Joint Enterprise — House of Commons, 2018-01-25
Topic: Law and Crime
Ruth Margaret Cadbury (Labour, Centre-left): I congratulate my right hon. Friend the Member for Tottenham (Mr Lammy), my hon. Friend the Member for Manchester Central (Lucy Powell), the right hon. Member for Sutton Coldfield (Mr Mitchell) and the hon. Member for Bromley and Chislehurst (Robert Neill) on securing this debate, and I thank the Backbench Business Committee for allocating it time today I represent some of the family of Alex Henry, whose case was explained in some detail by my hon. Friend the Member for Ealing North (Stephen Pound). Alex Henry was involved in a fatal street fight in Ealing in 2013, and has spent four years in prison, serving 19 years under joint enterprise. His mother, Sally Halsall, is my constituent, and last October I met her and Alex’s sister, Charlotte, along with my hon. Friend the Member for Ealing North and the right hon. Member for Sutton Coldfield. I really came to understand the importance and significance of joint enterprise, and the need to review the law In August 2013 Alex Henry went shopping with three friends. A confrontation took place that lasted just over 40 seconds. It is not clear why the confrontation took place, but it may have been triggered by a stare. One young man used a knife from within a bag, and he stabbed two brothers, one of whom tragically lost his life. On the sixth day of the trial, the man with the knife pleaded guilty to murder and grievous bodily harm with intent, and was sentenced to 22 years. Alex Henry received a sentence of 19 years—only four years less—despite never touching the knife or even being aware of its existence Since Alex’s conviction in March 2014, his family have campaigned tirelessly with JENGbA to reform the law of joint enterprise. The injustice, as the family saw it, was that traditionally, for someone to be found guilty of murder the Crown needed to prove that the defendant inflicted fatal harm while intending to kill, or at least to commit very serious harm. Conversely, under joint enterprise the Crown needs only to prove that the defendant foresaw the possibility that the crime "might" happen, rather than that they intended it and knew that it "would" happen. This means that it is easier to prove the guilt of the accessory than the principal offender. Therefore, in Alex’s case the Crown needed to prove that Alex foresaw the possibility that the stabbing "might" happen, rather than that he intended and knew that it "would" happen There was no evidence that Alex knew about the possession of the knife and therefore that someone might be stabbed. However, the Crown persuaded the jury by arguing that "friends tell each other everything", and therefore that Alex must have known the other man was in possession of a knife that day, and foreseen the possibility of its use if any altercations were to arise during the shopping trip. "Friends tell each other everything and therefore the crime could have been foreseen"—what a shocking indictment of the way the law works if that can lock up a young man for so long As we have heard, in February 2016 the joint enterprise law was successfully reformed. Now, rather than foresight, the Crown needs only to prove that the defendant intentionally encouraged or assisted the principal offender while knowing that the crime "would" take place. The law of joint enterprise has convicted thousands of men, women and children, 800 of whom are supported by JENGbA. However, the courts have ruled that the change in the law will have no automatic retrospective effect for out-of-time appeals, which include every case resulting in conviction 28 days or more before the change in the law. Instead, those out-of-time appeals will be allowed only if a defendant can prove a substantial injustice, which means proving that the change in law would, without doubt, have made a difference However, that is an impossible test, as was found in the case of Regina v. Anwar in 2016. The evidential bar has not been raised by Jogee; in particular, presence at the scene of the offence can amount to encouragement of the crime. Moreover, proof of the defendant’s intent to encourage, coupled with his knowledge that the crime would happen, can be inferred from the friendship of the co-defendants, just as foresight was inferred before Jogee If nothing more need be shown evidentially since the change in the law, how can a defendant prove that the change in the law would have made a difference? In comparison, those who have suffered a misapplication of the law changed in Jogee need to show only within 28 days of conviction that the conviction is unsafe, in that the misdirection might have made a difference. So far, no out-of-time case has succeeded on appeal—including Alex’s appeal, which was rejected In his excellent report on black and minority ethnic people in the justice system, my right hon. Friend the Member for Tottenham, who is no longer in his place, rightly shone a light on unacceptable inequality, particularly for young people from those communities. But two other factors are particularly relevant to joint enterprise. First, there is maturity. Many convicted under joint enterprise are not in full maturity; the justice system is beginning, slowly, to understand that young men under 25 are not mature and need to be considered slightly differently—their maturity must be a factor in their cases The other factor is the autism spectrum. Alex Henry’s diagnosis of autism was important in his case. Despite Alex’s having had many problems from an early age, no one had suggested to him or his family that he might be on the autistic spectrum until a viewer of the documentary made about the case wrote to the family. Alex’s family then arranged for Alex to be assessed by Professor Simon Baron-Cohen, the leading academic on autism and Asperger’s syndrome in this country The professor’s report states that it is incredibly unlikely that Alex could have foreseen what would or might happen in those 40 seconds since, due to his autism, he cannot predict the actions, behaviours or intentions of others. The Court of Appeal rejected that ground because Alex’s mother has a PhD in psychology and so she could have coached Alex in "how to act autistic". That is shocking. The court also said that it could not understand why Alex was diagnosed so late in life, aged 23, despite seven previous mental health assessments, which did not result in a diagnosis.