Examination of Witnesses (Questions 71-104)
Q71 Chair: Dr
Green and Ms Morrison, welcome. Are you both involved in Joint
Enterprise: Not Guilty by Association? My note does not make that
quite clear.
Gloria Morrison:
Yes, we are.
Chair: We are grateful
to you for coming to give evidence. We know that you are looking
at the matter from a different perspective from that of the previous
witnesses, namely, those who get caught up in joint enterprise
cases, perhaps inappropriately or unjustly so. I ask Elizabeth
Truss to open the questioning.
Q72 Elizabeth Truss:
We have just heard from the two previous witnesses that, in prosecuting
cases, joint enterprise is sometimes used and sometimes not. Do
you think it is used in a consistent way across the country? What
would be your observation about its present use?
Dr Green: My response
to what we have just been hearing is that, of course, we do not
know of that particular case. The cases that come to our attention
are those where people have been prosecuted; those are the only
ones of which we know. To me, it sounded significant that one
of the witnesses said the police had lost DNA evidence in the
case. I wondered whether it was a case of incompetence rather
than making a judgment on the degree to which it was a high-profile
case. Our impression is that the police are extremely keen to
clear up every murder case and put whatever effort they think
is necessary into doing so. It would be very unusual for them
to make any distinction between something they deem high profile
or otherwise.
Q73 Elizabeth Truss:
You mention murder cases, but what about across the board in other
cases as well? We heard from the DPP that, in theory, joint enterprise
could be used to prosecute all kinds of cases. Can you tell me
a little more about where you think it is being used, where it
is being used inappropriately, and where it is not being used?
Gloria Morrison:
Very worryingly, joint enterprise is being used for the rioters.
You are putting together a group of people who might have gone
out to do something, which was to protest, but you did not do
that with the students. They were not prosecuted under joint enterprise
but the rioters are. You have a case involving 19 people, so you
are saying they are all involved in the same enterprise. To me,
it is such an abuse of the law that you are making it more elastic
so that you can group together as many people as possible. As
you will be aware, in the Victoria case, 20 young people
have all been convicted of one murder. Are 20 young people all
culpable to the same extent for that one murder? It is a high-profile
murder, but we do not know anything about it.
We also have a lot of low-profile cases. There
are high-profile joint enterprises but a lot of low-profile ones
that no one has ever heard about where people have gone to prison
for something they did not foresee, they didn't intend, and they
are serving life sentences.
Q74 Elizabeth Truss:
I am interested in what you say about prosecution to the same
extent in that prosecution. Do you think there could be more flexibility
within joint enterprise so that there is a different extent? Why
are all people being prosecuted to the same extent?
Gloria Morrison:
I think the law of joint enterprise is a mess—the idea that
you are going to have everybody knowingly having the same foresight
in an incident that could take seconds. I met a family at the
weekend. Four family members were walking home: the mum, her boyfriend
and two 15-year-old girls. Chelsea crossed the road to a known
drug dealer in the area, because she thought he was waving at
her. Chelsea was slashed there and there; it required
35 stitches. She is serving a life sentence.
Q75 Elizabeth Truss:
Is not the whole point that we want people to have more foresight
and this should act as a deterrent to getting involved in riots
or gangs? If there is a failure by people to take responsibility
for their own actions, that is something being addressed by this
law. Surely, the converse is that people are not expected to have
any foresight.
Gloria Morrison:
I am very interested to know how many of you actually understood
what joint enterprise was until, thankfully, you began this brief
inquiry. Young people are completely ignorant of this law. Most
of the people we are supporting have never heard of joint enterprise
until they are in the dock. Most of them, because they are innocent
and have not done anything, or have no culpability, are told by
their lawyers that they will not go to prison because they have
not done anything. I want to move you away from the idea that
this is targeting gangs. It is not. It is targeting anyone who
is on the periphery of a crime or—not even on the periphery—on
the end of a telephone. You can have a child who has sent a text
message to their friends saying, "Let's go and get them feds",
because of the riots. That is enough under joint enterprise to
convict them.
Q76 Elizabeth Truss:
Presumably, a jury will be there to make the decision whether
or not that individual is culpable. You have mentioned the riots
as well as gang membership. If the issue is that people are not
educated about the potential for being charged under joint enterprise,
is that not an argument for educating people and making it clearer
to people that they could be held responsible if they are involved
on the periphery of a riot or a gang? Is that not an argument
for better education?
Gloria Morrison:
There is definitely an argument for better education.
