Joint Enterprise — House of Commons, 2018-01-25
Topic: Law and Crime
Lucy Maria Powell (Labour, Centre-left): I will have to make some progress. I am sure someone else will give way later The extensive research also found that the establishment had a gang narrative that often relied on neighbourhood narratives, racialised assumptions, unevidenced constructs and loose associations. Things such as social media tags and videos have been critical to securing many of the joint enterprise convictions. We know that there are serious flaws in this approach. That is why my right hon. Friend the Member for Tottenham has raised it in his review and why the Home Affairs Committee is looking into it. Indeed, joint enterprise cases continue following the Supreme Court ruling, albeit under new Crown Prosecution Service guidance, but that remains problematic We want the Government to look at three areas for future cases. The first is proportionality and whether joint enterprise is being used correctly or disproportionately against certain groups. We ask the Government to do what the Supreme Court failed to do, which is to establish whether joint enterprise over-criminalises secondary parties. Secondly, and related to that, we need the data. Collating the data about who is being charged and convicted, and where, is urgent now and long overdue. Thirdly, the long-awaited outcome of the review of the CPS guidance needs to be brought forward, and quickly. It must include clearer guidance for prosecution discretion so that lesser offences can be brought against secondary parties in many cases The final point is about retrospective cases and putting right the injustices of the past. We are not asking for automatic reopening of every single case. It is right that there must be a test, but the test is now so impossibly high that no cases have successfully been heard by the Court of Appeal, and the Criminal Cases Review Commission has yet to recommend that a single case should come back, despite having received 99 fresh applications and reviewing 90 more. Indeed, appeal judges seem utterly dismissive of these cases. Unlike in a usual appeal case, where the threshold is the possibility of an unsafe conviction, applicants in the case of the "wrong" law of joint enterprise are also required to demonstrate that, as well as being unsafe, had the correct law applied there "would" have been a substantial difference to the outcome. In most other cases, this would be simply that it "may" have done so. So we believe that the substantial injustice test needs establishing by Parliament in law, and it should make it clear that the threshold is "may", not "would" Moreover, we think that the Court of Appeal should also be allowed to consider the ongoing effect of the conviction on the applicant and, critically, take account of the applicant’s age, mental health and other vulnerabilities at the time. The old, or wrong, foresight test now applied correctly to adolescents or those suffering with learning or mental difficulties would surely provide a substantial change to convictions. Today we would not expect an immature teenager or someone with learning difficulties to understand the old, weak foresight test I want the Government urgently to consider a mechanism for clarifying the threshold in these cases. Just to be clear, this is not about opening the floodgates, but if the law has been wrong for 30 years, during which time hundreds if not thousands of mandatory life sentences were handed out under the old wrong law, then it stands to reason that at least some—not a tiny, tiny few—of the cases are a clear injustice that the courts are currently failing to put right I think we can all agree today in the House that the law took a wrong turn. That now needs putting right. The establishment is evidently not putting itself right, so the Government and Parliament need to act. We urgently need a review of the use and scope of the prosecutions brought under joint enterprise, particularly its disproportionate use against young BAME men. We also need urgent clarification of the qualification for appeal so that we can put right decades of substantial injustices and unsafe convictions leading to many serving life sentences for murders they did not commit.