Joint Enterprise (Significant Contribution) Bill

Debate between Florence Eshalomi and Kim Johnson

2nd reading
Friday 2nd February 2024 Commons Chamber

[Kim Johnson]

I do, and I will come to that point later in my speech.

I thank the cross-party sponsors of my Bill, notably the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the esteemed Chair of the Justice Committee. His support throughout this process has been invaluable and has demonstrated clearly the potential of the Bill to create cross-party consensus.

[Florence Eshalomi (Vauxhall) (Lab/Co-op)]

My hon. Friend is making a powerful speech. She mentioned the hon. Member for Bromley and Chislehurst (Sir Robert Neill). His support shows the cross-party support for looking at how a majority of our young people are wrongly criminalised and locked behind bars, and their lives thrown away. Does she agree that this Bill is important, and that we should take the criminalisation of young people away from party politics?

[Kim Johnson]

I totally agree with my hon. Friend’s point about the criminalisation of our young black people. We need cross-party consensus.

Lastly, I thank my A-team, Becky and Charley, who have been truly amazing.

Before I begin my arguments, I recognise that this is an incredibly difficult and sensitive topic, because behind each joint enterprise case there are victims of crime and their families, many of whom have lost loved ones in situations that most of us find difficult to comprehend. Behind each joint enterprise miscarriage of justice there are people—loved ones, whole families—whose lives have been torn apart by an unjust lifelong sentence where someone has been wrongly punished for the crime of another.

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[Kim Johnson]

The hon. Member makes some valid points, and these issues have been raised by the campaign groups. Life has meant life for people prosecuted under joint enterprise—often 27 years and upwards, but starting with 14 years. This is the miscarriage that we are looking at.

I want to give some examples. Jordan Cunliffe was 15 years old and awaiting a double eye transplant at the time he was accused of complicity in a joint enterprise murder. His mum Jan is in the Gallery today. Jordan was nearly totally blind and unable to see the incident or to run away. Despite the confession of two boys who were directly involved in the struggle that led to the death of the victim, the judge charged Jordan along with four others, leading to a life sentence for a crime he did not commit.

When Tommy was sentenced for life for joint enterprise murder, the judge told the courtroom, including his mum Lisa, who is in the Gallery today:

“remarkably there is no evidence. I can’t say you were at the scene or you carried a knife. There’s no DNA, no eyewitnesses. I don’t have a role for you. But I’m going to sentence you on a secondary role and give you an 18-year mandatory sentence”.

At the time of his conviction, Tommy was 20 years old.

Dean Winston was sentenced to life in 2014 for joint enterprise murder. His mum, Bee, is also in the Public Gallery today. Dean was 19 when he was sent to prison for 24 and a half years. Despite the confession of his co-defendant, Dean received a longer sentence than the man who committed and admitted to the murder.

Those are just snapshots of wrongful joint enterprise convictions, from JENGbA families who have campaigned for well over a decade to bring to light this grey area of the law. In their own words, this is a miscarriage of justice on the same scale as the Post Office Horizon scandal. People are being sent to prison for crimes they did not commit.

[Florence Eshalomi]

I thank my hon. Friend for high-lighting some of those cases. One of the other issues with joint enterprise is that we have seen young women and girls criminalised for the actions of their boyfriends. If we are honest, in some of those cases—this is an issue that I have campaigned on—a number of those young women and girls are coerced or are being exploited, including sexually exploited, by those men. Is this not why we need a change, so that we are not destroying those women’s lives? Sadly, this is not just about young men; it is also about a number of young women who are being criminalised and sentenced for crimes they did not commit.

[Kim Johnson]

I thank my hon. Friend for those comments. I totally agree, and I will cover some of that later in my speech.

With joint enterprise, it is often children or young people who are being put away for life. Felicity Gerry KC, who is also in the Public Gallery, has been instrumental in challenging the way joint enterprise legislation is misused, especially in her role as lead counsel on the landmark 2016 R v. Jogee case at the Supreme Court, and has helped every step of the way with this Bill.

