Joint Enterprise

Robert Neill Excerpts

Thursday 25th January 2018 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

I join every other Member in welcoming you back to the Chair, Mr Deputy Speaker.

I congratulate the hon. Member for Manchester Central (Lucy Powell), my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) and the right hon. Member for Tottenham (Mr Lammy) on securing this debate. I wish to speak for several reasons. First, as Chair of the Justice Committee, I think it is important that we keep this matter under review. The Committee has given some consideration to this matter in the past, and no doubt we will again.

Secondly, throughout my adult life, I have been a practising barrister. I concern myself very much with the justice system because it is something of which I am part and in which I believe. A belief in that system was one reason why I came to this House. It is massively important that it does what it is supposed to do—that it does justice and that we get it right. Where we fail to get it right, we should not be afraid to say so.

Thirdly, I have a constituent—I think their partner is in the Public Gallery today—who is serving a life sentence, with, I think, a 23-year tariff, as a result of the application of the joint enterprise principle to a case of murder. He made no bones about the fact that he had been party to an offence of dishonesty, but was convicted of murder, by the application of the joint enterprise principle, as a result of the act of violence perpetrated by another individual. Therefore, that case comes exactly into those with which we are concerned.

For all those reasons, this is a very important debate. I am sorry that there are comparatively few people in the Chamber today. One thing that has struck me since I have been here is how, by comparison with the past, this House takes comparatively little interest in reform of our criminal justice law. Through the ’60s and ’70s, Members of this House—either through private Members’ Bills or the pressure that they put on Government to make changes to Government legislation—effected major changes for the better in many aspects of our criminal law: reforms of the law in relation to homicide and the abolition of the death penalty; and changes to the law in relation to the criminalisation of abortion and homosexuality. A vast number of other really important matters of criminal justice reform emanated from debate in this House. Sadly, too often, that gets squeezed out in the current climate. Perhaps we should debate it rather more.

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

I am reluctant to intervene on such a good speech, but the hon. Gentleman knows of my interest as co-chair of the all-parliamentary group on miscarriages of justice. Does he not think that the Criminal Cases Review Commission is lacking in that it does not intervene enough, or early enough or persistently enough in these cases?

[Robert Neill]

There are a number of areas where changes are needed. I have great respect for the work of the Criminal Cases Review Commission, but I am conscious that it is under pressure both in terms of resource and of its terms of reference. It would not be unreasonable to look at that. Miscarriages of justice do occur. I know that full well because I vividly remember prosecuting one once—not in a murder case, but in a rape case. At the time, the evidence and the legal test appeared compelling, but, thanks to the work of the Criminal Cases Review Commission, evidence came to light, and I had no hesitation in not seeking to resist the appeal when it came to the Court of Appeal a second time. Its work, therefore, is really important. It is also important that it has the means to carry out its vital job, as its role is a significant one. However, there are other gaps that we must look at as well.

Everybody accepts now that there was a serious departure from good reasoning in the case of Chan Wing-Siu in Privy Council back in 1985. When one reads the case, the odd thing is that the judgment, which was described as “taking a wrong turn” in the Supreme Court, was, actually, almost not based on the principal facts or arguments that had brought the appeal to start with. The noble Lord, the member of the Privy Council, giving the judgment in that case rather went off on a tangent and developed what was then regarded as the concept of secondary parasitic accessory liability.

The matter could have been resolved perfectly well on the facts of its own case. It is set out very well in what is a very detailed judgment of a strongly constituted Supreme Court in the Jogee case. I certainly do not fault the judgment of the Supreme Court in Jogee at all. It is exceedingly well-reasoned, and it is significant that not only the then President of the Supreme Court, Lord Neuberger, but the current President, the then deputy president, Baroness Hale, were there. The then Lord Chief Justice, Lord Thomas of Cwmgiedd, took the unusual step of sitting in the Supreme Court because of his experience in criminal justice matters. Intellectually, the Supreme Court in Jogee got the answer right and said that the approach, which had encompassed so many people into secondary liability in homicide offences, was wrong. However, some practical errors remain in its application.

