Examination of Witness (Questions 105-133)
Chair: Professor Horder, welcome. We
are very grateful to you for coming in to give us the benefit
of your capacious knowledge on the subject of joint enterprise,
a subject that some of us have come to later in life, if I could
put it that way. That, of course, does not apply to Yasmin Qureshi,
who is going to open the questioning.
Q105 Yasmin Qureshi: Good morning,
Professor Horder. The Law Commission effectively carried out two
separate inquiries, one into joint enterprise and one into secondary
liability. What was the thinking behind that? Would it be possible
to produce one Bill to cover all aspects of those types of scenarios
and problems?
Professor Horder: It is a great
honour to be invited here, and I am delighted.
May I clarify one point? There were two separate
investigations conducted by the Law Commission: one was on inchoate
liability, which is now part of the law in the Serious Crime Act
2007; the other was on participating in crime, whether by assisting
and encouraging or by joint venture.
You put a good question. The answer is that
originally the investigations were meant to be part of one complete
project. However, the Law Commission got bogged down, as many
others have, in the problems relating to complicity in murder.
We were also, during the course of the participation project,
given the task of reviewing the law of murder, so it seemed sensible
to shift complicity and murder over into the review of murder.
That rather left doing a review of complicity and, at the same
time, the serious crime aspects of inchoate liability a bit difficult
to carry off. It would have been a bit like "Hamlet"
without the prince, if you did complicity without murder.
As it happened, there was an opportunity—a
train coming by, if you like, which the Ministry of Justice invited
us to get on board—with regard to inchoate liability, because
we had pretty much finished that first aspect. So we decided to
get on that legislative train with inchoate liability, but fully
anticipating that, when we ultimately produced our report on complicity,
the two bits of the puzzle could at that point be joined together.
One consequence of their not being joined together is that the
language and the concepts used for inchoate—that is, incomplete—liability
in the Serious Crime Act are similar but not the same as those
used in common law and under the Accessories and Abettors Act
1861 for participating in crime.
The downside is that in practice that means
it is too complicated for prosecutors to charge someone as having
been complicit in a crime, as having committed that crime through
complicity. The alternative—should the jury not find that
they were complicit in the crime but none the less provided assistance
and encouragement of some kind and should be guilty of that lesser
offence—was what we wanted. We wanted to have inchoate liability
as a way of backing up a complicity charge, if I can put it in
that loose and slightly misleading way, but that cannot happen
very easily at the moment.
My understanding is that the Serious Crime Act
has taken on a life of its own and is not being used in complicity
cases.
Q106 Chair: Not being used in
which cases?
Professor Horder: Complicity—joint
enterprise—cases. I am sorry; there are a lot of different
terms for these things.
Chair: No, it was that the door opened
just as you said it.
Q107 Yasmin Qureshi: Could you
explain to us the interrelationship between different types of
secondary liability? Is that interrelationship linked with the
reform of the joint enterprise concept on its own. How do the
two rest together?
Professor Horder: I can try. Basically,
in law there are three types. I hope that this will not turn into
a tutorial, because that would be a bit of a waste of your time.
Q108 Chair: No, it would be very
helpful.
Professor Horder: There are three
types, basically. Some scholars dispute this, but let us take
it that there are three.
The first type of complicity is where you provide
some assistance or encouragement without being part of a criminal
venture. What would be an example? Let us suppose I support the
Reds, and I see some other group of Reds supporters beating up
a Blues supporter. I know that some police are coming, because
I have heard them, and, without making contact in any way with
the gang doing the violence, I run back to the police and I point
them in the opposite direction, so that they will not be able
to intervene. That makes me complicit in the crime if I intended
to provide assistance and encouragement, which I did, even though
I was not part of the attack. That is not really what we are concerned
with here. Fortunately, the principles relating to that are fairly
well settled, so we can leave it on one side.
The second type, where we get closer to the
problems that most of you are interested in or concerned by, is
what is sometimes referred to as plain vanilla joint enterprise.
