Oral evidence: Joint enterprise: follow-up, HC 310

Oral evidence, 3 September 2014.

Witnesses

Adam Pemberton, Assistant Chief Executive, Victim Support, and Saj Tufail gave evidence.

Chair

Mr Pemberton, assistant chief executive of Victim Support, and Mr Tufail, thank you very much for coming here this morning. I ask Mr Llwyd to start our questions.

Mr Llwyd

Inevitably, there will be some overlap with our questioning of the previous panel, but can I ask you, to begin with, what your view is on this? The Secretary of State has written to us saying that “relatives of victims and large sections of the law-abiding public—many of whom may not be as vocal as those groups which are calling for change—are likely to be concerned if we were suddenly to announce a review which could lead to a dilution of this important area of law.” What is your view on that?

Adam Pemberton

That was the Secretary of State’s comment, was it not?

Mr Llwyd

Yes.

Adam Pemberton

I think there would be public concern. I obviously speak on behalf of victims and, in the case of homicide, the bereaved. There may be public concern if the consultation meant that it became more difficult to prosecute people involved in serious offences such as murder. At the same time, if a consultation was based on the Law Commission’s recommendations, it would mitigate against that concern because it would still allow there to be prosecutions within the three or four broad categories of joint enterprise. It is possible to proceed with a consultation, but on those terms.

Mr Llwyd

Does that statement not confirm what the previous panel said—that this appears to be an area of policy-driven law?

Adam Pemberton

I represent a charity that supports victims, and I would not want to comment on whether or not I think it is a policy issue. We are proceeding on the experience of the bereaved and victims going through cases. It is a complex area, and that complexity, in terms of the victims’ experience, means that people often do not have enough communication at one of the most traumatic times of their lives—about what has happened to their loved ones, and what the options are going through the case, what might happen as that case plays out and, frankly, what happens afterwards if there is a conviction, in terms of helping them to understand what it means and what the outcome of the case has been. It is a complex area, and a consultation provides an opportunity to try and clear some of that up and give a bit of clarity.

Mr Llwyd

Mr Tufail, do you wish to add anything to that?

Mr Tufail

Yes. In my son’s case, there was clear evidence that the accomplice had intent. It certainly worked in our case. Having said that, I have heard of a number of cases where there needs to be a discussion; there needs to be a balance; and perhaps there needs to be a review. If someone does not have intent, and is not involved from the offset, perhaps they should not be convicted under joint enterprise. That is my personal view.

Mr Llwyd

The overall view coming through is that it is far too complex. Even lawyers are pretty bemused by what is going on, let alone members of the public, who are not professionally trained. What you are saying is that we need to go back to the beginning, to start again and look at the whole issue. Is that right?

Mr Tufail

It needs to be looked at, but the other thing that we perhaps need to address is at what stage and how we lose control of our young kids, why they have been involved in the things that they have been involved in, and what we can do to resolve the situation. Joint enterprise has worked as a deterrent, I would say, in some cases but not in all, and we need to address the deeper issues around youngsters.

Mr Llwyd

Speaking as a barrister, I have prosecuted and defended joint enterprise cases. The only real trouble occurs principally over manslaughter and murder. With the average burglary, it is quite obvious that one guy is outside keeping an eye on the street while someone else is going in through the window. That is simple; that is fine, and there is no problem.

Mr Tufail

They are jointly involved, yes.

Mr Llwyd

But neither of them will go down for life, will they?

Mr Tufail

No, they won’t. However, as I said, in my son’s case it certainly worked for us. There was conclusive evidence to convict the accomplice under joint enterprise, but that was in my son’s case. I cannot speak for other cases. Having said that, given some of the stories that I have heard, I agree that there needs to be a review of some sort. I am not legally minded, so that will be left to yourselves and the judicial system.

Adam Pemberton

The only thing that I would add is that, whatever comes of a review, it is likely—and, to be honest, desirable—that there is still the opportunity to prosecute people involved in a multi-handed attack. That option should still be there, whether it is called joint enterprise or is reformed in some way. The option presented to prosecutors to prosecute in that way needs to be maintained because of the nature of some of the cases we have seen.

Mr Llwyd

But subject to a review of the whole area of law, basically, not proceeding as we are at present.

Adam Pemberton

Certainly in terms of trying to get some clarity around the issues, and that is clarity for victims and the bereaved as well, because it is a very difficult area to get your head round. It is very difficult to get your head round it when you are looking at it dispassionately and are not involved.

Mr Llwyd

Yes, but there are cases, are there not—I know of them; I have read the newspapers, as we all do—where victims’ families feel very badly about what has happened to some of the youngsters who have gone down? They realise that they were distant from the whole event, but they have gone to prison for a long time.