[Mr Mitchell]

I am most grateful to my hon. Friend for giving way. He is a lawyer, so can he explain to me, as a layman, why, following this extremely well-written judgment on Jogee, which I have also read, the criminal justice system did not react with enormous alarm and immediately set in train reviewing the very large number of cases affected by that judgment?

[Robert Neill]

That brings me to my next point. There is a concern that, in practice, the filter effect that has been put to the bringing of appeals out of time and the way that it has been interpreted in cases such as Anwar and others has been particularly restrictive. That is the difficulty. It is very clear that the Court of Appeal in the Anwar case and subsequent cases has taken a very narrow interpretation of the substantial injustice point. That does not necessarily have to be the case on the basis of Jogee, but it was always made very clear in the Supreme Court’s judgment that one should not assume that the Jogee case would mean that every conviction for murder on the basis of joint enterprise should be overturned, or that in many cases, even where convictions for murder were overturned, there would not also be a conviction for manslaughter, where appropriate, but the level of foresight and involvement was less. That is the important point that we have to consider.

None the less, it is really important that we get to a situation in which people are convicted, certainly, of offences where they have done wrong, but they should be convicted of and sentenced for offences that properly reflect the level of culpability of their behaviour. When we do not get that right, confidence in the system is understandably undermined. That is my concern, which is shared by the Members who have already spoken, about the difficulty of bringing cases out of time to the Court of Appeal. Clearly, it is something that needs to be looked at. If the rule of precedent makes it difficult for a court to do that, perhaps Parliament and Government should indeed consider it.

I just observe in passing that there is, in any event, the proviso to the Criminal Appeal Act 1968, which would mean that if, once the case has been heard, no material injustice occurred, the conviction can be upheld. At the moment, we have a double test: a test to bring the appeal out of time; and then the proviso. The difference is that, in the test to bring the appeal out of time, the onus is on the appellant to meet that test, whereas, under the Criminal Appeal Act, the test in relation to the proviso puts the onus on the prosecution. That is something that needs to be considered.

When the Justice Committee looked at this matter with some care in evidence sessions in the last Parliament, the view was that it had to be seen in the context of a very unsatisfactory state of the whole law of homicide. The distinction between murder and manslaughter remains extremely unclear in this country. Unfortunately, the Government have not so far taken up the opportunity of examining that. The logical route would be to ask the Law Commission to carry out such an examination.

In evidence to the Justice Committee in the last Parliament, Professor David Ormerod, a former chair of the Law Commission, a senior commissioner for criminal law and a distinguished academic Queen’s Counsel in criminal law matters, identified exactly that point. He said that a review of the law of homicide still represents the

“best solution”

that

“could encompass the decision in Jogee.”

It would enable us, thereafter, to encompass the consequences that stemmed from it. Referring to the Supreme Court’s decision, he said that

“they are constrained, as ever in the common law, by the facts of the case and the nature of the argument.”

That is our common law system. He went on:

“It was not possible for them to offer a comprehensive review of the whole of the law relating to secondary liability, which the Law Commission could do”.

One of my asks of the Government, as well as revisiting the test for bringing the appeals out of time, is to take up the Law Commission’s willingness to examine that area. There is vast expertise in the Law Commission, which is sometimes under-used. It can look at the matter dispassionately and set the difficulty that we have with secondary liability in these cases into the broader difficulties that we have with the law of manslaughter. We heard compelling evidence from criminal practitioners, representatives of the Criminal Bar Association, about the real difficulty and complexity of giving direction to juries in manslaughter cases.

Judges have given most careful directions, after discussions with counsel on both sides, but none the less they frequently find juries returning and sending a note seeking further clarification. The greater the lack of clarity, the greater the risk of injustice. I hope that issue can be resolved. I suggest to my hon. and learned Friend the Minister, whom I welcome to her post, that that would be a sensible and measured approach to find an intellectually sound way forward on this intractable issue.

The other matter that I would like the Minister to consider is the review of the Crown Prosecution Service guidelines, which the Justice Committee has taken evidence on. The fact that the review is taking place is welcome. The hon. Member for Manchester Central and my right hon. Friend the Member for Sutton Coldfield referred to the disproportionate impact that the use of prosecutions using joint enterprise has on certain communities.

