In section 8 (abettors in misdemeanors) of the Accessories and Abettors Act 1861, after “shall” insert—

“, by making a significant contribution to its commission,”.

This new clause would clarify the definition of ‘joint enterprise’ (or secondary liability), so that an individual must make a “significant contribution” to an offence committed by another to be criminally liable.

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

It is a pleasure to see you in the Chair, Mrs Latham.

New clause 16 mirrors the Joint Enterprise (Significant Contribution) Bill introduced by my hon. Friend Kim Johnson in attempting to amend the Accessories and Abettors Act 1861. It clarifies that a person must make a significant contribution to a crime to be guilty of it. The private Member’s Bill, which has cross-party support, will have a Second Reading debate on Friday 2 February. The 1861 Act states that those

“who aid, abet, counsel or procure the commission of ”— an offence—

“…shall be liable to be tried, indicted, and punished as a principal offender.”

However, the doctrine of secondary liability or joint enterprise, as it is more commonly known, is still older. Through common law, developed by the Court, “aid” or “abet” has now shifted to “assist” or “encourage” for establishing secondary liability. In many situations, this test is entirely reasonable. Most people would agree that an armed robber at a bank heist gone wrong, for example, can be deemed as culpable as their partner who actually shot a person, because they make a significant contribution to the crime by carrying or supplying a gun and threatening the cashier, for example. The problem, according to many legal experts, is that joint enterprise laws are sometimes used in a much wider way, often to convict people who have made no significant contribution to the crime at all. Campaigners have long warned that these laws can be used as a racist dragnet to maximise convictions.

Recent Crown Prosecution Service data, recorded and released as a result of legal action by Liberty and the campaign group Joint Enterprise Not Guilty by Association, suggest that black people are 16 times more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws, yet no assessment of the reasons for this shocking statistic—and it is shocking—has been made by the Crown Prosecution Service, or, as I understand it, by the Government.

In 2016, the Supreme Court, in the case of R v. Jogee, said that the law on joint enterprise had taken a “wrong turn” for more than 30 years. It restored the proper law of intentions so that those who intended to commit or assist a crime, rather than those who only might have foreseen it, could be properly convicted. That was, as the BBC said, a moment of “genuine legal history”. Research by the Centre for Crime and Justice Studies identifies that the judgment has had little to no effect from joint enterprise changes, charges or convictions, and the Court of Appeal has decided that prisoners whose juries had only been directed to consider foresight, rather than intention, should not have a retrial. The situation is gravely unjust for many prisoners, and my hon. Friend the Member for Huddersfield (Mr Sheerman) tried to address it in his Criminal Appeal (Amendment) Bill.

It is a myth that the Supreme Court fixed joint enterprise in 2016. It left under-addressed what constitutes “assist” or “encourage”. There is currently no threshold or test for whether someone made a significant contribution to a crime to be convicted of it. That flexibility gives rise to uncertainties and injustice. For example, joint enterprise laws are being used to convict young people who are seen fighting, but not with the victim; young people who are not present at the scene; women who have no control over their boyfriends’ conduct; and young people who listen to certain kinds of music, where trials focus on character and culture rather than on contribution to a crime. In the recent case of Fiaz, the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Unfortunately, the Supreme Court declined to hear that case, so it falls to Parliament to enact safer legal frameworks.

What would the new clause do? It would simply add weight to the words of the 1861 Act, inserting:

“by making a significant contribution to its commission”

and thereby enshrining in statute a common-sense safeguard against inappropriate or over-zealous prosecutions. That is an important principle in a fair and effective justice system. By clarifying that someone must make a “significant contribution” to an offence in order to be criminally liable, the new clause seeks to restore Parliament’s original meaning and to correct a second wrong turn by the court with respect to joint enterprise. That would help to ensure that persons who make no significant contribution to a crime are never again convicted of being complicit in that crime.

Of course, that would not prevent the use of alternative charges in cases involving multiple accused persons, nor would it prevent the prosecution of multiple persons for a crime in which they all made a significant contribution. It would not help anyone who is already convicted under this doctrine—I referred to the Bill introduced by my hon. Friend the Member for Huddersfield—but it would be an important step in preventing the unfair and unjust use of joint enterprise laws against innocent people in the future. I understand that there may be some objections; as far as I am aware, the Government have not made any formal response to the proposed change but have let it be known that they are potentially resistant to the idea. I hope that the Minister's response to the Committee will clarify any of those objections.