Mr Tufail

I am one of them, unfortunately. I do feel sorry for some of the youngsters that have gone down as a result of joint enterprise. They should perhaps be convicted under a different law and should serve some time, but, if they were not involved in the actual blow that caused the fatality, they should not be convicted of murder.

Mr Llwyd

No.

Mr Tufail

As I said, I keep going back to my son. It was a completely different situation. It was explained to me, and I wanted the QC to convict both under joint enterprise, because there was conclusive evidence.

Chair

You were a party to the discussion about whether it was appropriate.

Mr Tufail

It was explained to his mum and me, and I quite clearly understood it, although it was in layman’s terms because, as I said, I am not legally minded. For me, it was the right thing to do.

Mr Llwyd

In your son’s case, how many defendants were involved?

Mr Tufail

Two.

Mr Llwyd

In which case, it is probably not quite the same as some of the cases that we have been discussing today, where a group of youngsters walk down the street and one of their number does something daft, without anybody knowing.

Mr Tufail

Yes.

Mr Llwyd

Mr Pemberton, referring to your written submission, you said that it would be premature to judge the effectiveness of the CPS’s 2012 guidance on this area of law. Do you detect any change in the approach adopted by prosecutors on joint enterprise charging since the guidance was published?

Adam Pemberton

We are not party to charging decisions, and we do not maintain our own independent data on this, so we are looking at the same information as you. On that basis, my senses suggest a largely unchanged picture. It is too early to tell what impact the guidance is having, if any.

Mr Llwyd

My final question is one that I am sure you will be able to address. Are the views of victims and their families taken into account by the Crown Prosecution Service in reaching joint enterprise charging decisions, as the guidance indeed says they should be?

Adam Pemberton

Saj can speak from personal experience about it, but I think it is important to be really clear about what the guidance says. It is not about victims or the bereaved having a say in the decision or determining the decision; it is about making sure that the prosecutors are taking account of the harm caused to the victim or the bereaved, and taking that impact into account in their thinking. That is not the same as having a say or it being determining of it.

Mr Llwyd

No; my question did not imply that. I am asking whether, in your work, you come across families who say, “Our views were not taken into account whatsoever,” or others who say, “Yes, they did interview me, and they did take account of what I had to say.”

Adam Pemberton

You then get into a much broader debate about victim personal statements, victim impact statements, and the use of those, because those are obviously the key methods by which prosecutors in any case should be taking account of the impact. There are significant variations across the country in people being even offered to make a victim impact statement. For example, on the latest figures you are twice as likely in Northumbria to be offered the opportunity to make one as you are in London, and that is across any case. The broader point is that the evidence is still that the harm and the impact are not being taken account of sufficiently by practitioners. It is set out in the new victims’ code, but there is no process for monitoring or enforcing that yet. From our perspective, as a charity trying to make sure that victims get the respect they deserve, we think there needs to be a much greater push around making sure that impact statements are given, taken and looked at by prosecutors.

Mr Llwyd

I make a final point, Mr Tufail, going back to your experience. You said earlier that the QC explained it to you, and that you had a discussion. Would that have been at court or before the court hearing?

Mr Tufail

It was during the case, at an early stage.

John Cryer

You both mentioned the possibility of joint enterprise acting as a deterrent. Is there any way in which it can act as a deterrent to keep young people away from gang culture or discourage them from getting involved in gang culture?

Mr Tufail

I am involved in a number of sessions with a couple of organisations, where we talk to young members, at the moment primarily in Lambeth. First, they are not aware of joint enterprise; when you mention it, it comes as a shock to them. It raises some sort of awareness with the youngsters, and that is what it is about. It is about making sure that you raise awareness of the fact that, as a result of your involvement, whether it be direct or indirect, you could be convicted, which potentially could be the end of your life. You may have taken someone else’s life, but, equally, you will end up in prison for the rest of your life. It works to an extent, but it is fairly early, because I have only just started doing these sessions for about a year or so, and I have been involved in three or four. It certainly comes as a shock to the youngsters, and some take it on board.

Adam Pemberton

I very much agree. It is difficult to make a real assessment. There is not a lot of research in this area, but whether or not it acts as a deterrent itself slightly misses the point. The issue is that people do not even know about it, and the expanded educational programmes so that young people, particularly, understand the legal realities are absolutely key. The Met has had a programme since 2009 going out and presenting to young people, to ensure that they are aware of the consequences, and that needs to be much broader so that people understand it.

John Cryer

You seem to be saying that it can be used to educate young people, but are there not better ways to educate them on the dangers of getting involved in gang culture?