That is where you and I, let us say, agree to commit murder. The
idea is that you will stab the victim while I keep a look out—or
there is some division of labour of that kind. The point is that,
although I do not do any stabbing, shooting or anything of the
kind, I none the less intend that it will be our joint activity
to kill the victim, and I am playing a role in that. Again, there
are no real problems there. That is the normal way in which people
are charged on a complicity basis. It is a settled part of the
law and does not need changing.
The third way in which this situation comes
about is the most controversial one, but we need to have the other
two in mind, otherwise we are at risk of getting confused. Let
us say that we have a joint criminal enterprise, except this time
you and I are not going to commit murder; we are going to commit
burglary. It is exactly the same as before, but we both intend
to commit burglary. I am going to keep watch at the door while
you go in and ransack the house—a straightforward case.
However, I am of course aware that there may be someone in the
house when you go in and ransack it.
I am also aware—saving your pardon, Ms
Qureshi—that you are an unpredictable person, who is liable
to respond with extreme violence if you are confronted or challenged
in some way. I know that, but it is not part of the plan that
you should kill anyone. I do not even know if there is someone
in the house. I am just a burglar, like you, but I know that you
have this propensity.
We burgle the house and, sure enough, you are
surprised by the householder and you stab them to death. Let us
not get into the question about householders and their rights
to defend against burglars. The question now is: should I be guilty
of murder, not just burglary, which is obvious because we both
intended to commit it and we did commit it? Should I be guilty
not only of burglary, but of murder? In that situation, what the
common law says, and has consistently said, is yes. The reasons
for that are, first, that we were both involved in a joint criminal
venture—burglary—and, secondly, that I realised that
in the course of that burglary you might, in this instance, kill
somebody.
I have deliberately chosen that particular example
because it is relatively straightforward, but notice that it is
going a bit further than plain vanilla, because we did not set
out to kill the householder. We set out only to commit burglary,
but I knew what might happen and that was indeed what happened,
and yet I carried on committing the burglary. That is the basis
on which the common law justifies convicting me of murder, too.
None of that would be before us today or be
controversial were it not for a problem that arises about the
definition of murder. This is not necessarily wrong in relation
to a perpetrator, to him or herself, but as you will know murder
involves intentionally killing someone, or killing someone while
intending to do the person serious harm and they die. An example
would be repeatedly stamping on their head or stabbing them in
the thigh and hitting an artery, and the person dies. You will
still be guilty of murder if you intended to do serious harm,
even if you did not intend to kill the person.
That poses a problem in joint enterprise cases.
Let us say that we are involved in a burglary. This time, I
am aware that you might knock the householder about quite severely
so that they do not put up resistance. I know that that happens
because we have done it before. We have been on a burglary, you
rough them up pretty severely and that enables us to complete
the burglary, but it never crosses my mind that you might actually
kill someone deliberately. However, we are both in a joint enterprise
involving burglary. I anticipate that you may do some serious
bodily harm to somebody in the course of the burglary, even though
I am not aware that you may kill. That means that I am aware
that you may act with a fault element for murder: you may act
with an intention to kill or with an intention to inflict serious
harm. The fact that I am aware that you may act with a fault
element for murder means that I, too, am guilty of murder in such
an example.
The courts have drawn back from convicting me
in those situations. They have said that, in the case when we
commit burglary or some other crime and I anticipate that you
may inflict serious harm, but I do not necessarily think that
you will kill someone, if you do kill someone, obviously you are
guilty of murder. I would be guilty of murder only if there were
no fundamental difference between what you did and what I anticipated.
In some circumstances, there might be no fundamental difference.
So if I thought that you would stab someone in the stomach and
they would still survive, but instead you stab them in the throat
and they die, there is not a sufficient fundamental difference
between those two things, so I would still be convicted of murder.
How common law has tied itself in knots trying
to understand or give extra detail to the meaning of "fundamental
difference" is that the courts have toyed with the idea that
you must use a more lethal weapon. If you do use a more lethal
weapon than I anticipated, I would be able to escape or, if not,
not. But that raises all sorts of difficult problems. Is a heavy
boot a more lethal weapon than a small knife, for example? It
is impossible to say.
