Oral evidence: Joint Enterprise: follow-up, HC 310Wednesday 22 October 2014
Oral evidence, 22 October 2014.
Witnesses
Rt Hon Mike Penning MP, Minister of State for Policing, Criminal Justice and Victims, Ministry of Justice, Scott McPherson, Director, Law, Rights and International, Ministry of Justice, and Chris Munro, Deputy Director, Criminal Law Team, Ministry of Justice, gave evidence.
Chair
Welcome, Mr Penning. We are very glad to have you with us this morning. As you know, we are having a second study of the doctrine of joint enterprise and the way it operates. Perhaps you could introduce us to the two colleagues sitting either side of you.
Mike Penning
It might be easier, Chair, if I asked them to introduce themselves—the legal eagles with me.
Scott McPherson
I am Scott McPherson. I am the director responsible for law, rights and international affairs in the Ministry of Justice.
Chris Munro
I am Chris Munro. I am a legal adviser in the Ministry of Justice.
Chair
Thank you.
Mr Chope
Minister, the Government has repeatedly expressed the view that it sees no need to review the doctrine of joint enterprise, or secondary liability more widely. Could you assure us that you will look afresh at any evidence which arises from the current inquiry and the representations we have received? We really need to have some assurance that the Government’s mind on this is not closed.
Mike Penning
In the five Departments I have sat in over the last four years I would never dream of sitting in front of any Committee and saying that we would not look very closely at the Select Committee’s report, but this particular report is very important because there are families and people on both sides of the argument. It is ever so important that we keep our mind open. We will look very carefully at the report, but as you alluded to in your opening remarks, Mr Chope, the Government’s position at the moment is set—a letter to the Committee has been sent—and we are happy with where we are. Naturally enough, not only will we look carefully at the report but also at the evidence that has been given to the Committee. I think that is very important.
Mr Chope
Thank you. It has been put to us that it is illogical and unjust that a secondary participant in a joint enterprise can be held liable for murder if he or she had foresight but no intent that murder or grievous body harm might occur in the course of a separate criminal venture. We heard from Dr Dyson from the Faculty of Law at Cambridge that joint enterprise does not require you to show that they have contributed to the second crime in any way, so you have no contribution and you only have foresight, which is an insufficient link. What comment do you have upon what Dr Dyson said?
Mike Penning
I am very aware of Dr Dyson’s comments, but the Government do not agree, as the previous Administration did not agree. This is not something that the coalition have brought in. This was brought in before the coalition Government. We also need to look at appeals; I know this from some of the evidence that has been given to me. Where convictions have taken place using this part of the law, if Dr Dyson’s view was to be upheld in law, you would see a lot more turnover in decisions, and actually you do not see that. It is very robust in the appeals, which I like to see as a Justice Minister, not least because that would mean that the courts are getting it right. If we see lots of decisions overturned on appeal, we have a serious problem within the original decisions.
Mr Chope
That is only one test. Another test is how many cases before the courts are either dropped halfway, on the order of the judge, or the peripheral participants in the joint enterprise are acquitted. Those cases are often very long-winded, complex, time-consuming and all the rest. If the law was simplified, it might be that there would be fewer defendants in these cases so the cases would proceed in a more orderly way. Would you accept that?
Mike Penning
No. I know you have just heard evidence from the CPS. I would prefer, where it is felt that there is a case to be heard and there is enough evidence to do it, that that is for the courts to decide. Whether it is long and drawn-out is not the important thing; it is whether justice is being done. The justice system we have in this country means that these cases are heard before a judge and a jury. It is very important that they proceed to court. I do not know if my colleagues want to add anything. I am not legally trained at all, so if you want to step in at any time, just do so.
Chris Munro
I do not have anything to add to that.
Scott McPherson
I do not, either.
Andy McDonald
Have you any discomfort at all with the principle of joint enterprise? Somebody could be convicted on the basis that they foresaw that something could happen—the actus reus and mens rea belong somewhere else—or they ought to have foreseen, and the outcome for that individual in circumstances where they may dispute that they could ever have foreseen what happened on the evidence against them ends up with exactly the same outcome as the perpetrator, the “stabber”, as we often describe somebody. Have you any discomfort at all that this is how that principle is deployed?
Mike Penning
I have looked very hard and carefully at this matter in the few months that I have had this portfolio—long before I knew I was going to give evidence before this Committee—and not only discussed it extensively with my officials but looked at the campaign groups’ views on it. Nothing is perfect within any system that we operate, but I am comfortable that cases would not have been in court and people would not have been convicted for some atrocious murders had it not been for this legislation. I stress that I will continue to look, and keep an open mind as to how the legislation could be improved, for want of a better word, especially in the light of the evidence and the report that comes from this Committee.