In my view, it would be hard to object to the new clause on the grounds of unintended consequences as to do so would be an acknowledgement of the belief that some people deserve to be found guilty of offences—sometimes very serious offences, such as murder—despite making no significant contribution to the commission of those offences. As such, Ministers may claim that the amendment is unnecessary on the grounds that our current laws—whether “aid” or “abet” in statute or “assist” or “encourage” in common law—already imply a significant contribution or that the current flexibility of the law is part of its strength, as it means that it is for the jury to weigh up and decide on the facts of a particular case.

That is not the case according to Dr Felicity Gerry KC, who was lead counsel in the Jogee case. She described the following generic examples, all of which are based on real cases: a boy, cycling to and from an incident, who has no contact with the victim; a driver who drops friends off to collect drugs, and a fight happens outside the car; a passenger in a taxi, where others get out of the taxi and go to an area where a stabbing occurs, but that passenger has no contact with the victim; schoolchildren who gather for a fight and one of them dies, but they are all prosecuted even when they have had no contact with the victim and have no weapon, putting them all in risk of being convicted, without separating those who contribute and those who do not contribute; autistic children who find it difficult to assess what others will do; children exploited to sell drugs who get caught up in the actions of others; a woman whose violent boyfriend gets angry with some people and runs after them around a corner—she follows a short while later and pulls another person’s hair when she thinks he is being attacked; and a woman looking for her shoes during violent disorder.

All those scenarios describe circumstances in which people can be convicted of serious crimes, despite making no significant contribution to that crime, so it is not correct to claim that “significant contribution” is already implied by law—it is not.

In a case that I have come across, a woman who was a victim of domestic abuse was charged under the crime of joint enterprise and received a longer sentence—because she pleaded not guilty—than the person who abused her and killed somebody by pulling the trigger of a gun. Is my hon. Friend concerned that in some cases of joint enterprise, those who have not had it proven that they had a significant part to play get longer sentences than those who did?

My hon. Friend gets right to the nub of this matter, and she is absolutely right. I agree with her point. Dr Gerry points out that the case of Fiaz, in which she was lead counsel, highlights the need for legal clarity. Judges are currently required to direct juries to consider the significance of a defendant’s contribution to an offence, and that is leading to numerous miscarriages of justice. Only Parliament can fix that.

I have a number of questions for the Minister. If the new clause is unnecessary, as may be claimed, can the Minister explain why when schoolchildren spontaneously gather for a fight and one of them unfortunately dies, they are sometimes all prosecuted even when they have had no contact with the victim and no weapon? That is one of the many such examples provided by Dr Gerry, who, as I said, was the lead counsel in the landmark Jogee case.

Is the Minister be willing to meet Dr Gerry and other experts in this field who can explain why this change of law is so badly needed? Can the Minister explain why the Crown Prosecution Service’s own database suggests that black people, as I indicated earlier, are 16 times more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws? What assessment have the Government made of the reasons behind that remarkable statistic? It is shocking. Is it not obvious why campaigners say that joint enterprise is too often used as a racist dragnet? Finally, will the Minister agree that it is not in the public interest to prosecute those who have not made a significant contribution to a crime?

I begin by paying tribute to the work of my hon. Friend the Member for Bootle on the new clause, and the ongoing work of my hon. Friend Kim Johnson, who we have already heard has introduced a private Member’s Bill to the House on the same issue. I am sure that Members across the Committee will share my admiration and respect for the campaigners from JENGbA, who have been tirelessly working on challenging injustices in joint enterprise convictions for well over a decade.

As we have just heard, the new clause mirrors the Joint Enterprise (Significant Contribution) Bill, which we hope will receive its Second Reading on Friday 2 February. I would prefer to see the Government making commitments on this matter, as it is a complex area of law and practice and any reforms will need careful consideration and monitoring to ensure that they are working, especially after the unexpected absence of change following the Jogee decision in 2016, which I will come back to later.