The fact is that a doctrine developed some 300 years ago still has effects on the social life of 21st century Britain, and those effects are very different from what Lord Hale described in his “History of the Pleas of the Crown” in about 1670. We need to have a means of applying that prosecutorial tool in a way that reflects modern society.

I hope that the public interest element of the Attorney General’s guidelines can be strengthened to consider the appropriateness of using this tool in the way we have discussed, given the impact on certain communities within the United Kingdom. I hope that those are constructive suggestions that we can take forward from this debate.

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[Stephen Pound]

Absolutely. The Supreme Court ruled that the law had been interpreted incorrectly, but that is only half of it. Interpreting the law incorrectly is one thing, but righting the wrong is what has to happen now.

[Robert Neill]

rose—

[Stephen Pound]

When it comes to righting wrongs, I give way to the hon. Gentleman.

[Robert Neill]

The hon. Gentleman is making a passionate case, and I agree with him that righting this wrong in the way the law has been applied is important. Does he agree that there is a distinction between the concept of joint enterprise and how it has been applied? For example, if he and I jointly agreed to commit a burglary, the application of joint enterprise in those circumstances would be perfectly reasonable. The problem is the extension to groups of young people when one of them commits acts of violence and when it is suggested that foresight can be equated with intent. That is taking the doctrine beyond a sensible application.

[Stephen Pound]

The hon. Gentleman has indicated a way forward. He knows the case of Craig and Bentley, which I remember very well indeed. Let us not forget that one of them was hanged in a joint enterprise. Is it not a salutary thought that if the present law on joint enterprise had been applied when we had the death penalty, 20 young men would have been hanged. Can you imagine? If everybody in a group of people where somebody dies was said to be guilty, as with Craig and Bentley, would they then all have been hanged? The mere thought of that is so horrific—so disgusting—that it surely brings into sharp relief the insanity of this legislation and the idea that this great blanket of culpability is cast over a whole group of people. This law is nonsensical. It is cruel; it is brutal; it is outdated; and it has to go.

Amazingly, this is the first time that we have debated this subject on the Floor of the House. I hope that today will be the beginning of a process that leads to people like Alex Henry seeing daylight, and his child and his family, again. When I last saw Alex—I have visited him a couple of times—he was keeping his head down and keeping his nose clean. He was working in the kitchen. He actually had kind words for the staff at HMP Whitemoor, but the hope was going out of his eyes. You could actually see him looking at that long, long stretch ahead of him.

As my hon. Friend the Member for Huddersfield (Mr Sheerman) mentioned, Alex is a man on the autism spectrum. In his appeal, evidence was submitted on his behalf by none less than Professor Baron-Cohen. One cannot get a higher authority than that. Was that opinion accepted? Clearly not, because my constituent is still in prison. He is a young, autistic man who, for 40 seconds of his life, did not stop something happening. He did not do anything wrong; he did not stop it happening. Can it really be right in this day and age that the law we are all sworn to uphold—that we are a part of as part of the establishment of this country—is having that impact on people, disproportionately on young black men, and disproportionately on the innocent?

I profoundly hope that this debate is one of those occasions when something really good comes from this place—where we put down a marker to say, yes, we thank JENGbA for all its work, but even without JENGbA, in our own heart of hearts, in our own knowledge and analysis of the situation, we realise that this stinks. It is wrong—dangerously, destructively, corrosively wrong. We have to do something about it. Let today be the day that we consign the present interpretation of joint enterprise to the dustbin, move forward and bring the law back into repute—take it away from ill-repute. I hope that Kenneth Alexander and Alex Henry can then take their rightful places in society where we want them to be. May they be here in the House of Commons, in the Gallery or wherever, rather than behind bars at the nation’s expense. We cannot go on like this.

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[Mr Lammy]

My hon. Friend’s point is exactly right. The issue is: what would happen if the principal’s intent was graver than the accessory’s? In all the cases that have been mentioned, that is absolutely the case. What would happen if the outcome of whatever act the principal carries out is far graver than the accessory was aware of? Getting into questions about the foresight and intent of a young adult is next to impossible, given all that we know in modern times about child psychology, so it is absolutely right that young people should not be convicted in those cases.

