Examination of Witnesses (Questions 134-156)
Chair:
Minister, welcome. You are becoming a regular before us, this
time on a different subject. You have brought with you Mr Hopley,
deputy director for criminal law and legal policy, and Mr des
Tombe, one of your legal advisers. We welcome all three of you.
Q134 Jeremy Corbyn: Minister,
thank you for coming again to the Committee. You will be aware
of the concerns of victims' groups and organisations about miscarriages
of justice in relation to the joint enterprise doctrine. Our concern
is that it does not seem that the Ministry of Justice collects
specific statistics on the use of joint enterprise in obtaining
convictions. Could you let us know if that is going to change?
Mr Blunt: It is unlikely to change
in the near future. The feasibility test of whether we are able
to collect that data on a system would have to change in order
to acquire it. The amount of resources we would have to devote
to it needs to be linked to the prospect of us making a significant
change in that area.
Q135 Jeremy Corbyn: But have you
been following the issue of joint enterprise and the concerns?
The problem we have is with statistics. The number of convictions
related to joint enterprise appears to be considerable, so I am
frankly surprised that the Ministry has not studied that a bit
more.
Mr Blunt: You would need to do
a manual trawl of individual cases to identify where joint enterprise
had been present in that case. The court and CPS systems do not
individually record joint enterprise, and it would be impossible
in those circumstances to do an electronic trawl of cases. You
would have to go back to the cases individually and manually to
do that. If there were an immediate prospect of an issue to address—I
understand the scale of how often joint enterprise is used—we
would, obviously, have to consider whether to devote that scale
of resources to it, but I would be misleading you if I suggested
that that were an immediate prospect.
Q136 Jeremy Corbyn: Do you think
that the DPP follows this? Would they be in a position to give
you information that would be helpful?
Mr Blunt: The CPS systems have
the same issues as the Ministry of Justice court systems. The
convictions are not recorded as joint enterprise convictions.
Q137 Chair: They could if you
asked them, couldn't they?
Mr Blunt:
Well, we would then have to change the systems in order to do
so.
Q138 Mr Llwyd: There is an immediate
concern. The Law Commission has twice reported on the matter since
2007. I would not say that it is a burning issue, but it is an
immediate issue that needs some form of research.
Mr Blunt:
We said to the Law Commission that there is no prospect of addressing
it in the course of this Parliament. Listening to the evidence
that you have just taken on changes in the area, if we were going
to proceed through a Law Commission review process, we wouldn't
simply look at the issue in isolation. We would obviously have
to look at the law of murder. Again, with that review, we have
made it clear that there is no prospect of doing that in the course
of this Parliament.
Q139 Jeremy Corbyn: Would you
be prepared either to collect some information from now-ish onwards
or to undertake a commissioner's study on a sample of cases in
order to get some kind of picture?
Mr Blunt:
I am completely open-minded about acquiring evidence. If it is
your Committee's recommendation, having examined this, we will
obviously look at that recommendation, but it comes back to the
issue of availability of resources. If it is possible to get a
better fix on this without it costing an arm and a leg in terms
of either people or money, it is an area where we could do with
better data. I notice that your interrogation of some of the witnesses
last week made it clear that some of the evidence being presented
was at a pretty early stage of development, if I can put it like
that.
Q140 Nick de Bois: Minister, it
has been suggested that the joint enterprise doctrine has a role
in deterring young people from becoming involved in criminal activity.
We have heard about gangs. Do you think it is clearly understood
by young people what the doctrine is, and do you believe that
it is a deterrent?
Mr Blunt:
This is difficult. How many young people actually understand the
details of sentencing? The answer is probably "Not very many",
but there is a central tenet that can be communicated to people,
and it goes with the wider agenda of responsibility that the Government
is trying to inculcate: you shouldn't be able to walk by on the
other side and do nothing about it. If, even worse than that,
you are party in some sense to what is going on, what is meant
by joint enterprise is that you want to look out, because you
are going to be responsible.