Mr Tufail

It is about early intervention. The youngsters that I deal with during these sessions are aged from about 11 up to 17 and possibly in their late teens. We may need to address it at an earlier age, perhaps at primary stage. It may seem harsh, but we need to raise some sort of awareness. It may be a case in areas where there may potentially be a lot of gang activity. Just talking to youngsters there may raise some awareness.

John Cryer

There has been a lot of discussion this morning about the complexity of joint enterprise. Is joint enterprise sufficiently capable of distinguishing between spontaneous actions and planned, premeditated activities?

Mr Tufail

It certainly worked in my son’s case because it was premeditated; it was planned. I can’t discuss the details of the evidence, but it was conclusive. As I say, it worked in my son’s case. Overall, I am not sure whether you can get conclusive evidence.

Adam Pemberton

Again, this is a question more for prosecutors than it probably is for us, although it is worth pointing out that the CPS guidance does talk about these issues. Paragraph 34 explicitly talks about exercising particular care when it is a spontaneous joint enterprise. That probably makes it clearer than it was before the guidance, but, other than that, it is not a question I can answer.

John Cryer

My next question is about victims’ families, and I imagine you have had a lot of experience of that. In many cases, it is not possible to establish who actually delivered the fatal blow. We are obviously talking about manslaughter and murder because that is largely what we have been talking about. What sort of effect does the fact that it has not been able to be established have on victims’ families?

Adam Pemberton

That is all part and parcel of the complexity issue. The prosecutors often need to test this out in the case and, as a consequence, as I understand it, need to have various avenues that they can explore. That obviously makes it difficult to explain to the bereaved, in the case of a homicide, what is going on in the case. Obviously, people are looking for some clarity. Again, the code talks about meetings with bereaved families through prosecutors, and the CPS has now set up a series of victim liaison units—you probably know about them—which is designed to improve its performance in this area. The key thing to me is communication, communication, communication. It is not just, “Well, we’ll have one meeting at the start of the case and that ticks the box, job done.” In these cases, there needs to be a real continuing and genuine engagement, explaining that things will change potentially as the case goes on. It requires a real investment of effort to put the victim or the bereaved at the centre of this process and at the centre of the communications. I do not think it is ever going to be able to be completely simplified, but we could clearly do better than we do now in terms of keeping the victims and the bereaved involved in those discussions, and in understanding what is going on. As you say, we hear time and again from victims that they do not understand the process. When it gets to the end of the process and potentially there is a conviction, and there are voices from their own communities, as we heard earlier, saying that it is unjust, that casts doubt into the minds of the victims and the bereaved about what has just happened. That is hard, all over again, on top of having had to go through the court process. Some of this is not rocket science, in the sense that it is about sharing information and communicating over the whole length of a case.

John Cryer

This will be my final question. You mentioned earlier that it is still fairly obscure, but there is a rise in public awareness of joint enterprise. As the public become more aware of it, I get the impression—it is purely anecdotal—that there is a fair amount of shock that people can be convicted on the basis of joint enterprise. There is a general feeling, as people become aware, that it is unjust. Is there any way, in your view, that public confidence in joint enterprise can be increased, or is that just not going to happen?

Adam Pemberton

Speaking on behalf of the victims’ experience, we have to be very careful how we talk about these cases. In some of the most troubling cases, where there has been commentary about joint enterprise convictions, we see the victim’s or the deceased person’s intentions and actions being called into question as part of addressing these issues, and that is problematic from our perspective. Each case is going to have to be dealt with separately on this, and we are concerned, given the justifiable issues and concerns that have been raised this morning, that the voice of the victim and the bereaved does not get lost in this debate. There are some instances where joint enterprise convictions seem entirely right to have identified where there is common cause and so forth. It is difficult to generalise about every case, but we are very concerned to make sure, and this is one of the reasons we wanted to come here today, that we think about joint enterprise from the perspective of the victims and the bereaved, as well as the people convicted.

Mr Tufail

From a victim’s perspective, if a group of people is involved, it is important to establish who threw the final blow. Just for closure I think it is important.

Chair

Sometimes you can’t; sometimes that is not possible.

Mr Tufail

Sometimes it is not, and this is where it becomes quite difficult as a victim. If it is not possible in some cases, you want everyone convicted. This is where there needs to be a bit of a balance. You have to take the emotions out of it, and you have to look at the legal aspects and the evidence, and see under which of them you can convict those individuals. It is difficult. As I said, I am not in any way legally aware of any of this, but there needs to be some sort of balance. As everyone has said before, it needs to be addressed and reviewed.

Jeremy Corbyn

Do you think that the adoption of joint enterprise is fair and balanced, or should there be a fundamental change in the whole process, given the experience of both of you?