[Robert Neill]

The right hon. Gentleman is making a powerful case and perhaps I can offer him some support. As evidence to the Justice Committee has made clear, practitioners feel it would be of greater assistance to juries deciding on these issues if there were a statutory framework within which they could work. We have done that with the Theft Act 1968, which replaced out-of-date common law arrangements. Ironically, in the Jogee case, the trial judge of first instance was this country’s first black woman High Court judge, but she was obliged to follow the rules of precedent. Had there been a revision of them by statute, the situation might have been different.

[Mr Lammy]

The hon. Gentleman is right. He makes the case that it is now for the House really to get thinking about these matters.

As the hon. Gentleman will be aware, an accessory party can be liable under joint enterprise, even if they withdraw from a group before any crime is committed. Many hon. Members will think of the example of a group of students in a playground or a park, where someone talks about teaching someone a lesson—in fact, we might recall such an occasion from our own lives when we were younger—and one of those individuals thinks that teaching a lesson involves significant violence, assault or even something ending in murder, and just because the group had discussed teaching someone a lesson, someone else may end up in prison for murder.

We have been in the House when or know of times when Members have picked up the Mace—I am thinking of the former leader of the SNP and Lord Heseltine. If you picked up the Mace and an older Member thought it was coming towards them and died from a heart attack, you would be in serious trouble. However, if you had discussed it with your colleagues beforehand, they too would be in serious trouble. A whole political party—on that occasion, the SNP—might have been heading towards that. That shows how ridiculous this situation has become, and it is why we need an urgent review.

We are having this debate after politicians have said, “We have to crack down on gangs and that is why we are doing this.” But has it worked? Knife crime is rising: in England and Wales, there were 36,998 knife crime offences in the 12 months to the end of June. Hospital admissions as a result of knife crime and the use of sharp objects are rising. We have a real problem in London, which the Mayor of London is trying to deal with. Has this therefore had the effect that people suggested it would? It has not. It has not had that effect because it is not minors driving knife crime—it is serious organised criminals: gangsters and kingpins. They are driving the trafficking of cocaine and drugs, which is leading to the turf wars that are making some of the communities we represent more violent. The 14, 15 and 16-year-olds or those in their early-20s locked up for the offence of joint enterprise do not know anything about getting a tonne of cocaine from Bolivia or Colombia. We must go after the gangsters, but we are hearing very little about that.

The Ministry of Justice’s own research on joint enterprise convictions understands the psychology of young people. It understands the need of teenagers and juveniles to belong to a group. It understands that they have a predisposition towards risk, seeking excitement and reckless behaviour. It understands their inability to inhibit their impulses and the fact that they have less self-control. All of us in the House who are raising or have raised teenagers will recognise all those characteristics. Are we really going to throw young men—black and white—into prison because they are young?

I have two boys at home. They navigate the streets of north London on their way to school and one in particular goes through some high knife-crime areas. I am raising boys who would never ever take a knife out of the house and use it on anybody else—I am absolutely sure about that—but can I say, if something is going on in a park, that one of them might not drift towards the action? Hand on heart, as a father, I cannot say that. I do not ever want to have to visit one of my own children in prison. None of us should want ever to have to visit young people in prison. None of us should want that waste. None of us should want those criminal records. It is time that this House acted.

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[Ruth Cadbury]

I thank the right hon. Gentleman so much. Anybody who has had any contact with people who have been diagnosed with autism at a later stage knows that the condition is often not diagnosed early. Many people go though many difficulties in their lives before being diagnosed, if at all. Alex was one of those in that unlucky situation. Because autism is an invisible disorder, many assessments found traits of autism as highlighted in Professor Baron-Cohen’s report. That could be a factor in appeals.

The refusal of Alex’s appeal has left the family devastated, as the House can imagine, but they are determined to see him proved innocent. In their view—and mine, from what I know of the case—he is not a murderer. How many people in prison for joint enterprise have undiagnosed autism? We need to look at that.