Dr Green: There
are a number of things. Education is patchy. Where I live in Sheffield
all the children already seem to know about joint enterprise.
I am not sure what effect it has; maybe it makes them stay in
and play computer games rather than go out with their friends.
It is also a question of the nature of deterrence in these circumstances.
I think someone else on the Committee referred earlier to fast-moving
incidents where anger flares up. I am not sure people develop
ideas about foresight or their role in it in the time. It seems
very unfair that they should be convicted of anything at all merely
through inferences being drawn from the fact that they are present
at a scene.
Q77 Elizabeth Truss:
But we are not talking about people going out with their friends
but about situations where a crime has been committed. I think
it would be preferable that people were playing computer games
at home rather than hanging around the periphery of a crime being
committed. To me, it seems like a strange comparison to make.
Gloria Morrison:
We have too many cases where you can talk about people going out
with their friends. They are with their friends, not a gang, and
something can kick off spontaneously, whether it is a punch or
a fight. This has always happened, but should everybody be involved
in that, or not involved in it, if someone has made a phone call?
If you have a law like this, the police are using it not just
as a deterrent but as a threat. Young people take a plea, say,
to the lesser charge of manslaughter because they know that under
joint enterprise they can get them all for joint enterprise. We
have cases like that. There is one case involving nine boys in
Liverpool. All of them took a plea of manslaughter because the
police said, "We can get you for 25 years on joint enterprise."
It is not an effective law that really roots out the guilty person
and the not guilty person.
The evidential bar is now lowered so much that you
do not need to use any real evidence to prove that someone had
the same foresight and intention. All you need to do is say they
were there. It isn't about gangs. You need to get away from the
idea that this is about targeting gangs. My 12 year-old son came
home with a DVD from the Met Police saying, "Did you know
that, if you are with someone and they commit an offence, you
too can be convicted of it?" He's 12. Should that be what
the police do? That is not education or keeping the peace; that
is threatening them.
Q78 Elizabeth Truss:
Ultimately, the jury will make the decision about whether that
individual is culpable, and that will be a decision the legal
advisers to those individuals take when they advise them whether
or not to accept a plea bargain.
Gloria Morrison:
In Laura Mitchell's case there was a 49-page route to verdict.
The juries often come back to the judge to say, "We don't
want to convict this person." They are very confused. They
can see who is culpable and they do not want to do it. The judge
will say, "No; it's a joint enterprise. You have to convict
or acquit." We have several cases like that. The judge will
tell the jury that it is a nod and a wink. Are you saying someone
should be serving a life sentence because the judge told them
a nod and a wink is enough? That is all it needs to establish
that it is a joint enterprise and they knew what the other person
was going to do.
Q79 Mr Buckland:
Thank you for coming to give evidence. I have read the annexe
to your submissions which relate to a number of accounts given
by people who feel they have been wrongfully convicted of offences
involving joint enterprise. Am I right in understanding—it
is no criticism—that your research is based upon accounts
given by individuals and their families who feel aggrieved because
of convictions?
Dr Green: No.
Chair: I did not hear
whether you said yes or no then.
Dr Green: Yes or
no to the answer?
Chair: You may have said
something else. It is just that the acoustics are not very good.
What was it that you said?
Dr Green: I am
sorry. I need to say that we are only starting on research. You
have been supplied with some examples. They did not come from
me; I have not done those. As to the cases I see, I consider them
researched when we have seen the evidence. In the end, our research
will not depend on accounts given by people. We will go to them
for explanations of things we do not understand in the evidence
at that stage.
Q80 Mr Buckland:
But at this stage in the cases you have presented to us, you have
not been able to see the evidence in the case, either for the
prosecution or the defence?
Dr Green: I do
not know the cases. Personally, I could tell you for any particular
case that I have seen or know about whether I have seen all or
some of the evidence and I feel I know it adequately or not.
Q81 Mr Buckland:
In any of the cases that you have been referring to directly or
indirectly have you seen the totality of the evidence in the case?
Dr Green: I have
not talked to you about any particular case yet.
Q82 Mr Buckland:
I ask Ms Morrison as well. Some of the submissions made by prisoners
were letters to you on behalf of the organisation you represent.
Gloria Morrison:
Yes.
Q83 Mr Buckland:
Are you able to tell us whether you have seen the evidence in
the cases?
Gloria Morrison:
We have asked for the summing-up, but I have visited a lot of
prisoners and families.