Adam Pemberton

I would say that the principles are sound. There are issues about what flexibility the judge has in addressing issues when it comes to sentencing. Our perspective is that what victims are looking for, from any case where there is a conviction, is that there is an effective and appropriate sentence, that their voice has been heard and that they have been kept informed throughout the process. Those may seem obvious things to say, but we also know that that does not happen from the victim’s perspective. That needs to happen more, but I won’t repeat some of the things that I have already said about that.

Jeremy Corbyn

Do you have concerns that people may appear to have been convicted of something that they did not do because of the ease of process of the joint enterprise law, as opposed to specific evidence against an individual for murder?

Mr Tufail

First, you must not forget the poor victims in this, but yes, there are concerns in some cases, and that is where it needs to be addressed. In principle, I agree with Adam.

Jeremy Corbyn

Do you think that the law on murder should be reviewed?

Mr Tufail

No, I do not think so.

Jeremy Corbyn

I am talking about the difference between first and second degree murder, which may require a view. I am just seeking your opinion.

Adam Pemberton

It is difficult to disentangle the issues between the two. It is hard to see that a reform of the murder laws is going to happen any time soon. Given the choice, I think that it would be better on balance to proceed with the consultation based on the Law Commission’s proposals than to stay with the status quo.

Jeremy Corbyn

This is my final question. Do you think that joint enterprise should be enshrined in statute? If it was, would it not reduce the flexibility of the police and prosecution in dealing with a case?

Adam Pemberton

I think there are some advantages. It could address some of the controversies by enshrining it in law. Everyone would need to be careful about how they put their case when enshrining it in legislation, but I think that it could reduce some of the uncertainty in practice. There is an opportunity to refine the law through statute, but, equally, at the same time we need to be careful that it does not impose so much rigidity in what are very difficult cases. Each case will be different from the next, and that could cause a lack of justice in other areas. There is certainly merit in looking at it, but it would need to be done very carefully.

Mr Tufail

I would agree with that.

Chair

Thank you very much, Mr Pemberton and Mr Tufail. We are very grateful for your evidence this morning. Examination of Witnesses

Witnesses

Dr Matthew Dyson, Faculty of Law, University of Cambridge, and Dr Ben Crewe, Institute of Criminology, University of Cambridge, gave evidence.

Chair

Good morning to Dr Dyson from the Faculty of Law at the university of Cambridge and to Dr Crewe from the Institute of Criminology at the university of Cambridge. We are grateful to you for coming to give evidence this morning. I ask Mr McDonald to begin.

Andy McDonald

Thank you, Sir Alan. Dr Dyson, what evidence do you have to support your argument that the lowering of the standard of fault in joint enterprise cases has spread to other secondary liability cases? Does the CPS guidance blur the boundaries between joint enterprise as generally understood and the wider categories of secondary liability?

Dr Dyson

The evidence is clear. First, the fault level for what we might call basic accessorial liability has clearly changed since the 1990s. It used to be that you clearly had to know, intend or believe that the principal would commit the crime, with the relevant AR and MR—actus reus and mens rea. It now seems to be that you must only foresee a substantial risk or a real possibility that he will do so. It has clearly changed. As it has changed, it has changed to this position that joint enterprise uses. It has reached the same place, and in the process of it changing, the judges, when they did so, made express reference to joint enterprise. Indeed, in one of the examples, a judge saw no reason why the principles under Chan Wing-Siu should not apply to basic accessorial liability. It has changed to the same position, and as it has changed the judges have done so by express reference to joint enterprise cases and reasoning. In my written evidence, at paragraphs 11 and 12, I set out a little more detail. I can tell you all of the cases if you would like me to; it will take about five minutes, but it is not really in doubt.

Chair

We will rely on your written evidence for that.

Andy McDonald

Dr Dyson, do you discern any impact of the CPS’s December 2012 guidance on charging practices in relation to joint enterprise offences? I am particularly interested in the directive of not preferring a more serious charge in order to secure admission on a lesser charge. Perhaps you could address the guidance more generally as well.