You could just say, "Oh well, let the jury
decide in each case whether there is a fundamental difference,"
and that is what the Ministry of Justice's draft Bill purported
to do when it said that the question would be, "Did you—the
perpetrator—'go so far beyond' what I anticipated that it
would not be right to convict me?" Unfortunately, the courts
have not been able to leave it alone in that way, and every time
the thing has come back to the Appeal Court in the House of Lords
they have added a little extra qualification or rule, such as
whether I was aware that you were carrying the relevant weapon,
even if I did not know you would use it. The whole law has got
very complicated.
Q109 Yasmin Qureshi: Would you
say therefore that the courts are now applying it narrowly and
more restrictively than they should be, or do you think they have
the balance right?
Professor Horder: There are two
solutions. One is a wishful thinking solution, which is that you
could tinker a bit with the fault element in murder and, if you
did that, the problems would go away; but we know we cannot do
that because although the Law Commission recommended a change,
the Government decided not to take it forward, and I do not suppose
that the present Government will take it forward either, so that
is a closed door. I should mention that, though, if only because
the law of complicity on joint enterprise is being distorted or
twisted by the need to account for a defect in the law of murder—I
have to say that because I know many of my colleagues share that
view—and what we are doing now is only trying to put a bit
of sticking plaster over a problem in a different part of the
law.
None the less, and taking that on board, the
courts first tried to do justice in a rough and ready way by introducing
the fundamental difference rule—that is where I saw that
you might do serious bodily harm but, in fact, you killed and
the courts say, "Is there a fundamental difference?"
That was meant to be generous to the secondary party, in an understandable
way. However, as I said, they have not been able to resist the
temptation to add on qualifications that narrow the scope of the
fundamental difference rule a little bit, so the policy of the
law is rather unclear at the moment. What is that rule meant to
be doing? Is it meant to be convicting more people or acquitting
more people, and in what way? The courts have lost their grip
on what the policy of the law should really be, which is why we
need a fresh start.
Chair: I think we need to move on, in
view of the time.
Q110 Mr Llwyd: Good morning, Professor
Horder. Your response takes me back to my student days. I had
flashbacks of "Smith & Hogan" and all kinds of things.
That is not a criticism, by the way. It is very interesting.
With regard to secondary liability, the Law
Commission report "Participating in Crime" stated: "The
doctrine of secondary liability has developed haphazardly and
is permeated with uncertainty"—so much so, in fact,
that the Commission said that it should be resolved by legislation.
The report also acknowledges that there were severe problems with
the parity of culpability. I presume those problems are still
with us. If not, have they moved on at all due to case law?
Professor Horder: Not much, no.
As I was trying to explain, I think that case law has provided
some extra clarifications, but my belief is that the courts have
lost a grip a little bit on what the policy is meant to be. They
have not been able to resist the temptation to introduce extra
little rules that have to be given in every direction up and down
the land in complicity cases, particularly in murder. The whole
of the law is being distorted by what is necessary in order to
do justice in murder cases, which I think is very undesirable,
so I do not believe that the situation has improved. I know that
Sir Richard Buxton, for example, thought that the problems were
all solved by that decision of the House of Lords in Rahman in
2008, but he would find very few supporters in that view. It seems
to me that that decision opened up a fresh set of questions, and
I think most commentators agree, so it is still a bit of an open,
festering wound, unfortunately.
Q111 Mr Llwyd: In effect, you
are saying that there is still a call for legislation to clarify
all the issues?
Professor Horder: Yes, there is,
except if you are going to take the view, which broadly I would
support, that juries listen to all the rush of words, look at
what would do justice and then try to do that, because they know
that if they tried to follow the rules they would get into an
awful muddle. That, though, in the end is not really a very satisfactory
outcome, I think. I could not put my hand on my heart and say,
"This is causing injustices up and down the land"—that
would be an exaggeration—but, yes, I think everyone would
agree. Lord Phillips said in a speech on this matter that he thought
there was certainly a need for legislation to address the problem.
Q112 Mr Llwyd: On what you said
just now about injustice probably not being done all over the
place, do you believe that public policy considerations—public
concern about gang-related violence, for example—have affected
the development of joint enterprise?