Q84 Mr Buckland:
I understand and respect that, but it is the case, is it not,
that you are giving evidence today on the basis of one side of
the story? That is right, is it not?
Gloria Morrison:
Yes, but especially in murder cases we never underestimate the
fact there are victims involved. Jean Taylor came to speak to
our families, so we know what they are saying. Our statistics
show that, at the moment, for every one murder, three people are
prosecuted and in prison, so the statistics will cover up the
fact that there are guilty people going free. Joint enterprise
is not a level playing field at all. From the data we have collected—yes,
it is one-sided—we are starting to see very clear common
denominators about how people can be convicted under joint enterprise.
It is about the evidential bar being lowered. It can be hearsay,
which is very frightening.
Q85 Mr Buckland:
With respect, how do you know that if you have had only one side
of the story? With the greatest respect, you cannot say that on
the basis of your research to date.
Gloria Morrison:
Then surely there should be research done.
Dr Green: I am
sorry. I am the academic here and I do feel I should respond to
that. I say again that we are only at the beginning of research.
There are very few cases that we have researched to an adequate
standard. We are only getting indicators of the type of evidence
about which we are seriously worried. To understand cases, obviously,
we look at the whole case; we look at the prosecution case and
the evidence. Until we have done that, I do not think we can form
an opinion. Gloria has just included those cases to give you the
strength of feeling and distress and so on that many families
express to us and to show why there is a powerful driving force
behind us. We have 260 cases where people have come to us. Is
it all right if I refer to a previous question about statistics
and the preponderance of types of cases? There is an overwhelming
number of murder cases; they are virtually all murder cases. I
am surprised Keir Starmer was not aware of this. As to the matters
we research—you have the latest figures—we take up
every reference in the media to cases being prosecuted.
Gloria Morrison:
There are 287 people currently charged with 87 murders. That is
just murder convictions, but joint enterprise is used for ABH,
GBH and burglary; it is used across the board.
Q86 Jeremy Corbyn:
Where do these statistics come from?
Dr Green: It is
a media trawl; that is all.
Q87 Jeremy Corbyn:
Explain to me what you mean by "a media trawl." You
have just given quite a significant figure. If we are to use that
as evidence, we need to know exactly where it has come from and
on what basis it has been collected.
Dr Green: In a
sense, these are indicators. We may miss things that are in the
media. Another member of our organisation regularly Googles, I
suppose, for information online and assembles that into figures
for us. It is only an indicator.
Q88 Jeremy Corbyn:
Have you any evidence of what happens on appeal in any of those
cases?
Dr Green: Relatively
few go to appeal.
Gloria Morrison:
Both Andrew and I have sat in on appeals. They are heart-breaking.
Often, on a joint enterprise, because there is so little evidence
to convict you, you need fresh evidence so you cannot get an appeal.
When you do get it, it is often based on whether the judge gave
a clear direction to the jury on intent or foresight. The judges
do not want to say they have made a mistake, even though it is
glaringly obvious that a lot of these people should not be in
prison. It is absolutely glaringly obvious.
Q89 Mr Buckland:
How do you know that?
Gloria Morrison:
Would you allow a 15-year-old blind boy to go to prison for something
he could not see?
Q90 Mr Buckland:
Are you talking about what the evidence is, because I have not
been involved in the case? The point is that you are making assertions
that are not based upon a full analysis of the evidence. I am
not criticising you; you are not in a position to do that because
only those involved in the case can do that.
Dr Green: I think
you are in a position to criticise us if that is what we are doing.
Chair: I do not think
that is the objective.
Dr Green:
I am trying to say that we are not in a position to make
these assertions as yet; we only have indicators about them. Our
plea throughout is for more research.
Chair: The Committee is
not in the business of criticising your campaign at all; it is
simply establishing the weight of the evidence before it and on
what it is based. We have to do that with all sorts of witnesses
who come before us, including Ministers and civil servants.
Q91 Ben Gummer:
Aside from evidence and data, there is an issue of principle here
in the cases you have cited in your annexe. It occurs in all matters
of joint enterprise. Someone who turns up at a crime happens to
be involved. Let's say they are not the principal in a murder.
They have a number of options. They can join in that murder; they
can stand by and do nothing; they can intervene and try to stop
it; or they can go and tell the police. It seems to me that what
is missing from your line of argument is how the law recognises
the person who intervenes and who is clearly in a different moral
position from the person who does nothing and, in one instance
given here, says, "I was merely a witness to this crime."