Dr Dyson

It is early to tell at some levels, but the bigger problem is that it probably has had almost no impact at all. There are a number of reasons for that. On the one hand, we are trying to use the CPS guidance to solve an incredibly wide—personally, I would not say complex; I would just say wide—and substantive doctrine. We have an excessive amount of criminalisation, and we are resolving it by prosecutorial discretion. The CPS guidance is trying to control that prosecutorial discretion, and that is a difficult thing to do, full stop. In the particular instance, the reason why it probably has not been very successful, according to the CPS’s own statement and in evidence to the Committee, is that it just attempted to restate what the law was. One might call it a potted summary. From the informal interviews that I have done in preparation for the Committee, it seems that prosecutors regard it as not being particularly helpful. The law was already vaguely known; it is just very harsh. It did not give them anything new to think about, except when it came to how to deal with the possibilities of different charges. They are not normally interested in making one of a series of alternatives, because it reduces the overall narrative that they are trying to present. They often do not include reference to manslaughter in the charges because, as a matter of law, it is automatically included, and the jury can find it anyway and they do not want to dilute their case. Similarly, they do not want to rely on the Serious Crime Act 2007 for the inchoate form of secondary liability, because it is incredibly complicated, but it also makes the case overall seem less persuasive. What they are always trying to do is to argue that the defendants were “in it together.” They do not use the terminology of basic accessorial liability; they do not really use the terminology of joint enterprise. They want to argue “in it together.” That is the primary narrative for attempting to secure a conviction. If in doubt, what do they rely on? They rely on the evidence that has come before them, but in almost all murder cases, in particular, defendants do not give any detail in their statements. Either they do not give a police statement or they give almost no detail. When they serve a defence statement, they merely say, “I did not do it; I wasn’t there”—something incredibly short. All the prosecutor is left to do is to pick the highest possible charge and then effectively bat it over to the defence to plead something—to give some sort of evidence, saying, “I wasn’t involved; I wasn’t there, and here’s why.” At the end of the day, it will fall to the jury to make that decision. I do not think the CPS guidance is likely to have that much impact, but there are questions about some of the nuances on whether it is entirely right and correct in some areas. Even if it was completely correct, as it only attempts to restate the law, it is not likely to be that effective. As it is slightly contradictory in what it asks prosecutors to do, given the evidence, which is probably the most significant problem with joint enterprise, I do not think that it has had much impact.

Chair

I am sorry to interrupt Mr McDonald’s questions, but in earlier evidence you probably heard a witness arguing that the law is constantly changing, and that a whole series of cases have subjected it to constant change. If that is the case—you may not agree; I don’t know—have the guidelines not given some greater certainty of what it is supposed to be?

Dr Dyson

The core principle of joint enterprise can be relatively neatly stated. The difficulty with a case is typically a difficulty of evidence. If you only require foresight as regards a second crime coming out of the first, the reason that we feel it is complicated or that it might be changing is because the factual patterns are going to be quite complex and difficult, but it is very easy to convict. There have been twists in that, mostly in the defences, and mostly in fundamental difference—quite a hardening of that in the 15 or so cases over the last 15 years that have gone to the Court of Appeal on fundamental difference. I was relatively comfortable with teaching joint enterprise to students, as in being able to say what the law was, not saying that it was a good idea, for the last five years, without the CPS guidance, and I did not learn much from reading the guidance. The views of prosecutors to whom I have spoken mirror that; the guidance has not told them anything particularly new. In general, the CPS guidance that you can find available on the websites is not very detailed. How can you, in law, set out what the discretion should do, which is what the guidance needs to achieve? In truth, it can set out some legal statements, some of which are open to debate, but I do not feel personally that the law has changed so dramatically in that period. There are little cases, such as Bristow or Reardon, that defy proper explanation, but they are outliers.

Andy McDonald

This question is for both of you. Would some culprits potentially be beyond the reach of law if joint enterprise were abolished, or could convictions be secured using other forms of secondary liability?

Dr Crewe

I am not sure that I can comment on that. I am not a legal scholar.

Dr Dyson

I do not currently believe that there are cases where someone should be convicted of the crime that they would be convicted of under joint enterprise who would not be convicted of anything appropriate. The question is, what is the link between the secondary party’s conduct and fault elements, and the crime of which you are trying to convict them? On the basis of foresight, I do not see a sufficient culpability link with the ultimate wrong and, as such, they should not be convicted of it. There is no link. If that can be called a gap, it is a gap that removing joint enterprise would make obvious. However, the premise of joint enterprise is that there is a first crime and that a second comes out of it, and they can be convicted of the first crime because, ex hypothesi, they have tried to commit that crime. They have been either agreeing to it and/or actually participated in it. There is no sufficient link with the second crime. Indeed, joint enterprise does not require you to show that they have contributed to it in any way, so you have no contribution and you have only foresight, which is an insufficient link. They will still be convicted of whatever it is that they did for the first crime, but you have not shown that they are connected to the second crime. I do not think of that as a gap.

Andy McDonald

Thank you. You have addressed some of the other issues that I wanted to raise. Finally, I ask you both whether the use of joint enterprise results in miscarriages of justice. Is that your view?