Professor Horder: Inevitably,
because almost all the cases of any significance coming to the
Court of Appeal and the House of Lords have involved, in one way,
shape or form, gang activity, so murders arising out of such activity
have helped to shape and determine the law, essentially. We have
to be careful here, though, because, of course, gang activity
includes, in one sense, two people going out and committing a
crime together, in one sense or another. I do not know that a
gang has to include more than two people in order to be a gang.
Of course, the decision central to this whole area of the law
is Chan Wing-siu and the conjoined appeal in English, and one
of those cases involved just two defendants—but putting
that point to one side, yes, the law is inevitably being driven
by concerns about that because all the cases are about that.
Chair: We will come to Chan Wing-siu
in a moment.
Q113 Mr Llwyd: Yes, we are all
looking forward to Chan Wing-siu.
Finally, given that there is legal uncertainty
at the moment, do you believe that we should be looking for greater
certainty, first, to prove as an effective deterrent and, secondly,
to encourage witnesses who might be on the periphery of events
to come forward and give evidence?
Professor Horder: The point about
deterrence can be a bit of a red herring, because in order to
be deterred you have to know what the law is, and although the
police message on this is very strong—if not necessarily
100% accurate, but one would not expect it to be—I am not
sure how much deterring this really does, to be honest.
Q114 Chair: We had two witnesses
who represented victims in front of us last week; they came from
Liverpool and, perhaps slightly to our surprise, they believed
that awareness of joint enterprise and the likelihood of being
done for it was quite widespread among young people.
Mr Llwyd: They talk of little else on
the Anfield omnibus.
Professor Horder: Yes, it may
be. I have no better basis than they do for making the claim that
I do, so I will not pretend to be more expert than they are. I
do not know. It is hard to say, really. The reality is that when
a confrontation is going on—shouting, pushing, shoving—and
it begins to escalate, I would have thought that the last thing
on your mind is going to be the rules of joint enterprise. The
reality is, I think, that it is not likely to be a big deterrent,
but it may be.
I have not mentioned one serious problem related
to the deterrence point that means that, in fact, the law may
not be deterrent enough. In the situation, if I may go back to
it, where I anticipate that in the course of a burglary you may
rough up the householder quite severely but I have no idea that
you are going to kill them, which is what you do, the law currently
says that not only am I not guilty of murder, but I am also not
guilty of manslaughter. I am not guilty of any homicide offence
because the killing takes place outside the scope of the joint
venture, so I am only guilty of burglary.
That might surprise a lot of people, and it
certainly surprised us when the decision came out at the Law Commission
when I was there. We proposed a provision to fill that gap, so
that in that example I would be guilty of manslaughter, if not
murder, and the Ministry of Justice followed that up with such
a provision. I would have thought that actually, if a potential
witness knew anything about the rules, it would be a worry that
the person might in fact escape liability for both murder and
manslaughter in that situation.
We have to think about vulnerable witnesses
or witnesses who need protection as a slightly separate problem,
however, because that is about the way that they give evidence
and the protection that they are given by the police, and it is
more to do with criminal procedure and evidence. While those are
important supporting elements to the joint enterprise rules, they
are the substantive rules of law, which I am primarily concerned
with. I do not underestimate the importance of rules protecting
witnesses, although you will know that that gives rise to a number
of problems about the right to confront evidence against you and
so forth.
Q115 Chair: Might a witness fear
that they could go along to the police, having been on the periphery
of a crime, and offer to be a witness and then get done for joint
enterprise anyway?
Professor Horder: That is a possibility,
yes. It is always possible that a would-be witness then becomes
a suspect. That is possible not least because your aim might be
to get your story in first and try to deflect attention from yourself,
so you might have a not-very-good reason for doing it. On the
other hand, of course, you might be just trying to do your civic
duty and find that it gets thrown back at you. All of those are
possibilities, but I simply do not know how common they might
be.
Q116 Jeremy Corbyn: First of all,
thank you for coming, Professor Horder. It is very helpful. Can
I take you back to the Chan Wing-siu principle? Why has it been
retained? Perhaps you could explain exactly what it is, because
it is a new concept to many of us.
Professor Horder: Yes, I am glad
you mention that, because it is a controversial but ultimately
I believe sound principle. The principle is pretty much as I explained
in the example, and I will keep using the same example, because
I find that it is helpful for us all to concentrate, but do tell
me if you are not finding it helpful.
