Joint Enterprise — House of Commons, 2018-01-25
Topic: Law and Crime
Andrew John Bower Mitchell (Conservative, Centre-right): Mr Deputy Speaker, along with the whole House I welcome you back to the Chair. I congratulate the hon. Member for Manchester Central (Lucy Powell) on securing this debate and thank Mr Speaker and the Backbench Business Committee for granting it. I draw the attention of the House to my outside interests as set out in the register We are holding this debate today because we know that thousands of people have been prosecuted under joint enterprise over the last decade alone, and we have a profound fear that some of these convictions are unsound. I am deeply conscious that behind each of these crimes lies a victim, usually murdered, with grieving loved ones whose lives have been changed for ever and ruined. My heart goes out to all those and their families who have suffered in that way. But we also know that there is a wealth of evidence that suggests that joint enterprise has both convicted people in error and wholly disproportionately affected those who identify as black, Asian and minority ethnic Young people from ethnic communities have been, essentially, hoovered up for peripheral and in some cases even non-existent involvement in serious criminal acts. The Supreme Court’s decision in the case of Jogee has established that the previous interpretation of the law was wrong and confirmed the abolition of what I am advised lawyers call parasitic accessory liability, to which the hon. Lady referred. But to date only a very limited number of joint enterprise convictions have been quashed To find a defendant guilty of a criminal offence, a jury must be satisfied that a defendant both committed the crime and had the requisite state of mind to carry out the crime. Yet the law on joint enterprise, and secondary liability more generally, was developed by the courts to ensure that all participants in a criminal enterprise could be held accountable. Indeed, it has been a key tool when prosecuting suspected gang members. But there has been a failure by our criminal justice system to distinguish between gangs and groups. The House will understand that not all members of groups have a criminal purpose. Not all members of gangs or groups join in when there is an incident. Humans are by nature social animals. People naturally hang around in groups or sports teams or protest marches. That does not mean, if an incident occurs, that everyone in the group intended whatever happened to happen We now have evidence of how discriminatory the law of joint enterprise has been, and I congratulate the right hon. Member for Tottenham (Mr Lammy) on the work he did in revealing the unequal treatment of, and outcomes for, black, Asian and minority ethnic individuals in the criminal justice system. Over recent years, I have worked with Matilda MacAttram, of Black Mental Health, who has done so much good work exposing the inadequacies of the criminal justice and legal system in this respect. I also pay tribute to the Prime Minister who, as Home Secretary, ensured that the voice of Black Mental Health was heard in Government It is no accident that the bulk of the prison population convicted under a joint enterprise doctrine is young BAME men. It is an uneasy and difficult truth that an association might exist unconsciously or otherwise in the minds of the police, prosecutors and juries between being a young ethnic minority male and being in a gang, and therefore being involved in forms of urban violence. Such findings are echoed by studies of the ethnic profile of prisoners convicted on the basis of joint enterprise. One study by the Centre for Crime and Justice Studies found that, for young people convicted under joint enterprise, nearly 60% were BAME There is now a real suspicion that justice has miscarried in many joint enterprise cases. Juries were not directed on the correct law, even in the most serious of cases. The high standards of legal accuracy we are entitled to expect of our justice system have simply not been met. In such cases, we rightly expect the appeal system to function and to function effectively Even as recently as 2017, prosecutors were still trying to find an easy way to convict, as was shown by the case of Lewis. Thankfully, the judge found there was no case to answer. The prosecution appealed that ruling and rightly lost. There is now a logjam in our criminal justice system, with the Court of Appeal appearing wrongly to block appeals by joint enterprise prisoners. The burden of the substantial injustice test, to which I have referred, has been passed on to the prisoner, which requires the person convicted to satisfy the Court of Appeal that "he would not have been convicted had the jury been directed on the basis of the corrected law as set out in Jogee." Instead, the question should be, "Is there a realistic possibility that he would not have been convicted?", which I understand has legal precedence and which was the test previously applied in the case of McInnes v. Her Majesty’s Advocate Along with the hon. Member for Ealing North (Stephen Pound), to whom I pay tribute, I visited Alex Henry in prison in Cambridgeshire. Shortly after his conviction for joint enterprise murder, he was diagnosed with autism. I have taken a close interest in his case over the past two years and think it one of immense concern. As we have learned in recent weeks, the police and Crown Prosecution Service are often difficult to deal with in respect of disclosure. Parliament needs to reconsider the proper approach and the relevant sanctions. The evidence available to a prosecutor is now more comprehensive, with CCTV and phones, which in theory makes it easier to distinguish between those who join in and those who do not. Recent cases of alleged sexual offending have demonstrated the consequences when disclosure is not properly dealt with The right to a fair trial is a basic human right. I worry that, in respect of these cases, our courts are too keen to block appeals by those who might have been convicted by error of the courts. Such behaviour serves only to undermine our faith in the justice system. There is a tendency in Britain to believe that we have the best criminal justice system in the world. I put it to the House that our attitude to the British crime and justice system is riddled with a complacency that is wholly unjustified. That view would be borne out by any fair-minded person who focused on joint enterprise The whole House should be grateful to the right hon. Member for Tottenham for his recent report, delivered at the Government’s request, on the legal system’s treatment of black, Asian and ethnic minorities in Britain. Quite apart from the right hon. Gentleman, there are many in the legal profession who argue that it is simply unacceptable that today, in 2018, virtually all senior members of the judiciary are white men from privileged backgrounds. That simply does not reflect the society that is Britain today and which the judiciary serve We should not forget that all too often in Britain, injustice is remedied not by the organs of the state but by the investigative prowess of a free media or, indeed, by Members of the House. Who can forget that the manifest injustice done to the Birmingham Six was remedied not by the police or the state, but by the indefatigable work of two Members of the House: Sir John Farr, the then Conservative Member for Harborough, and Chris Mullin, the then Labour Member for Sunderland South and subsequently a distinguished Chairman of the Home Affairs Committee and a development Minister? Today, the poor families of the victims of that outrage have still not achieved closure, as the ongoing coroner’s inquiry in Birmingham demonstrates I hope that, following this debate, the media will take a close interest in the cases in which joint enterprise might have led to innocent people being convicted. JENGbA, the organisation formed in 2010 to which the hon. Member for Manchester Central rightly referred, now supports more than 800 prisoners, many of whom are serving mandatory life sentences of 22 years, and the youngest of whom was just 12 when charged. I hope that the Justice Committee, with its considerable authority—its Chair, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), is in his place—will not allow these matters to rest until they have been fully examined by Parliament, so that we can be assured that justice has been delivered.