Dr Crewe

My view is that it makes it more likely, yes.

Andy McDonald

What is the degree of risk? Would you comment on the risk element of a miscarriage of justice occurring?

Dr Dyson

I would not know in what unit to express the risk, but I would say that it absolutely produces miscarriages of justice, although you would have to define the term a little. It does produce problems. In particular, one of the following two things or potentially both of them are true. The defendant is convicted on the basis of evidence, which the jury take to believe, that he foresaw a risk, which is typically only the presence of a weapon. He knew that the principal had a weapon. Therefore, the jury are willing to believe or find that he foresaw the principal would use it to commit serious harm, and/or we do not know who actually did it, but we think that we can put this person in a group who are sufficiently close to it. We cannot explain to these defendants why they are being convicted, and this is where some of the submissions by Dr Crewe show clearly that the defendants do not understand, when they are in prison, exactly what they have been convicted of, why they have been convicted and why it is a crime. Then they cannot engage with society’s view of what the wrong is and, if appropriate, adjust their behaviour and show the remorse that leads to early release. We are just generating more and more people who do not understand why they have been convicted.

Mr Llwyd

Dr Crewe, do you have a view on the reasons why the use of joint enterprise is resulting in such a disproportionately high number of convictions of black or black British and mixed-race young people?

Dr Crewe

Let me start by saying that, with regard to the data that are publicly available on this, there is very little of it. The data that we produced in our written evidence have arisen as a by-product of a study that was about something else—prisoners serving very long sentences from an early age. You will have seen from my submission that the disproportionate impact on BME men is clear in those figures. There are probably two main reasons for that. The first is that BME men may be over-represented in the kinds of communities where young men typically hang around in groups that are labelled by outsiders as gangs. I use that term carefully, because “gang” is a contested term. Our interviewees tended to say that what other people define as a gang is just a peer group. It may be a territorial peer group; it may be rather less than that. The term “gang” implies something well organised and criminally oriented, but for these young men the peer group often provides forms of safety, status and belonging that they cannot otherwise get in their communities. That links to the second reason, which is that an association may exist unconsciously in the minds of the police, prosecutors and juries between being a young ethnic minority male and being in a gang, and therefore being involved in forms of urban violence. Our interviewees certainly felt that juries were making prejudicial inferences about them, based on a series of questionable connections between their ethnicity and a propensity for violence. That may well be the second reason, but it is difficult for me to say that with complete confidence. The concern is that joint enterprise might be working as a kind of dragnet that pulls in disproportionate numbers of ethnic minority young men. Part of what is happening is that the normal kinds of social relations between young men, particularly ethnic minority young men in disadvantaged areas, are, in effect, being criminalised.

Jeremy Corbyn

I am very interested in what you are saying there. Do you have any evidence that joint enterprise is used less when there are groups of young white middle-class males hanging around in town centres, getting drunk and causing problems, as opposed to young black males, perhaps in Brixton or Finsbury Park, who might well be charged with joint enterprise? Do you have any evidence that joint enterprise is used less in the white middle-class community than in working-class communities?

Dr Crewe

I have no evidence on that.

Jeremy Corbyn

Do you have any evidence that it is used against better-off communities or not?

Dr Crewe

I have no evidence at all in that area.

Jeremy Corbyn

You said that it seemed to be used more as a dragnet. I agree with you; I think it probably is. But the opposite of that would be that it is used less somewhere else.

Dr Crewe

As I said, my study was not about police or prosecution practices. To some degree, I am basing what I say on interviews with prisoners serving long sentences. What I am trying to present is their perception of how joint enterprise is functioning.

Mr Llwyd

My next question probably arises from what Dr Crewe said earlier. In their written evidence, Sam Stein and Andrew Jefferies, both experienced criminal silks, say that the CPS guidance, in referring to potentially incriminating evidence of association, such as Facebook communications or knowledge that gang members carry weapons, fundamentally misunderstands the communities from which many of those charged with joint enterprise offences come. Do you agree?

Dr Crewe

Yes, I agree. I have read their submission, and I agree with almost all of it. I certainly agree with what I understand to be their suggestion that there is a certain amount of bravado and bluff involved in some of the statements made on social media by the sorts of young men caught up in joint enterprise, and that we should not be reading quite so much into those sorts of statements, with their slang and so on. Yes, I agree with their testimony.

Mr Llwyd

I am not excluding you, Dr Dyson, but it is more in criminology terms than pure law, is it not? Do you have a view on that?