The Chan Wing-siu doctrine says that if you
and I go along to commit a burglary and you commit a murder, what
is it that has to be shown about my state of mind to make me guilty
of murder as well? Do I have to have agreed to commit the murder
as well as the burglary? Do I have to have thought to myself,
"Well, if you commit murder in the burglary, so be it"?
What exactly is the fault element? Or, at the other end, could
it be, as it is in some American states, merely that it would
have been obvious that you might commit murder, whether I realised
it or not? That is a purely objective form of fault. What they
settled on in the decision in Chan Wing-siu was that if you commit
the murder in the course of the burglary, I must have foreseen
that that the murder might occur as a realistic possibility, not
a purely fanciful one, yet I carried on to commit the burglary
along with you and sure enough, that is exactly what happened.
I must have anticipated that it might occur.
Now, those who criticise that as too remote
a basis for liability—in other words, I am not being required
to be sufficiently culpable—may make a number of different
claims, the strongest of which would be that if I am going to
be complicit in a murder, I should have intended that that is
what you commit. That would be the strongest form of restriction
on complicity. Although I can see why somebody might make that
claim, ultimately I think it is not very persuasive because it
is inevitably part of a criminal enterprise that we all take part,
knowing that we have different roles to play—I may be the
person waiting in the car, someone else may be keeping a look
out, and so on and so forth—and murders often occur in the
context of activity jointly co-ordinated by more than one person,
where it is unrealistic to expect that everyone involved intended
that there should be a killing, if I can put it that way. It could
be, for example, that I know perfectly well that you are going
to do it and I carry on none the less, and that is enough to make
me liable, even though I did not intend it. That is the principle,
for example, in international law.
Q117 Jeremy Corbyn: But we are
talking about numbers here. If three young people go down the
road together to sort somebody out for some previous dispute and
one person ends up assaulting a victim who subsequently dies,
you can kind of work out how a court might decide that the other
two were complicit, because it had been discussed beforehand.
In another example, however, of 30 or 40 people on a bus, travelling
together and going to the same place, and somebody gets on the
bus who is perceived to be a member of another gang, so a fight
breaks out and the other gang member ends up being killed, it
is difficult to say that there had been a prior discussion between
30 or 40 young people about what might happen to someone else
who gets on the bus. The circumstances are not that different,
only the numbers.
Professor Horder: Those are good
examples, and there are two points on them, which I will make
to distinguish them. One is the question whether there needs to
have been planning or discussion beforehand. The law says no,
for a good reason. If we go back to my example where I am a Red
and I see a group of Reds attacking a Blue, suppose I go up and
just join in with the rest of them in the beating up of the Blue.
I will be guilty of complicity in that crime, even though there
was never any discussion or agreement; there just acceptance that
I joined in on the spur of the moment.
Q118 Jeremy Corbyn: The evidence
would be that you joined in.
Professor Horder: Yes indeed,
but there would not have been any discussion or agreement beforehand.
It has never been the law that there has to have been that. If
people join in full-bloodedly in the course of a fight, they are
complicit.
The question of numbers is problematic. The
laws on complicity were not drawn up with the kinds of scenarios
in mind where you have large numbers of people either on a bus
or milling around in a particular place where a fight or something
of that nature is going on. They were not drawn up to accommodate
that.
Q119 Chair: What were they drawn
up to accommodate?
Professor Horder: They were drawn
up to accommodate the notion that people have different roles
in the commission of an offence and, more worryingly, the fact
that there are more people involved will increase the risk of
the offence occurring. There is a string of cases about duelling,
in which the question is whether the doctors and seconds attending
the duel are also guilty of murder. Of course, in applying the
principles I have just explained, the answer is yes, they are
all guilty of murder, because they all foresaw—even though
they did not intend—what would, or might, happen. The more
important point about those examples is that the very fact that
seconds and doctors are attending will make the duel more likely
to go ahead, or it may well do, because the participants will
feel they cannot back out.