Now "merely a witness to this crime" is a different
degree of culpability, or non-culpability, from a case where someone
actively goes in and tries to stop the crime happening. I am a
bit concerned that, if we follow your line of argument, we are
losing the ability to support the person who does the right thing
rather than just does nothing.
Dr Green: Our concern
is with people who are innocent. I think the legal position is
that the person who does nothing is not guilty of anything.
Q92 Chair: That
is not necessarily the case if the person had foresight that his
accomplice was going to do this.
Dr Green: Then
in a sense it is the point at which you become involved. If you
are walking by and see something happen, you are not responsible
for it. If you knew it was going to happen, I agree that you are
in a different position. Our concern is with people where the
court is told they have foresight on the basis of very tenuous
evidence. We think that evidence is inadequate. Our concern is
about the evidence in such cases.
Q93 Mr Llwyd:
It may be that the doctrine of joint enterprise is not quite as
blunt a tool as you say it is. For example, several dozen of the
students who occupied Harrods last year were charged with a joint
enterprise offence and the prosecutions were discontinued. I just
make that point in passing. I disagree with Ms Morrison about
appeals. In my hand, I have a whole list of cases that have gone
to the Court of Appeal and we are now awaiting a very important
case before the Supreme Court such is the concern of the legal
establishment about the position. To say that there are very few
appeals is, I am afraid, utterly incorrect. It has been suggested
that the abolition of joint enterprise would allow guilty parties
to go free. Do you agree, and if so, why?
Dr Green: It is
a difficult question. I do not agree on the basis that people
would not go free if cases were adequately investigated. Because
cases can go to court so easily and be successfully prosecuted,
the police neglect to do anything else in the case. They are succeeding
by getting evidence of phone calls, shared car use or getting
people to act as witnesses. Because they can do it that way, they
do not go looking for DNA or whatever. If they investigated more
thoroughly, they would be able to get prosecutions of the people
precisely responsible rather than those who are caught up in it
simply because they have made or received phone calls, or something
like that.
Q94 Mr Llwyd:
Is it right your contention is that a joint enterprise prosecution
is the subject of a less stringent investigative process?
Dr Green: I think
so. Certainly, I am not alone in saying that the bar to prosecution
is set very low. I think someone on the Committee and numerous
eminent lawyers have said it. There are a number of quotations
on that subject. Everyone agrees it is much easier to get a prosecution
using joint enterprise rather than prosecution of an actual perpetrator.
Gloria Morrison:
We do address the idea of the wall of silence. Real gang members
will know that you do not say anything; you do keep the wall of
silence, whereas often the families we are supporting are people
who have done the right thing. They have told the police everything
they know and have given themselves up to the police; they have
witnessed something and gone in; they have tried to do what they
think is the right thing and tell the truth, and they have received
sentences under joint enterprise. What is the right thing to do
is a very murky area. I go around and talk to young people and
ask whether they know about joint enterprise. Many young people
do not. They say, "What do we do if we are in a situation
where somebody else is there?" I do not know what to tell
them.
Q95 Mr Llwyd:
When I was a youngster my father, who was a police sergeant, said
that if any trouble broke out I should go away from it. That is
a good line, is it not?
Gloria Morrison:
Yes, but that is not necessarily going to be enough.
Q96 Mr Llwyd:
Are you saying that you want to do away with this 300-year-old
law altogether?
Gloria Morrison:
We would like to know how many people have been convicted under
joint enterprise. If you have a law being used as sweepingly as
joint enterprise, surely you should be able to quantify or qualify
how effective it is.
Mr Llwyd: Yes.
Gloria Morrison:
At the moment, nobody has any data or statistics. All we have
are the families who have contacted us. We are in a very frightening
situation where nobody can tell us how many people are currently
serving sentences. There are people who have served over 30 years
because they maintain their innocence, which is another area of
this. If you are convicted under joint enterprise and you will
not admit to being guilty of an offence, that means you are a
denier. If you maintain your innocence, you will serve a lot longer
than the person who has committed the offence.
Q97 Chair: How
do you deal with a situation where two people are present in a
closed room and a very serious assault is committed against a
third person? It is not clear who delivers the most serious blow
and neither will explain his actions or that of the other. If
one of the persons is not guilty, he can give appropriate evidence
or argue in his own defence that he has not done anything, but
the two remain silent so as not to incriminate themselves.
Dr Green: We have
had cases that match exactly what you say. I do not think it has
ever become clear in the couple of cases that have come to us.