I am glad that the new clause has been tabled to enable a discussion in Committee, because the issue deserves more parliamentary time. Even though we have had many criminal justice Bills before this House in the past 10 years, all while alarms have been raised about continuing problems with joint enterprise law, Parliament has not engaged substantially with the issue for some time. During my tenure as shadow Justice Minister, I met the Centre for Crime and Justice Studies and the PCS, among others, and heard about ongoing challenges with joint enterprise convictions, despite the decision in Jogee and the very active collaboration between campaigners, legal practitioners and academics over the last decade. So I will be very interested to hear from the Minister about the work her Department has been doing in this area and, indeed, about any ongoing engagement it has had with campaigners, experts and practitioners who are collaborating on reform in this area.

The processes of prosecution and conviction in our criminal justice system should be fair, transparent and accountable, but joint enterprise law can be vague and confusing, and it can lead to apparently unjust outcomes. Some examples of individuals who are potentially at risk of being prosecuted under joint enterprise have been provided by Dr Felicity Gerry KC, who was the lead counsel in the case of Jogee. My hon. Friend the Member for Bootle has already outlined them to the Committee.

In 2016, when the Supreme Court ruled that the law of joint enterprise had taken a “wrong turn” for over 30 years, it restored the proper law of intention so that those who intended to commit or assist a crime, rather than those who might have foreseen it, could be properly convicted under joint enterprise law. These are all based on real cases, and as I have said, my hon. Friend has given the example of the taxi passenger getting out and becoming involved in a stabbing, or the woman who pulled somebody’s hair while trying to defend her boyfriend who may well have carried out a serious offence. Those individuals were charged under joint enterprise law, and they were at risk of extremely lengthy sentences, as if they were the primary offender, even when it is very difficult to discern how they contributed to the crime in question. Joint enterprise law has been used to convict young people who have not been present at the scene of the crime, and young people who listen to certain kinds of music, and there is a risk that such a trial focuses on character and culture, not contribution to a crime. My hon. Friend spoke about that in some detail. It is clear that joint enterprise law needs to be reformed in some way.

Last September, the CPS finally recorded and published a set of pilot data about joint enterprise cases, as a result of legal action by Liberty and JENGbA. While the results were shocking, they were, sadly, not surprising, as they confirmed much of what has been said by joint enterprise reformers for years. The data revealed that over half of those involved were aged under 25. Some 30% of the defendants in the cases were black, compared with the 4% of black people in the wider population, and black 18 to 24-year-olds were the largest demographic group identified in the pilot data. The data illustrated what we already knew about joint enterprise, which is that there is a serious racial disproportionality in its use.

The CPS pilot data suggests that black people are 16 times—I repeat, 16 times—more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws, which is a very significant divergence. I would be grateful to hear from the Minister the results of the data analysis, particularly about what she believes are the reasons behind the shocking disparities, given that the CPS has said that no conclusions about its decision making can be drawn from the pilot data. At the very least, we have to ask questions about the possibility that this level of divergence is at least in part caused by discriminatory practices in our criminal justice system. Looking at those figures, is the Minister confident that the framework for joint enterprise prosecutions is fit for purpose?

It has taken a number of years for the CPS to finally publish data on this important issue, but now that we have it, we must ensure that the Ministry of Justice is using that data to explore how it can best improve practice. I would also be grateful if the Minister could share any other plans for data collection and analysis in relation to the application of joint enterprise law, and anything she is aware of in the Ministry of Justice, the CPS or other Government body that is happening to progress this.

I was personally quite surprised at the scale of joint enterprise prosecutions, with the CPS data showing 680 defendants in 190 cases of homicide or attempted homicide across six of 14 CPS areas in just six months. That number is considerably higher than I would ever have anticipated. If the Minister has any thoughts on the number of prosecutions, I ask her to share them with the Committee. The high level of joint enterprise prosecutions demonstrates that at the very least it is an issue deserving of considerably more active consideration by parliamentarians and the Government.