What is true about human nature in relation
to those old duelling cases is, I would suggest, pretty much true
of human nature now. Where you have people with a role to fulfil,
and everybody is expecting and ready to go, it is difficult to
pull out. That is one of the justifications for having a joint
enterprise system of liability. However, I completely accept what
may be your implicit point, and please correct me if I am wrong,
which is that there is a terrible temptation to charge—I
do not say indiscriminately—everyone involved in the gang
or who has some association with it.
Q120 Jeremy Corbyn: That is exactly
my point. The police have a difficult job identifying a killer,
in the event of that happening. Perhaps they get CCTV on an individual
carrying out the act, and that is then constructed as appropriate
evidence. My concern is that the police are then in a position
to make a very wide number of arrests of just about everybody
who was anywhere near the scene, and they can charge them all
under joint enterprise. The police do not have to provide vast
amounts of evidence of any sort, other than that those people
were present at the scene, even though they may have barely known
each other.
Professor Horder: I shall assume
that everyone here—the police and prosecutors—all
act in good faith, but even if they do, the problem that you mention
is a serious worry. I completely agree with you, and in one of
my questions here, there is a suggestion that guidelines might
do a lot to ameliorate some of the harshness of the law. It is
in exactly that kind of example that they could. I do not think
you can change the substantive law to address the problem you
are dealing with. Obviously, it would be arbitrary to say, "If
there are more than six people…". That does not make
sense—it reminds me of the old days of the sixth picket,
or whatever it was.
Q121 Jeremy Corbyn: Yes, I was
thinking of the picket line being more than six—that was
completely arbitrary.
Professor Horder: Yes, but if
the people involved—the Director of Public Prosecutions,
the Attorney-General, and so on—could get together and decide
what threshold must be met before it would be appropriate to charge
people on that basis, I, for one, would be very relieved. It is
there, I think, that there is a real risk of injustice, because
it is inevitable that everyone who is arrested in that scenario
will say, "It wasn't me. It was the other person." That
is also what the perpetrator will be saying, of course. It will
be very difficult for a jury to distinguish between the credibility
of those claims unless the police and the prosecution exercise—I
do not say greater restraint than they are doing, as I am sure
that would be controversial—restraint in accordance with
principles. That is very important.
May I make an important observation? Despite
the real problems involved in joint enterprise, we need it, otherwise
there will be serious cases of injustice where the perpetrator
has fled. There was a case in which two men entered a jewellery
store, and the jeweller was stabbed to death. The perpetrator
absconded and has never been seen or heard of, and we were just
left with the secondary party, who was convicted of murder. It
would be appalling if, merely because the alleged primary party
were not around, you could not still convict secondary parties
in such a situation.
Q122 Jeremy Corbyn: This is the
last point from me, because others want to come in. Do you not
accept that there is a perverse effect in this law? The general
wish of society is to reduce and break up gang culture, for all
kinds of fairly obvious reasons, but the law of joint enterprise
means that it is possible for a prosecution to be made successfully
against a young person, however peripherally involved, who was
in the wrong place at the wrong time and followed a crowd down
the street. They then end up with a criminal conviction and probably
a sentence, as a result. That actually creates greater solidarity
among young people who are frightened of the use of the law and
therefore they stick together, rather than the other way around,
where there has to be detailed, specific, forensic evidence against
each individual.
Professor Horder: I completely
agree that if someone were convicted in that circumstance it would
be appalling and a travesty of justice, and it may well have the
effects that you suggest. I would just make the point that of
course merely following the crowd would never be enough to convict
you; you would have to know the substance of what is going on,
because otherwise you cannot foresee that the offence may be committed,
and that should be a tough burden for the prosecution to surmount—at
least in theory.
The other point of course is on forensic evidence.
I do not know of any instances, or at least none that come to
mind, whereby a case has to turn on such evidence. The law has
always taken the view that testimonial evidence is as good as
any other evidence, subject to whatever warnings may have to be
given to the jury about the unreliability of it, so I am not sure
I would want to go down that road. I completely agree however
that that is exactly kind of case in which guidelines have to
be followed, and the police and prosecutors take the utmost care
to ensure that injustices do not occur, especially in murder cases,
where they all get the mandatory life sentence.