Mr Chope
Are you aware that this phenomenon is now spreading to other parts of the system where secondary participants engaged in a joint enterprise are being charged? Do you think that the wider law on secondary liability is being contaminated by the dilution of these fault requirements?
Mike Penning
I am aware—I will ask my legal colleague to espouse how that is happening—but I am not concerned at this present point that it is corrupt in other parts of the judicial system.
Chris Munro
I have obviously read Dr Dyson’s evidence on the points. I know there are differing academic views on whether joint enterprise and secondary liability should be following the same path. The courts have been saying that joint enterprise is a species of secondary liability. The thrust of Dr Dyson’s evidence, I guess, is that he thinks that mens rea is too low across the board. Again, there are differing academic views about that question, which is one of the issues that we are debating.
Mr Chope
Victims’ representatives seem to be quite concerned about having a review that could lead to a dilution of joint enterprise, but they are not as robustly against that as the Secretary of State has been in previous evidence. I think they had a more nuanced approach to it, having looked at different aspects of joint enterprise. Up to now, the Secretary of State and your Department have been saying, “All or nothing. We either look at the whole thing or none of it.” Would you be prepared to look at a more nuanced view?
Mike Penning
I am with my Secretary of State, and previous Secretaries of State.
Chair
That’s an occupational necessity, I suppose.
Mike Penning
It does help. Sir Alan, you know me well enough; I speak my mind. I am content with what this Secretary of State and previous Secretaries of State in the Ministry of Justice have said on this. You could not do a review in isolation. You would have to have a much bigger review, if you went down that avenue, which would have to include the whole area around murder and manslaughter. I robustly support my Secretary of State.
Mr Chope
Is it because you think there could be a lot of public concern and people might then come forward and say, depending on the outcome of the review, that there have been wrongful convictions, and seek appeals out of time and all the rest of it? Is the concern of the Government that this will open a potential Pandora’s box?
Mike Penning
There will be that. There also is the fact that convictions like Lawrence have been successful because of this legislation. I reiterate what I said; while there are people who have concerns, including some academics, there is a completely different argument coming from the other side. While, perhaps, the victims, campaign groups and individuals were not as robust in their language as the Secretary of State, all the evidence I see from them is that they are in support of the legislation, which has allowed convictions to take place that almost certainly would not have taken place before.
John McDonnell
There is a view that, on the one hand, joint enterprise has been used as a blunt social policy instrument to address fears about gang culture—that has been whipped up in the media, to a certain extent—and on the other hand, it is being used as a deterrent to young people becoming involved in gangs. Are either of those desirable methods?
Mike Penning
Any form of legislation in this area that is a deterrent is desirable. We would all want people to think very carefully before they were involved in any crime, and the consequence of being involved in crime is the whole principle, I hope, of what we are looking at today. If it has an effect on gang culture, so be it. At the end of the day, my view—a non-legalistic view—is around justice. Justice for the victim is the most important thing.
John McDonnell
The problem with it being used as a deterrent is that, first of all, someone who might be participating in a gang or joining a gang needs to understand what joint enterprise is, don’t they? Secondly, all the research demonstrates that what they are more concerned about is whether they get caught or not. So it does not become much of an effective instrument if people do not even understand what it is.
Mike Penning
That is one view. I don’t agree with that view.
John McDonnell
Let me put some figures to you. JENGbA, which is a campaigning organisation, say that 400 men are serving life sentences for joint enterprise offences. We have had evidence from the Institute of Criminology at Cambridge University which shows, from a current study of young prisoners serving lengthy sentences, that 37% of those convicted of joint enterprise in their sample were black/black British, three times the proportion of black or black British in the overall prison population. Many of those convicted maintain their innocence, and many of them do not even understand whether they were principal or secondary offenders. What are your comments on those statistics?
Mike Penning
I am very aware of the statistics that you have used. You have touched on different issues to do with the justice system and the involvement, for instance, of black and ethnic minorities, particularly men, in the legal system, and also those involved in gangs. That does not mean, in any shape or form, that the legislation is wrong, in my opinion. What we have to address—
Chair
That was a slip of the tongue, I think. We are not talking about legislation but about a common law doctrine.
Mike Penning
Yes; I understand. I am not legalistic, so I apologise if I do not use legal terms. The legal team will understand that. There are lots of people in the justice system who are in prison and say and feel that they are innocent. I go back to the earlier comments that I made. If you look at the appeals in this particular area, the turnovers, where the decision has been deemed to be wrong, are relatively low. Thus, the courts clearly feel that the system is operating correctly.