Finally, I would be grateful if the Minister could speak to any discussions that she has had in her Department about the recent Fiaz case, in which the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Dr Gerry has argued that the case highlights the need for additional legal clarity, as judges do not always direct juries to consider the significance of a defendant’s contribution toward an offence. Does the Minister also recognise the need for additional clarity in that area, and has her Department considered any means by which that may be achieved? It is an area with substantial cross-party recognition that more needs to be done to increase the fairness, transparency and accountability of prosecutions, and I look forward to hearing the Department’s position on the matter.

I thank the hon. Member for Bootle for tabling new clause 16, which would amend section 8 of the Accessories and Abettors Act 1861 to provide that a person must have made a “significant contribution” to an offence committed as part of a joint enterprise to be indicted or punished as a principal offender. Its effect would be that the prosecution would have to identify the precise nature of the defendant’s role in aiding, abetting, procuring or counselling the commission of a crime committed in order to prove that the defendant had made a significant contribution—a threshold that need not currently be met.

Joint enterprise is a common law doctrine used in a variety of situations, most commonly to describe a situation in which two or more individuals have a common purpose to commit any criminal offence, or a secondary party encourages or assists the principal offender to commit an offence. It is a long-standing principle of criminal law that in either of those situations, both or all of the offenders may be held equally responsible and could be subject to the same penalty.

The hon. Member for Bootle has set out a number of examples, but I will start with a high-profile one. Members of the Committee may well recall the Victoria station attack in 2010, when a group of young men chased another young man over the ticket turnstile and down the escalator, where they set upon him. In the course of that attack, the young man was kicked in the head and torso repeatedly and was stabbed, and he died. At the end of it, the cause of death was multiple injuries, but it was impossible for the coroner to say who had struck the fatal blow with the knife or who had administered the fatal kick to the head. The whole group of assailants was put on trial; a number were convicted of murder and a number were convicted of manslaughter. That was classic joint enterprise, where they went with a common purpose to attack seriously an individual, and it could not be identified who had made the significant contribution, but the young man—the victim—was killed.

I say with great respect that R v. Jogee, which went before the Supreme Court in 2016 and to which the hon. Members for Stockton North and for Bootle both referred, was not an ordinary case. It was not even close to being an ordinary case. The Supreme Court reviewed 500 years of common-law jurisprudence on joint enterprise, and not only changed the law but issued really important guidance. I would like very briefly to talk the Committee through the framework that the Supreme Court applied, because it will help to explain why the Government will not accept new clause 16 today.

The Supreme Court said that it circumscribed the ambit of the offence and removed, as a matter of common law, the principle of parasitic accessory liability. To give an example that is sometimes given in case studies, if two people go to a farm with the purpose of stealing some farm machinery, and the farmer approaches them, and then person No. 1 pulls out a weapon and uses it on the farmer, that would not be decisive evidence that person No. 2 intended to kill or cause serious harm. That would previously have been the case under the principle of parasitic accessory liability, but the Supreme Court said that that went too far. In plain English, it said that joint enterprise cannot be inferred from the fact that it was foreseeable that a secondary offence would take place; there has to be an intention to assist. It said that the existence of foreseeability was something that the court should treat as evidence of intent, but was not necessarily decisive of it.

The judgment concluded by saying that joint enterprise essentially requires two elements. The first is a conduct element: the accessory must encourage or assist the crime committed by the principal. Secondly, the prosecution must show that the mental element existed, in other words that the accessory intended to encourage and assist the commission of the crime committed by the principal.

I have done a bit of a review of the case law—although I question whether it is helpful or unhelpful to go through case law during a Bill Committee in which nobody has the opportunity to read the case report—and am satisfied that there have been examples of case law since the Jogee case that show that approach being fairly applied. One example is of a group of young men who undertook a burglary on a care home. One person was tasked with searching the rooms before the others went in. In the course of events, one of the residents of the care home was brutally attacked. The young man who had done the search went in to try to stop it; he established that in court. He was convicted of burglary but not of the secondary attack, because that had not been his intention as part of the joint enterprise exercise.