Dr Gerry has provided some joint enterprise examples, all 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 another area where a stabbing occurs, and the 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 no contact with the victim and have no weapon; children exploited to sell drugs who get caught up in the actions of others; and even a woman looking for her shoes during a violent disorder.

In the debate on new clause 16 on joint enterprise in the Criminal Justice Bill Committee on Tuesday, my hon. Friend the Member for Birmingham, Yardley (Jess Phillips) mentioned another case, in which a woman who was a victim of domestic abuse was charged under the crime of joint enterprise and, because she pleaded not guilty, received a longer sentence than the person who abused her and actually pulled the trigger and killed someone.

I am sure the Minister will share my concerns about the way joint enterprise has been used in those cases. I would be happy to write to him with details, if he would find it helpful to follow them up. I hope he will come to the same conclusion that I have: that the new law needs to change and we must therefore take the opportunity before us today.

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[Kim Johnson]

I welcome my hon. Friend’s contribution; that is exactly what the Bill is intended to do.

To illustrate my point further, I shall turn to the 2010 Victoria station attack, which the Under-Secretary of State for Justice, the hon. Member for Newbury, referred to in Tuesday’s debate at the Criminal Justice Bill Committee. In that incident, a group of young men chased and then attacked another young man, who was repeatedly stabbed and died. The coroner could not determine who had struck the fatal blow, so the whole group of assailants were put on trial and a number were convicted of murder and of manslaughter. They were clearly making a significant contribution to an awful crime.

Another commonly cited case is that of the racist killers of Stephen Lawrence. Again, there was damning evidence that the many accused did play an active and intentional role in his murder. My revised Bill would allow for their joint enterprise prosecutions. Another recent high-profile case concerns the murder of a young woman in Warrington. Both defendants were successfully, and correctly, prosecuted under joint enterprise.

My Bill is intentionally drafted to allow the use of joint enterprise laws in such cases to prosecute multiple defendants, where there was clearly evidence of a significant contribution by the accused to the death of the victim. It will be for the courts to decide in each case what constitutes a significant contribution, and it will form a basic legal test alongside many others used by juries to aid in their deliberations and protect against miscarriages of justice, while upholding the law as it is intended.

In response to the joint enterprise amendment on Tuesday, the Minister recognised the importance of the law on joint enterprise and the consequences that result from convictions on which both she and I find common ground. Ultimately, however, she was unable to support the new clause, saying:

“We think that it is too difficult to require the prosecution to prove a significant contribution”.—[Official Report, Criminal Justice Public Bill Committee, 30 January 2024; c. 485.]

Following that, I was grateful to meet the Minister yesterday to discuss the issues raised at the Bill Committee regarding the language of “significant contribution”. She reiterated her concern that “significant contribution” could prove too difficult a legal test for the prosecution. In particular, she referenced cases where contribution to a crime is difficult to prove and where, with multiple assailants, it is impossible to tell who dealt the final blow that caused the death of the victim.

Although I recognise the Minister’s trepidation, I find that a disturbing and worrying argument that amounts to an admission that, within our legal system, there is an area where we do not believe it is necessary to prove that a person must have made a significant contribution to a crime before locking them up and throwing away the key—and, indeed, that the Government are content with this state of affairs. It removes the burden from the prosecution to prove guilt and instead places the burden on the defendant to prove innocence. No other area of our law reverses that principle, and I hope the Minister will clarify the Government position on that and reconsider.

I find it confusing that a 14-year-old stabs and kills a young girl in Liverpool, is charged with murder and sentenced to life to serve a minimum of 13 years, while the young men mentioned throughout my speech did not commit a crime yet have been issued life sentences. Joint enterprise allows the prosecution to use a racist gang narrative to imply guilt and persuade juries using prejudicial stereotypes in place of cold, hard evidence.