Dr Dyson

The major problem with joint enterprise cases is the evidence issue, and this goes towards it. How do you solve multi-handed crime? The CPS attempted to suggest that certain types of evidence of association on social media could be used. It is grasping at ways to do it, because it is a difficult thing to do. Our solution at the moment is to have a law that enables you to convict essentially with almost no evidence of this kind of thing at all. It is mostly based on CCTV, ID and phone records, because people do not say anything, particularly in murder defence statements. I agreed with their written evidence earlier.

Mr Llwyd

Dr Crewe, your research demonstrates a considerable degree of uncertainty among those convicted under joint enterprise—a third of your sample did not know if they had been convicted as a principal or a secondary offender—as well as a predominant feeling of illegitimacy about their convictions. What is the reason for that?

Dr Crewe

The reason for not knowing whether you have been convicted as a principal or a secondary offender may well be because you were simply in shock when faced with a murder charge that you were not expecting to face. It means that taking in what is going on in court may be extremely difficult, and much of it will go over your head. It is worth remembering that our interviewees were not generally highly organised criminals in the traditional sense of the term. They had not chosen crime as a career in a highly reflective way; their lives were much more in the moment, yet suddenly they are confronted with something that is going to destroy their lives, turn their lives upside down. It may be that they cannot take in what is going on, but, as others have said, it is possible that all of this is rather complicated. It may be difficult for them to understand what is happening to them. Legal scholars find it difficult to understand, so why wouldn’t they? Even if they grasp the distinction between being a principal and a secondary offender, if there is no distinction between the charge and the sentence that they might face, perhaps how they are being charged is immaterial to them. The second part of your question was about feelings of illegitimacy. The simplest way of answering that is to say that the threshold for culpability is very low but the penalties are so high. It is both of those things, and also the gap between them, that is causing these feelings of injustice. To expand on that, many of our interviewees completely denied involvement in the offence for which they had been convicted or felt that they were just bystanders while a set of things was going on that they had no control over. There were others who said, “I accept that I am guilty of something,” or, “I accept that, to some degree, I might be held responsible for someone’s death, but I cannot accept the label and consequence of being convicted as a murderer.” That consequence is all the greater because our sentence lengths have gone up so significantly in recent years. The average minimum term for a mandatory life sentence has gone up, I think, from 12 years in 2003 to 21 years in 2013. Many feel themselves to have been involved only marginally in a situation, yet the sentence that they receive has a 25 or a 30-year starting point tariff. That gap is extremely de-legitimating. Often they will simply say, “How was it possible for me to have foreseen this act occurring when things were happening so quickly?” and they claim to have no idea of what was going to occur. Can one ever have the kind of foresight that joint enterprise convictions can be based upon? Those are the main reasons that I would give, plus the fact that a process of conviction may also feel illegitimate to them if they feel that decisions about their culpability were based on inferences about their ethnicity, or that there is a kind of collective punishment going on whereby they are convicted because evidence presented about co-defendants or about their general lifestyles is used to convict them.

Mr Llwyd

Finally, may I repeat a question that Mr Cryer put to an earlier panel? We know that the police and the Crown Prosecution Service say that the joint enterprise law is a deterrent against gang culture—I have used the gang word again. Is there any evidence about its effectiveness as a deterrent? Do you know of any?

Dr Crewe

I do not know of any evidence specifically about the deterrent effect of joint enterprise, but it is worth saying something about it. For deterrence to work, at least two conditions need to be met. One is that people are aware of the sanction or the penalty. As others have said, our experience in undertaking the research is that very few of our interviewees said that they had any idea of what joint enterprise was, or they had heard of it but understood it only vaguely, which is not surprising as it is difficult to understand. I suspect that awareness of joint enterprise has risen in recent years, so the term may have penetrated the streets, as it were, but I am doubtful as to how many people understand its details; and people may of course disbelieve an accurate description of it because it will feel counterintuitive to them that they can be held equally culpable for various degrees of involvement. The second condition that needs to be met is that, even among those who are aware of the sanction, it would have to have some impact on their behaviour. It has to have bite. We know from the research literature on deterrence that thinking that you will be caught has more of a deterrent effect than the length of sentence or the severity of the sanction. That is because the severity of the sanction feels quite remote from what you are doing at the time when you are committing an offence. There may be all sorts of other reasons why people involved in or present at the kinds of situations that are relevant to the Committee might not be thinking about the potential risks of what they are doing, or might not be able to act on them. They will include feelings of youthful invincibility, or being drunk or on drugs and not making very rational decisions about their involvement. It may be that events are taking place at a speed and with an intensity that makes it difficult to engage in rational calculation. It is also true that these are people whose lives are being lived very much in the moment, and who are subject to intense forms of peer pressure, including the fact that if one intervenes to prevent a violent incident one is at risk oneself, either from a potential assailant or from one’s own peer group whom you might be preventing from doing something. Loyalty is everything among many groups of young men, and to breach that loyalty may put you at risk. Deterrence involves a form of future thinking that might be challenging for the kind of people that we are talking about, who are living in a sub-culture where the present and the pressures of the present may be very intense.