Since Alex’s appeal was rejected last year, his sister Charlotte has applied to challenge the “substantial injustice” at the Supreme Court. The family are also taking Alex’s case to the European Court of Human Rights. They believe that joint enterprise breached article 7 of the European convention on human rights and the principle of legality that holds that there shall be no punishment without law. Since those convicted under joint enterprise were not actually convicted under a true law, their presumption of innocence under article 6(2) remains, and it is breached by the need to prove that the change in the law would have made a difference.

In October 2016, the Select Committee on Justice, on which I have the pleasure and honour of serving, wrote to the chair of the Law Commission to suggest that it review the law of joint enterprise, given the lack of legal clarity in the wake of the Jogee judgement—particularly on how juries should be directed on the question of intention. Unfortunately, the final version of the 13th programme of reform omits any work on joint enterprise. I know, however, that the Justice Committee’s Chair will continue to push those points.

[Robert Neill]

The hon. Lady is right that the Committee will want to pursue that point. However, there is nothing to stop the Government themselves asking the Law Commission to carry out a review, as has happened a number of times in the past.

[Ruth Cadbury]

Like the hon. Gentleman, I look forward to the Minister’s response.

As we have heard, the Justice Committee also wrote to the Director of Public Prosecutions suggesting clarification on the intention of the defendant. I support the clear demands put forward by my hon. Friend the Member for Manchester Central: proportionality, the need for proper data, a review of the CPS guidance and a review of older cases. All those are essential, and we look forward to the Minister’s response on all those issues.

For the sake of Alex, the thousands of others imprisoned under joint enterprise and their loved ones, I support the calls of colleagues across the House that the injustice be rectified. Let us right the wrong. If we really want to address knife crime, let us learn from the places that have actually brought it down.

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[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I am very grateful to my right hon. Friend for his comments. I would like to start the debate by commending the hon. Member for Manchester Central (Lucy Powell) for securing this debate on an issue that is close to her constituency and to her heart. I also want to thank my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and the right hon. Member for Tottenham (Mr Lammy) for supporting the motion today.

I fully recognise the importance of the law in this area. When anyone is charged and convicted of a crime, it will have serious consequences for them, their families and their victims. This is especially the case when the charge may be for such a serious crime as murder. I also recognise the sensitivity of this issue, given that the youngest of those that JENGbA supports was 12 when he was charged with the offence, as many Members have mentioned. That will obviously have a significant impact on his life.

Many Members have identified what the Supreme Court decided, but it is important to set out the principles involved because some Members put forward hypothetical circumstances that could result in a conviction for accessory liability, and I am not sure that all those circumstances were right. It is important to be clear what we are talking about from the outset.

First, I will summarise a few of the points in the Supreme Court judgment in the case of Jogee, which was handed down in February 2016. It concerned a very specific area of the law on joint enterprise called parasitic accessory liability, rather than the whole law of joint enterprise. Such liability arises when two people, person 1 and person 2, participate together in one offence, such as a burglary, and during those events, person 1 commits a second offence—for example, he or she murders a security guard. Under the law as it stood before Jogee, if the second person foresaw that the first person might act with the intention to kill or cause really serious harm and participated in the burglary none the less, that second person would be guilty of murder alongside the first.

In the Jogee judgment, the Supreme Court said that that was wrong, as the motion recognises. A person cannot be guilty merely for foreseeing that an accomplice might commit a second offence during the course of the original plan. Rather, the Supreme Court held that such a person can be guilty only if he or she intentionally encourages or assists a person to commit such an offence and intends them to have the mens rea required for that offence. The effect of Jogee is that members of a gang who are not the principal perpetrators of the crime will not necessarily be guilty of the crime in question unless it can be shown that they have intentionally encouraged or helped the principal perpetrators to commit that crime. As many Members have said, the Supreme Court also held that offenders convicted under the old test would be granted permission to appeal only if they had suffered “substantial injustice”. That is the position as it stands, as a matter of law.