Q123 Mr Buckland: Professor, are
we not we really dealing here with rules of evidence, rather than
rules of law? There is a difference between the two, isn't there?
Professor Horder: Yes.
Q124 Mr Buckland: Rules of evidence
depend on the evidence in each case. For example, in burglary
it has been well established that if somebody is caught in recent
possession of items that were the subject of a burglary, that
could be used, but not solely used, to prove his or her participation
in the burglary. It is a rule of evidence, rather than a rule
of law.
Professor Horder: Yes, that is
right.
Q125 Mr Buckland: The same goes
for the principles that we have been talking about. For example,
mere presence at a scene will never be enough for anybody to bring
home a case against a gang member or somebody on the periphery
of a particular scene. Isn't the point that we are quite rightly
debating and discussing some of the fringe issues that relate
to these matters and cause problems on the fringes, but if we
try to elevate them into a statutory code, we are in danger of
perhaps either missing things or proscribing things that really
are the province of evidence in each particular case?
Professor Horder: There is a risk
of that. We started, right at the beginning, by talking about
the substantive law and the problems with it, and I think those
problems are very real. They are not just evidentiary problems.
The question of whether you can convict someone in my burglary
example when a murder has been committed is a question of substantive
law, not just a question of evidence, because the question is,
what is the evidence there to prove? At the moment, it has to
prove this rather complicated set of conditions: that I foresaw
that serious bodily harm might be done and that there was no fundamental
difference between what I foresaw and what was done. Those are
rules of substantive law to which the evidence relates, so we
have to get those right before we can turn to the law of evidence.
As the discussion moved along, Mr Corbyn started to talk about
large gangs, and then we start to move into the territory of evidence.
You mentioned the question of presence at the
scene of the crime, and that is a classic example of where it
would be unhelpful to have a provision in legislation that said,
for example, presence is never enough, because, as you rightly
say, it depends on the evidence in a particular case. Suppose
I am a minor gang member and my job is to beat someone up until
they reveal that they have turned Queen's evidence or something
in relation to some criminal enterprise. I am slapping this person
about a bit, trying to get the evidence, and suddenly in walks
the boss through the door—the boss of bosses. The head of
the gang just walks through the door. Is my response to say to
the victim, "Well, we've been doing this for about an hour
and you're obviously not going to give up any information, so
I'll tell you what, let's shake hands and you can go off. Just
don't do it again"? I do not think that that will be my reaction
actually. The very presence of that individual will mean that
I will try even harder to get the confession or whatever out of
the person.
You may say that that is an unusual case, but
the point is that in some circumstances, presence could be enough
to constitute assistance and encouragement—in some circumstances.
The problem is—this comes back to Mr Corbyn's point—that
clearly in the bus cases and many other cases, it does not even
begin to be sufficient really and that is the difficulty. That
is why you need guidelines in relation to evidence, rather than
hard and fast rules.
Q126 Mr Buckland: That is why
the word "mere" presence is actually quite important,
because that deals with the particular circumstance you mentioned
about the particular importance of that individual.
Professor Horder: Yes.
Q127 Elizabeth Truss: Can I respond
to Mr Corbyn's point about involvement in gangs or riots? Is not
the whole point of joint enterprise more to encourage foresight
before getting involved in those kinds of activities? So it is
not just about being tarred with the same brush once a crime takes
place, it is trying to discourage people from supporting potential
enterprises that would lead to criminal activity.
Professor Horder: Well, that is
a complicated question. What you are effectively asking me is
whether the law of joint enterprise, and this little bit of it
in particular, exists in order to deter. It is dangerous to say,
"Yes, it does exist for that purpose" because it is
very difficult to prove whether it does have that effect. In my
view, the primary purpose of the law is to do justice and to make
sure that the right people are convicted for the right offence
on the right basis. Great injustice would occur if there was no
joint enterprise liability, but it is also the case that at present
some injustices may well be being done because of the width of
the rules.
Q128 Elizabeth Truss:
Earlier you seemed to be saying that you wanted to see more flexibility.
So, for example, under joint enterprise, some could be charged
with manslaughter rather than murder.
Professor Horder: Yes.