Chair

Dr Dyson, in your written evidence you appear to welcome the Law Commission’s proposed clause, in its 2007 report, on assisting or encouraging an offence. Are you similarly favourable to its proposed clause on participating in a joint criminal venture?

Dr Dyson

I am well disposed toward the three-tier proposal of murder, second degree murder and manslaughter. I was content with the idea of the Serious Crime Act facilitation model. I am not in favour of joint enterprise—joint criminal venture. I do not think there is really such a thing as the Chan Wing-Siu principle, or that at least foresight should be sufficient for a second offence. As such, I do not see sufficient culpability for any liability based on a joint criminal venture. It should just be removed. So, no, I am not in favour of that part of the Law Commission’s proposal.

Chair

Are you saying that the Chan Wing-Siu principle does not exist?

Dr Dyson

Calling it a principle seems to somewhat overinflate what it is. It is a shortcut.

Chair

Do you mean by that that courts, in practice, take little notice of whatever principle it appeared to establish about foresight, or that it is simply too weak to be of any significance?

Dr Dyson

It is the latter. To me, a principle must have some normative force; it must have some internal logic. This simply says that, if you are in some way involved in a first crime, we can convict you easily of the second. The logics that we have attempted to come up with to justify that—one or two intelligent academics have attempted it; most have not—are either the escalation thesis or the normative change of position. With escalation, by taking part in one crime you make other crimes more likely; therefore, essentially as a form of strict liability, it should be easier to convict you of second ones. I do not particularly like strict liability, and I certainly do not see why it should be justified here potentially for murder, for instance. Normative change of position, which Andrew Simester argued for in 2006, essentially says, “You have changed your moral position by agreeing to one crime; therefore, it should be easier to convict you of later crimes.” I do not personally agree with that as a logic; it is not exact. He calls it a gateway sometimes. We removed that when we got rid of felony murder, and we do not agree with it anywhere else. I am not sure why we should agree with it in secondary liability. Perhaps it was a little flippant, but I do not think of this as a principle. It is a shortcut to enable us to convict, originally more easily and now just easily, those people who we claim are parties to joint enterprises.

Chair

Do you have any evidence on the use of the defence of fundamental difference?

Dr Dyson

Yes. There are a few things that fundamental difference is trying to do. Essentially, it is a safety valve. We feel instinctively that the law is treating a particular defendant very harshly, so we have created a safety valve. The first reason is that murder is constructive anyway. Under R v. Cunningham 1982, you only need to show an attempt to cause GBH and not death. That is a little odd, but the Law Commission proposed the change. That is quite harsh. The second thing is that GBH is a broad category. Breaking a medium-sized bone can be GBH right up to putting somebody in hospital for 10 months in a coma. There is a large range of what might be involved. The third thing is that you have only foreseen a risk of something happening, which we feel is a pretty low level of fault. The fourth thing is foresight of what somebody else will do—being an independent moral agent. The fifth thing is that it reflects the fact that you are not contributing to the second crime at all. Defendants are keen to find some way to exploit this. We created this fundamental difference test in Powell and Daniels and Powell and English in 1998 and 1999. I personally think that it should be “fundamentally more dangerous,” but we call it fundamental difference because almost always the evidence relates to a weapon, and it is a different weapon. The defendant wants to have use of this, and, as I said, there have been more than 15 Court of Appeal cases over the past 15 years. The law does not change dramatically, though arguably it did a little in Rahman, but defendants are constantly pushing at the borders of it because it provides a full defence. For some unknown reason, the House of Lords decided in 1999 that it would not convict you of a lesser offence when you have fundamental difference, which previously we had done. I pointed that out in an article in 2007, and Lord Justice Toulson, as he then was, specifically said in Mendez and Thompson in 2010 that it seemed odd the House of Lords did not do that, but it seems that it has now expressly said you should not. At least fundamental difference should only step you down, for instance, from murder to manslaughter, because you foresaw GBH being caused by just a different weapon, so why should you not be liable for manslaughter? From what I understand, it is used quite often. It is attempted as often as possible, because it provides a full defence and because it does not contaminate any other defences that you might be running. It is hard to run self-defence and loss of self-control at the same time. It is not hard to add this to any other defences that you are running.

Chair

Thank you very much. We are grateful to both of you for your evidence this morning. Oral evidence: Joint enterprise: follow-up, HC 310 20