong turn in the law means that there have undoubtedly been many miscarriages of justice, and people have been convicted and sentenced for crimes far graver than those for which they should have been held responsible. As we know, thanks to the excellent work of the right hon. Member for Tottenham (Mr Lammy), serious questions have been raised about its disproportionate effects on young men from black and minority ethnic communities.

Members who are far more qualified than me—including the hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee—have explained why the decision of the Privy Council in the 1985 case of Chan-Wing Siu was wrong and was required to be “corrected” by the Supreme Court. For me, that correction raises three discrete questions.

It is clear that the law after 1985 has been wrongly applied, and that that has resulted in real injustices. The first question to ask is whether the law on joint enterprise and parasitic accessory liability is now operating as we want it to. How should the criminal law respond when a person engages in a joint enterprise with a principal who goes on to commit a more serious offence outside the scope of that enterprise? I think that, on paper, the Jogee decision is better than what was in place previously, but Members on both sides of the House have raised concerns about whether it is operating effectively in practice, or as Parliament would wish. The hon. Member for Brentford and Isleworth (Ruth Cadbury) gave appalling examples of judicial reasoning that gave real cause for concern.

The situations in which joint enterprise might arise, and the different views of culpability, are many and varied. A number of Members have focused on the effect on young people and gangs in particular, and we have heard powerful arguments for reform, especially from the hon. Member for Ealing North (Stephen Pound) and the right hon. Member for Tottenham, but joint enterprise arises in many other circumstances. We therefore need to seek a solution that can respond adequately to all the different facts and circumstances. Sentencing is a related issue. Does the application of mandatory sentences in some cases mean that punishments cannot reflect the different levels of culpability of principal and accessory in certain circumstances, and might that, too, require reform?

There are also serious questions to be asked about appeal rights, about which the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) spoke eloquently. If the decision in the 1985 case had been in statute and reflected the will of Parliament, and if it had then simply been amended or replaced in 2016, there would have been no possibility of a right to appeal for those convicted between those times. As the right hon. Member for Tottenham said, however, common law is very different. The Supreme Court is saying that the law was applied wrongly by the courts, and that people have been convicted of crimes that they did not commit. It cannot possibly be right that no challenges to those convictions have been successful. There is a strong case for saying that the bar for appeals against such decisions has been set too high.

These are difficult decisions. It has been useful for Members to be able to air their views, but I cannot help agreeing with the Chair of the Justice Committee that a thorough and comprehensive review is required. That work is urgently needed if we are not to return to this issue in the very near future.