Q129 Elizabeth Truss: Could you
see that happening in a non-legislative way? Would it be possible
for guidance to be issued such that in this type of case someone
who participated, but was not the murderer, could be charged with
manslaughter? How would that work and how could that be done?
Professor Horder: It is very tempting
to think that one could go down that line. It may be that the
courts could develop such a doctrine. They got quite close in
the late 1960s to developing exactly that doctrine, but standing
in the way of it is the decision of the House of Lords in the
cases of Powell and Daniels, and English, which says that if the
intentional killing was not what you anticipated, then you may
not be convicted of murder or of manslaughter. It is very difficult
for the courts to row back from that. The House of Lords—the
Supreme Court now—has, of course, sometimes overturned its
own decisions. That has happened, but my best guess would be that
it would not do that and this would require legislative intervention.
That was supported not only by the Law Commission but by the Ministry
of Justice and, indeed, by Lord Phillips when he was giving a
talk on this area.
Q130Elizabeth Truss:
So it could not emanate from the Law Commission? It would have
to emanate from the courts?
Professor Horder: It would, yes.
One could leave it and hope for the best but, as I am sure you
know, courts do not legislate for solutions. They just decide
individual cases and so you cannot actually say that the rule
that emerged would be the right one. The only thing that I would
say, because I can see you are searching for a bit of support
on this, is that I have noticed a number of cases, not least the
very prominent one in which the Chelsea banker was stabbed to
death in his own hallway, where the jury has brought in a verdict
of manslaughter in spite of these rules, if you like. I am not
saying there was not a basis for manslaughter in that case; there
must have been because they found it. But there have been a number
of cases in which manslaughter verdicts have been reached. So,
in fact, juries are reaching for that solution because that seems
like the common-sense solution, which it is, even though in strict
law and logic they are not meant to go down that road.
Q131 Elizabeth
Truss: What about guidance for prosecutors? Could that help?
Professor Horder: I would be reluctant
to do that because it would involve guidance that is effectively
telling prosecutors to charge manslaughter where the House of
Lords has in fact indicated that neither murder nor manslaughter
is an appropriate verdict. You are going down the wrong road,
but just a little less far than if you charged murder, if I can
put it that way.
Q132 Elizabeth Truss: Finally,
are you critical about the way the courts have behaved? You talked
about all the trimming and adding little bits on they have been
doing. Do you think that has been a problem and how can that be
addressed? Are you saying legislation is the only solution to
this?
Professor Horder: Legislation
is the only solution because of the knots the law has tied itself
in, if you think it is a big enough problem in point of justice
to be worth the agony of trying to get it right. Sometimes you
can make a bad situation worse by legislating. I know that will
come as no surprise to anyone here, however it is true. Although
the situation is bad, there is the risk it could get worse, particularly
if reform of the law of murder and manslaughter—the joint
enterprise principles—are not properly integrated with other
areas of the law. Going back again to my example of the burglary
and murder, it would be a funny situation if the judge had to
give one set of directions under statute as to what constitutes
complicity in murder, but a second set of directions drawn from
the common law as to what counts as complicity in burglary. That
would be pretty baffling.
Mr Llwyd: An obvious facet of the common
law system is that cases often eventually make law. We all live
by that rule, don't we?
Q133 Chair: One of our witnesses
thought that a number of cases should have been dealt by joint
enterprise, but that prosecuting authorities and the police tend
to use joint enterprise in what they call high-profile cases.
You have looked at a lot of cases. Have you come across any evidence
or indication that that might be so?
Professor Horder: Across the board,
I do not believe that is so, because joint enterprise, as I mentioned
earlier, is a perfectly ordinary normal doctrine that is going
on day in, day out with thieves, burglars, robbers, sexual offenders,
and in relation, for example, to sex trafficking. It is central
to the commission of that last offence. It is going along perfectly
normally and not causing any trouble and never getting into the
appeal courts in all those other cases. It is just the murder
ones that keep coming back and forth.
The trouble is what makes a case high profile.
I don't know. Is it that the media pick it up? That is a hard
thing to answer.
Chair: Thank you, Professor Horder. We
have all benefited from the clear and careful way you have answered
our questions.
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