John McDonnell
But the statistics show, in relation to the number of black or black British people, that it is three times the proportion of black/black British who are actually within the overall prison population itself.
Mike Penning
That is within the prison system as a whole. I haven’t got the exact figures in front of me, Sir Alan.
John McDonnell
Let me be precise. I am sorry. I was confusing you there. Let me be absolutely precise. It is three times the proportion of black/black British in the overall prison population. The numbers going to prison are significantly more in relation to this particular charge. What are your comments on that?
Mike Penning
Coming from the part of London that I come from, it really is very worrying. Actually, we need to look at the individuals—what the cases were. We don’t know about each of the individual cases, understandably, but of course those statistics are worrying. We should all be worried, whether they are from our Turkish community or our black and ethnic communities; we have too many people in the courts and prisons from the ethnic minority groups which you have alluded to.
John McDonnell
Would you be willing to take that back and see what work needs to be done to fully understand why that is happening?
Mike Penning
Yes.
John McDonnell
That would be really helpful. Thank you. There is an issue of public confidence in the joint enterprise doctrine, and we have seen that in the media, with various films and television programmes. How can that be improved?
Mike Penning
You had evidence earlier on, I understand, from the Crown Prosecution Service, on the guidance they have reissued, which is very helpful. I would argue that the particular documentary and some of the other commentary within the media has not put the argument for the other side, from the victims’ point of view, where some people, quite rightly, feel that people are in prison for offences against their loved ones and they would not have been had it not been for the joint enterprise doctrine. There are two sides to this. It is not just one-sided. That is the point I am trying to make.
Chair
Does it not worry you, though, when the joint enterprise doctrine is combined with the mandatory sentence for murder? Leaving entirely aside whether there is any question mark over the mandatory sentence for murder—let us assume that that is an accepted fact—once you apply the doctrine of joint enterprise, there are different levels of culpability: there is the person who wielded the knife; there is the person who drove the car away and there is the person who was there in the crowd, but they all seemed to have some foresight and, therefore, they all get convicted under joint enterprise, and they all get the same sentence. They all get a life sentence. Do you not have to look rather more carefully at whether it is right to use the doctrine, given that the sentence cannot be varied?
Mike Penning
That has been looked at, not only after previous reports from the Committee, but also by previous Secretaries of State. It is a really difficult decision. When people go to prison for a very long time, it has a huge effect on them and their families, but we have to balance that against their involvement under the legislation. I understand where you are coming from, but it is a balance that has to be made to protect the public and to protect the victims.
Andy McDonald
Minister, you mentioned a documentary. Did you see Jimmy McGovern’s “Common” and the documentary that followed?
Mike Penning
Yes.
Andy McDonald
That is good to know. Can I turn your attention to some factual data on the use of joint enterprise? The Cambridge Institute of Criminology called for the compilation of much more comprehensive statistics on joint enterprise. I am wondering what the obstacles are to routine and continuous compilation of more comprehensive data by HMCTS and others, identifying more clearly and comprehensively the numbers of prosecutions, convictions and appeals in joint enterprise cases, broken down by ethnicity, age, and principal and secondary offenders. We do not seem to have that information at our fingertips.
Mike Penning
No. Some of that was done more recently by the Crown Prosecution Service, but I understand that they are pulling away from that now, based on cost, I think. I was not here for the previous evidence session, but the Crown Prosecution Service probably thinks that that is a responsibility of either the Home Office or the Government as a whole.
Andy McDonald
We were specifically told that it was an MOJ responsibility.
Mike Penning
Yes. One of the things I will do—obviously it will be one of the recommendations—before we even get to that stage, is to find out what we can produce and how we can produce it, and the cost implications of doing that, and the workload involved. Before I came here, I looked at some of things I wanted to see—some of the things that you have just alluded to, though probably not all—and I will see whether we can do that. There will be huge cost implications of gathering that information in that way. Let’s be honest about that. It has significant cost implications.
Andy McDonald
Somebody languishing in jail for life might think it money well spent. You will have seen the data produced by the Bureau of Investigative Journalism on the numbers—
Mike Penning
Let me touch on that point. Someone languishing in jail has gone through the judicial system.
Andy McDonald
Who claims that they are innocent of the crime that they have been convicted of. It may well be that that could be true.
Mike Penning
It may well be, but they have gone through the court system. Presumably, if they felt they were innocent, they would have gone through the appeal system. Actually, there is a victim or victims at the end of this.
Andy McDonald
Absolutely. Nobody doubts the benefits of the system; it is the dangers that we are trying to address here. You said initially that there are two sides to this. We are very well aware that there are two sides to this argument. We are trying to get to the heart of it. Data has been published by the Bureau of Investigative Journalism on the number of appeals taking place in joint enterprise cases; they are 22% of all published rulings of the Criminal Court of Appeal in 2013, a percentage described in evidence to us as “a terrifying statistic” by Dr Mathew Dyson. Does the volume of appeals give you cause for concern?