I was reading some evidence from one of your
witnesses from Sheffield, who made it clear that in their part
of the community, kids understood the notion of joint enterprise.
We heard in Mr Corbyn's questioning just now a sense that this
could cut both ways. It means you are responsible, but, if the
doctrine is then used by the CPS in bringing prosecutions, does
that reinforce gang identity, or does it help society make it
clear to people that they are responsible for the actions of their
associates when they know perfectly well what is going to happen?
Q141 Nick de Bois: But what is
your opinion of those two choices?
Mr Blunt: My opinion is that I
want a responsible society, and it should be a society in which—in
a sense, this has nothing to do with crime—you do not walk
by on the other side. Certainly, if you are associated with an
offence taking place and you could foresee that offence taking
place, you have to look out because you are responsible.
Q142 Nick de Bois: Looking at
it from the other end of the telescope, do you think it might
now effectively be a deterrent for people coming forward—that
they think they might get caught up in it unfairly: in other words,
that they might come forward to the police, get unfairly caught
up in it and, as a result, be charged? Is there evidence for that,
and if not can you collect such evidence?
Mr Blunt: In preparation for this
and in going into the detail of it, I have not come across any
evidence that suggests that people would be. Frankly, it would
be slightly strange if evidence was being brought forward to prosecutors
and police by members of the community on a voluntary basis, where
they were helping the police and the prosecution with their inquiries
and processes and they ended up finding themselves on the wrong
end of a charge leading to very serious consequences, unless there
were very strong reasons for doing so.
In effect, those people would be turning Queen's
evidence and, in terms of public policy, you would want to reward
that in some degree. That obviously has to be set alongside whatever
their criminal liability is, and there the police and the CPS
have to come to an appropriate balance of judgment.
Q143 Nick de Bois: Just one final
question, if I may: given the Government's announcement today,
launching their thoughts on the gangs strategy, will you and your
Department be highlighting the issues we have discussed around
this specific issue, for example, and will you be inputting that
into the gangs strategy?
Mr Blunt: I have noticed that
the debate around joint enterprise seems quite finely balanced.
You have a group of victims representatives saying that it does
not go far enough and that it needs to be extended, and you have
prisoners who have been on the receiving end of these judgments
giving their accounts to the people who gave evidence to you last
week. So there is a sense in which we are in roughly the right
place in terms of public policy. Joint enterprise exists, and
you have a responsibility in that you want to look at what is
actually going on: if you belong to a gang, and you can foresee
what that gang is going to do, you want to be conscious that you
potentially have a criminal liability.
Q144 Nick de Bois: May I just
press you on that? You have summed up the situation as it is,
given that the gangs strategy points to more work that schools
can do and so forth, but my question was specific: will you be
inputting into that your view that, for example, people need to
be made aware of their responsibilities, or are you satisfied
that the position is fine as it is?
Mr Blunt: I think that is not
necessarily a matter for the Ministry of Justice; it is more a
matter for the police. There is a collective Government view that
inculcating a sense of responsibility and making children aware
of their responsibilities under the doctrine of joint enterprise—however
it is then presented to 13, 14 and 15-year-olds in school, for
example, on programmes that already exist—is an appropriate
thing to do. You can always educate people better in almost any
area of life, and this is no exception. It may well be an appropriate
part of the gangs strategy to make that clear.
I know from what I saw on a visit to the United
States that, in a sense, their gangs are rather more developed,
certainly in terms of their firepower, the hold they have over
communities and their identity, compared with what exists here.
I was briefed in Austin, Texas, by the chief of police about the
strategy they take. They go out to children in their school system—11,
12, 13-year-olds—to begin to deal with all the issues that
potentially arise out of the consequences of gang membership falling
on their communities, and to try to catch them before they get
into gangs.
Within a process like that, I find it extremely
commendable if that is part of the gangs strategy that falls out.
It is obviously largely down to the police in different local
areas what strategy they take, and it is entirely appropriate.
The doctrine on joint enterprise and the fact that you are responsible
the moment you decide to get engaged in a gang is a good way of
bringing the message home.
