Joint Enterprise — House of Commons, 2018-01-25
Topic: Law and Crime
Robert James MacGillivray Neill (Conservative, Centre-right): 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.