Mike Penning
As I alluded to earlier on, no. I think people should have the right to appeal. The key is how many appeals are turned over; in other words, the decision was found to be wrong. It has to be right that people have the right to ask to appeal their sentence. As I said earlier on, do I agree with everything that Dr Dyson said? No, I don’t.
Andy McDonald
He comments that 22% of those cases are joint enterprise cases.
Mike Penning
Yes.
Andy McDonald
On the very point you make, the Criminal Cases Review Commission has made a submission to us on their experiences dealing with applications for review of conviction or sentence in joint enterprise cases. They say that only one conviction has been quashed since 2004 out of seven referrals. That is a much lower rate than for all other convictions. They say that it may be particularly difficult in joint enterprise cases for applicants to furnish fresh evidence on mens rea. Do you have any comment on those observations?
Mike Penning
Again, I know the evidence that you are alluding to. It is difficult to take from that anything more than was said in the evidence to you. If people are appealing, if the figure is lower, the way to look at that is from the other end of the telescope. Are the courts getting it right, rather than are they getting it wrong? It is something we will continue to look at. If the original decisions are being upheld in the Court of Appeal, or they are not being given permission to appeal because there is no new evidence, surely that is the way our court system works, and that means it is working well, some would argue.
Andy McDonald
Unless there is some flaw with the fundamental principle of a young man being at one end of a park when an event is going on at the other end that he has nothing to do with—he is actually walking away from the scene—yet he is pulled into the dragnet and he is convicted of an offence and spends a lifetime in prison.
Mike Penning
I understand the point you are coming to. I just don’t agree.
Jeremy Corbyn
In response to a previous report, the reason the Government gave for not looking into clarifying the law on joint enterprise was that it would not be easy to disentangle this from the law on murder. Is that still the Government’s position?
Mike Penning
Yes. That is exactly what I said to Mr Chope a few minutes ago.
Jeremy Corbyn
I have been listening very carefully to your answers; we have taken a lot of evidence and I have met a number of people who are victims of the joint enterprise law. Do you, genuinely, have an open mind on looking again at the whole issue of the criminalisation of people for joint enterprise when there is peripheral or no evidence against them, other than, as Mr McDonald pointed out, mere presence in a park where an appalling event or incident took place?
Mike Penning
I will reiterate what I said to Mr. Chope. I completely support the position that the Secretary of State reiterated. However, I keep an open mind as to what may well be in the report that comes from this Committee so I can take that into consideration as we go forward. Are we at the moment in a position where we would say that we are going to have a review? No, we are not. That is what I exactly said to Mr Chope a few moments ago.
Jeremy Corbyn
If we were minded to ask for a review, are you saying, in advance, that you would refuse it?
Mike Penning
No. I said, categorically to the Chair and to Mr Chope, that I would look, and the Government would look—because this may be above my pay grade—carefully at what this Committee says and respond in the way that all Governments do to Committees’ reports.
Jeremy Corbyn
Do you accept that there is a problem that when somebody is wrongly convicted it gives some degree of satisfaction to the family of the victim, or whatever, that somebody has been put in prison, but the reality is that the world is a much more dangerous place because the guilty person might not have been convicted, and an innocent person might end up in prison? It is a fundamental problem with the efficiency of the criminal justice system. Many of us have serious concerns about the operation of law of joint enterprise, which can end up with peripheral presence leading to a very serious offence, which is life ruining.
Mike Penning
I wouldn’t think that anybody would want to see an innocent man or woman in prison. That is my answer to your question. As a Justice Minister, that is exactly where I would come from as well. That is the principle of the whole of our judicial system and, hopefully, it will stay that way for ever.
Chair
Do you have a view about whether it is desirable to enshrine the doctrine in legislation?
Mike Penning
Only in that it has been looked at extensively in the past, and the decision was not to do so. I have not seen anything yet that would make me change the Government’s position on that; no.
Chair
Do you think it is possible that if you did try to enshrine it in legislation you might end up, after passage through both Houses, with a more circumscribed doctrine of joint enterprise?
Mike Penning
Sir Alan, you have been in this House much longer than I have. I am not going to predict what would happen when taking any form of legislation through both Houses in any shape or form.
Chair
I couldn’t catch you on that one. Thank you very much indeed for your evidence, your answers to questions and for your expressed willingness to look carefully at what this Committee may say. Thank you very much. Oral evidence: Joint Enterprise: follow-up, HC 310 21