I will draw out some other principles that the Supreme Court set out at the beginning of its judgment. Although this was not the question that the judges were asked to consider, they started by setting out the fundamental principles of joint enterprise:

“It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal. The reason is not difficult to see. He shares the physical act because even if it was not his hand which struck the blow, ransacked the house, smuggled the drugs or forged the cheque, he has encouraged or assisted those physical acts…The accessory who funded the bank robbery”

—or acted as lookout or drove the getaway car—

“is as guilty as those who are at the scene. Sometimes it may be impossible for the prosecution to prove whether a defendant was a principal or an accessory, but that does not matter so long as it can prove that he participated in the crime either as one or as the other. These basic principles are long established and uncontroversial.”

As I say, they did make a correction to the law in that case. They said that it must be possible to show that the mental element was there—that the accessory intended to encourage or assist the commission of the crime. I have given examples of that.

The Government understand and recognise the importance of the law on joint enterprise and the consequences that result from convictions. This can be difficult for defendants and their families to accept, but equally the impact of the crime can be devastating for the victim. I want to provide some reassurance to both hon. Members who asked what work was being done to gather evidence of disparate impact.

Reference has been made to the CPS pilot, which concluded in September and published its report. Its purpose was to review the interim findings of the pilot and the joint enterprise casework with the purpose of opening up a decision-making exercise, answering questions from stakeholders and possibly reviewing the guidance that it publishes. I understand that a further panel is to be convened by the CPS on 2 February, this Friday, with a focus on situations in which evidence of gang association is a feature. A careful review is being undertaken on the issue of disparate impact, which I concede has been raised a number of times.

Can the Minister tell me what protections are in place for the woman in the case that I outlined? She was considered to be an accessory to a crime. She was a victim of coercive and controlling behaviour, and the crime was a part of a pattern of domestic abuse.

In that circumstance, the defence of duress would be available to the victim in the ordinary way.

Currently, that is absolutely not what is happening in our criminal courts. It is currently no defence for victims of domestic abuse in these cases to say, “I’m a victim of domestic abuse: that’s why I ended up here.” The Minister is saying that there is the defence of duress; I am saying that it never gets used. It does not stack up, and this is not happening in reality. She has spoken of her pride in the Government over coercive control. Does she think that there need to be specific elements, within this conversation about joint enterprise, to protect people who are coerced into such behaviours?

We will come on to some amendments of that nature and I will deal with them in due course, but the defence of duress is a standard defence in the criminal context. [Interruption.] These are the criminal defences that get advanced.

In response to the hon. Member for Bootle, this is an area of the law that is intrinsically linked with other inchoate offences such as encouraging or assisting a crime. We think that it is too difficult to require the prosecution to prove a significant contribution; as we say, the very important case of Jogee has set clear parameters for both the conduct element and the mental element, which we think creates the correct framework of common law. For those reasons, the Government are unable to support the new clause, and we ask the hon. Member for Bootle to withdraw it.

I take the Minister’s points in good faith. Nothing that I say today—nothing whatever—condones any attempted criminality, but the question of proportionality, which we have discussed several times, is key. The Minister gave the example of a young man breaking into a care home, who was able to prove that he assisted the person. In that case, he was having to prove that he was not guilty. A fundamental element of British law is that someone is innocent until proven guilty, not the other way round. I see the perplexed look on the Minister’s face, but the young man in that case had to prove that he was not guilty. This was not about the prosecution proving that he was guilty.

I do not want to go into the detail of these cases; I am just trying to make the point that the Jogee case went so far, but it still did not deal with the question of proportionality. One defence solicitor said:

“They don’t need to prove that you did anything. If you’re part of a gang, it doesn’t matter, because the actus reus”— that is, being there—

“and the mens rea”,

the state of mind,

“is being in the gang”.

That could be applied in so many different cases. It could apply in boardrooms, and right across the piece: “You were there. You are guilty.” That is almost what it is saying, and that is what lawyers and Dr Gerry are trying to get the Government to consider.

Let us have the debate and have the discussion with the experts. The whole point of British justice is that when issues are raised and potential injustice arises, we think it through and work it out, instead of just closing the door. The danger in this situation is that the Government are closing the door and effectively saying that the Jogee case is the final say on this matter. I do not think it is.

However, my hon. Friend the Member for Liverpool, Riverside, who has done sterling work, will be addressing the issue in the debate on Friday 2 February. On that basis, I will withdraw the new clause, but I ask the Minister to give careful consideration to what I have said. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.