It did not become clear in court. There was one particular case
where a jury apparently asked whether they could convict one and
not the other, and the judge said, "No; you convict neither
or both." In those cases that is the standard advice judges
give to juries, but that is a small minority of the cases we deal
with; normally, they involve more defendants.
Q98 Mr Llwyd:
Are you saying that we need greater clarity and statistics to
show how often these cases come up?
Dr Green: I would
ask for the statistics to be compiled. I think it would be possible
for the CPS to do it. I would like the opportunity to ask Keir
Starmer whether he could do it. He could simply ask all his prosecutors—he
could send them an e-mail—how many cases involving joint
enterprise they had prosecuted in the last year. At least we would
have some statistics. But we are more interested in evaluating
what kind of evidence is used in what cases, and, hopefully, whether
it was reasonable for inferences to be drawn from tenuous evidence.
I do not know how many of those there are and what they are like.
Those are the cases that come to our attention. Are they typical
or not? I do not know. That is what we would like to research.
Q99 Mr Llwyd:
This brings me back to Mr Buckland's point. In doing this work,
you must ensure that you have both sides of the story and the
full case from both perspectives.
Dr Green: Yes.
There is no point in our doing research on any other basis. It
is not valid and we will not help people if in cases we neglect
a prosecution point. We invalidate what we do.
Q100 Jeremy Corbyn:
In the research you have done so far what recommendations would
you make about altering the law of joint enterprise? You mentioned
the way that in your view the police do not pursue any forensic
evidence once they have established that an individual was present
at the scene of a crime. Do you have any thoughts on what you
would suggest?
Dr Green: I am
sorry.
Q101 Jeremy Corbyn:
If you were doing an investigation as we are into joint enterprise—you
have obviously thought about it a great deal—what sort of
change would you want to see in the law?
Dr Green: I should
say, first, that I am not a lawyer; I am a criminologist.
Q102 Jeremy Corbyn:
Neither am I. In this Committee it is all right not to be a lawyer.
Some of us are not lawyers; I am not a lawyer.
Dr Green: I preface
my remarks by saying I am not a lawyer because I do not know how
to frame law in practice. We are concerned with the evidence.
I do not know how to put into statute that you should be careful
about evidence. If we look back over the last 20 years, evidence
relating to mobile phones, which is a particular concern of ours,
has now come into use. They were not available previously. It
is now very widely used. I do not feel that you can make a universal
law about types of evidence or anything like that. The situation
changes and types of evidence come and go. I do not know how to
frame it. But our concern about evidence, if we are right about
it, needs to be fixed in a definite way so that it cannot be ignored
in cases where juries draw unwarranted inferences, which are open
to the introduction of prejudice on the part of people who think
it is up to them to judge the person in the dock by the colour
of his skin or whatever. I feel that the whole situation is open
to that, and perhaps it explains why, as a rough estimate, 60%
of our cases involve ethnic minorities.
Q103 Jeremy Corbyn:
Technology has moved on a great deal and it is now much easier
than 10, 15, 20, and certainly 30 years ago, to identify who was
in what place at what time. Recording mobile phone calls is very
easy; identifying the location of a mobile phone is not difficult.
CCTV records where people are in a lot of urban locations, as
does CCTV on buses, trains and so on. It is easy to prove that
someone was there. My concern, and probably yours, is whether
the collection of evidence of presence is simply being used to
remove any requirement for any further evidence in your experience.
Dr Green: In our
experience, some of the evidence is not as definite as you suggest.
To identify someone's position is not that precise. Sometimes
it is very precise and sometimes not, and experts still argue
about this extensively. Your second point was that people are
convicted on evidence of presence. On the basis of a few cases
I have seen where people claim that has happened to them—I
have looked at the evidence extensively—that seems to have
happened in my opinion. I feel that these cases are extremely
doubtful and it is happening because juries can draw all the necessary
inferences from presence at the scene, if they wish to do so.
Gloria Morrison:
We can provide the Committee with current data on trials or convictions.
Jeremy Corbyn: That would
be very helpful. I understand some of this from what is going
on in my own community, but there is a lack of evidence of what
happens on appeal, and the timing and length of appeals. I have
heard of cases where people are trying to get retrials or appeals;
they are in prison for a very long time, and justice delayed is
justice denied. Therefore, any further robust evidence that you
can offer would be very helpful.
Q104 Chair: Dr
Green and Ms Morrison, thank you very much. We are very grateful
to you for coming this morning and giving evidence to us.
Dr Green: Thank
you for hearing us.
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