I should like to respond to some of the points that have been made today. In the short time allotted, I am afraid that I will not be able to respond to them all. I shall concentrate on those that are identified in the motion. There has been a suggestion that the number of cases brought under joint enterprise has been unchanged since the Supreme Court judgment. As the hon. Member for Bolton South East (Yasmin Qureshi) and others have pointed out, however, the difficulty with that argument is that there are no official statistics to enable us to confirm or deny that. A number of Members have criticised the Ministry of Justice for not collecting that data, and we are looking into that. It might be possible to address that under our reforms relating to the common platform. I can confirm that the Ministry of Justice is looking into the matter.

The point was also made that there has not yet been a successful appeal. I understand that that could be extremely frustrating for the parties concerned, but it does not mean that there is no route to an appeal. There is a system to challenge any previous decisions. It is possible for an appeal to be made by an individual, who could also apply to the Criminal Cases Review Commission to have their case reviewed by the Court of Appeal. Indeed, a number of cases have been brought. [Interruption.] They have been brought, but they have been unsuccessful. There has also been criticism of the threshold that the Court of Appeal applies in relation to substantial injustice, but this is not a new test brought in by the Supreme Court in relation to Jogee. It is a long-applied test that the Court Appeal uses in relation to out-of-time appeals.

The key point that has been advanced in relation to the motion today is that there is a need for legislation. I should like to identify a few reasons why it might not be appropriate to bring forward legislation at this stage. First, the law on joint enterprise is not set out in statute; it has evolved through case law. Some criticism was made of that by the right hon. Member for Tottenham, but the evolution of law through the courts has always been an important part of our common law justice system. In our law, the common law has equal weight with law made by statute. No judge in the Jogee case identified a need for Parliament to change the law. Indeed, the hon. Member for Manchester Central has accepted, today and previously, that the Supreme Court ruling said that it was the responsibility of the courts to put the law right. Many Members have accepted that the law as set down by the Supreme Court is right, but some have identified that the implementation of that decision is flawed. I would like to make a few points in relation to that.

The Crown Prosecution Service has already amended its guidance and it is currently operating on guidance in line with the Supreme Court decision. More importantly, it has consulted on revised guidance for use by prosecutors. The hon. Lady has contributed to that, which is to be commended. I am told that the CPS aims to publish a summary of its response to the consultation and the final version of its guidance in the early part of this year.

Many Members have rightly identified the disproportionate number of black and minority ethnic defendants in these cases, and I am pleased that the CPS has confirmed that the revised guidance will take account of the Lammy recommendations, which task the CPS with taking the opportunity of reworking its guidance on joint enterprise to consider its approach to gang prosecutions in general. The CPS has also revised its internal resources on gangs in the light of the recommendations resulting from the Lammy review.

The motion calls for clarity in the law, but it does not identify what the lack of clarity is or how the law could be improved. Indeed, as the hon. Lady has said, what is needed is for the Supreme Court judgment to be followed. There is no suggestion that the law itself needs to be changed; it just needs to be enforced.

[Robert Neill]

Does my hon. and learned Friend agree that it is not the doctrine of joint enterprise that needs to be put on a statutory basis or given clarification, but that its operation in relation to homicide, and the law of homicide itself, would benefit from a statutory review? That has been suggested by the Law Commission and by the Criminal Bar Association, and it would give us an opportunity to deal with the anomalies in joint enterprise in the context of homicide. I think that that is what we are looking for.

[Lucy Frazer]

My hon. Friend is prescient; I was about to go on to the broader points that were made during the debate. He made that point in his own speech, and he has raised it in the Select Committee as well. As a new Minister, I am happy to consider that in due course.

Some other, broader points were made. My right hon. Friend the Member for Sutton Coldfield mentioned disclosure, which I know the Attorney General is looking at. Many other points were made, and I will happily address them when time allows.

To return to the motion, I recognise the importance of the law on joint enterprise and the impact that it can have on people, such as the constituents of the hon. Member for Manchester Central and the others mentioned today. For the reasons set out, however, the Government do not believe that the time is currently right for any changes to the law on joint enterprise. It is for the courts to interpret the law, as laid down by the Supreme Court. I hope that the revised guidance on secondary liability will provide a clear direction for prosecutors in this area of law, and I am happy to keep the matter under review. With that in mind, I invite the House to reject the motion.