[Florence Eshalomi]

My hon. Friend will be aware that the Crown Prosecution Service conducted a six-month trial that looked at the racial bias, after legal challenge from campaigners, and the results were stark. In 190 cases, involving more than 680 defendants, the CPS found that it disproportionately impacted BME men and children aged 14 to 17, and that a whopping 93% of joint enterprise defendants were male. That shows that this law, as it is being used now, disproportionately impacts too many young black men.

[Kim Johnson]

I thank my hon. Friend for her intervention; I will address that point about the CPS a bit later.

Last year, the human rights groups Liberty submitted one such case to the Criminal Cases Review Commission after 11 defendants, all black, were collectively convicted and sentenced to a total of 168 years in prison for a single murder. Evidence included a rap video made online a year earlier, photos of some of the defendants using hand signs, and the alleged favouring of the colour red. In that and similar cases, the prosecution called police officers as experts to give their opinions on alleged gang culture, a concept that carries with it racist stereotypes intended to sway a jury.

I believe that my Bill is the right approach. If there is no evidence of a significant contribution to a homicide, how can it be right that we prosecute for a mandatory life sentence? It is precisely this justice gap that systematically drives prosecution and conviction based on inference, stereotypes, gang narratives and the criminalisation of culture as a replacement for cold, hard evidence. It will be up to the jury to decide whether someone has made a significant contribution to a crime, and if a person played a part in a fight in which someone was killed, the test will clearly be met for significant contribution. I urge the Minister to consider this carefully and, when he responds, explain to me and the families sitting in the Gallery how we can justify continuing to lock people up when we cannot prove that they made a significant contribution to a crime.

It may surprise the House to note that the CPS case management system does not currently enable joint enterprise cases to be flagged. However, in September last year the CPS reported on a six-month pilot project, forced by a legal challenge by JENGbA and Liberty. In my meeting with the Minister and her team yesterday, I was grateful to hear about the progress being made by the CPS in this area, and that by the end of this month the CPS hopes to have in place systems to flag joint enterprise cases, so we will be able to analyse the data. I was also pleased to hear more about the national scrutiny panels. I have written to the Director of Public Prosecutions to discuss the work further. It was definitely encouraging to hear that more work is being done in this policy area. It shows that it is widely accepted that there is an issue that needs to be challenged. Parliament has a key role to play in that.

Data from the six-month CPS pilot reveal that more than half those prosecuted under joint enterprise were under 25 and that black people are 16 times more likely to be prosecuted for homicide or attempted homicide under joint enterprise laws. Young working-class and black boys are being sentenced for longer than they have been alive for crimes that they made no significant contribution to. It is truly astounding that nothing has been done about this sooner; it is a stain on our system and must be stopped.

On that note, I am grateful to have received support from the UN Working Group of Experts on People of African Descent, which has raised concerns about the impact of joint enterprise. I take the opportunity to read out a statement the group sent to support my Bill: “The Working Group of Experts on People of African Descent confirms the critical importance of the Joint Enterprise (Significant Contribution) Bill towards addressing the treadmill of convictions that young people of African descent are disproportionately subjected to in the United Kingdom. The Bill needs to apply retrospectively to remedy the injustices perpetrated by the law, which is directly in conflict with people.”

It is a testament to the years of campaigning by the families that we have now received this recognition of the injustice of joint enterprise by the UN working group, and I truly believe it is a case of when, not if, this legislation will be amended and put right. I hope that the Minister will help today by taking a further step in the right direction. While data is scarce, the full scale of joint enterprise remains as yet unknown. The pilot study undertaken by the CPS last year indicates that more than 1,000 people are tried every year for joint enterprise, at a time when we have record backlogs in the courts and our prisons are dangerously overcrowded. Parliament must take urgent action to end the over-zealous application of joint enterprise prosecutions and sentencing. To conclude, a miscarriage of law is a miscarriage of justice. As I have laid out today, there is a cross-party concern and there are serious questions about the letter of the law.