Q145 Jeremy Corbyn: Were you growing
up in an urban community—say, London or Birmingham—and
surrounded by postcode gangs who dominate their geographical area,
and have very little social activities or alternatives, it is
very hard for a young boy, in particular, not to be sucked into
some kind of gang if only for their own identity and protection.
Unless we offer some kind of societal alternatives to that, young
people will be sucked into this and end up in a vortex and criminalisation.
Mr Blunt: I have considerable
sympathy with your view, which is why the whole of the Government's
policy needs to be addressed in a complete social justice agenda
that actually joins up interventions that will happen early to
support mothers of very young children in areas where they are
at risk of ending up in gangs if something were not done to divert
them from that course. That has to sit alongside the fact that
you have to exercise responsibility for the choices that you make.
In social terms, we understand how people get
led into crime and why there are so many people in our prisons
who have challenges around mental health, addiction and the circumstances
in which they grew up. It becomes terribly predictable that many
such people have ended up in our prisons, but the fact is that
they were criminally responsible for the sentence they received,
and at the wrong end of that process is a victim whom, the courts
will have decided, they chose to create. People are responsible
for their actions even if they are in difficult circumstances,
but this has got to be part of a wider social justice agenda—to
then try to address those difficult circumstances and to make
it easier for those people not to exercise the wrong choice.
I accept that, but that is absolutely part of the Government's
wider social justice strategy.
Q146 Mr Llwyd: Can I take you
back to something you said earlier? I agree wholeheartedly that
if a member of a gang goes out of an evening and something occurs,
and that person has foresight, clearly that is an easy one. Part
of our concern, however, is for the peripheral young person who
is somewhere in the grey area, who does not have the foresight
or any evidence to suggest that anything untoward will occur,
but is actually at the scene. That is the sort of area that concerns
us more than anything else. As much as we might not like the
idea of gangs, mere membership of a gang does not make for liability.
Joint enterprise, as you put it, is very easy in terms of foresight—we
know that. Our concern is for the others on the periphery. That
is where we need to be looking.
Mr Blunt: The public policy issue
for me and for the Justice Secretary is whether we then attempt
to go down the path of codification—we invite the Law Commission
to look at the product of its four studies it has undertaken and
then go through a very substantial programme of seeing whether
we can codify and clarify the law in area and deliver the clarity
that you are seeking. The previous witness made it clear that
it was perfectly possible that codification would make things
worse rather than better, and the public policy advantage of moving
in very short order to that kind of review and potential codification
escapes me. I actually think that the position we are in, with
the doctrine drawn from the common law, leaves us in the right
place for the judgments that are made when people are on the periphery.
A jury has to be convinced of the merits of someone being convicted
under joint enterprise in such circumstances. I think that, with
the restrictions and the directions that should come from a judge
to a jury in those circumstances, we are in a pretty reasonable
place for justice to be done and for us to get those decisions
at the periphery as right as we reasonably can.
Q147 Mr Llwyd: Two points arise
from that. I note, Minister, that you were not here for the whole
first evidence session, but Professor Horder said that it is a
bit disconcerting that the Appeal Court is adding bits on as if
it were extending a house without planning permission—extension
on the extension, and so on—and it is getting a bit unwieldy.
That is the point he made. He did not actually say that statute
would be out of the question—he was a member of the Law
Commission anyway.
Secondly, if, as you say, it is all okay and
we are fine, why are there so many cases before the Court of Appeal?
As we speak at this very moment, there is a pending case before
the Supreme Court. There have been several appeals over the past
12 months, and in many of those appeals people have been acquitted
on the very fact of the lack of clarity in this area of law.
Mr Blunt: I did not hear the beginning
of the professor's evidence.
Chair: Which was paraphrased by Mr Llwyd.
Mr Llwyd: I hope fairly.
Mr Blunt: I obviously heard the
latter end of it, and, from what I could hear, he was painting
a very reasonable, balanced picture of the situation—one
that I certainly recognise from the briefing and the research
that I have undertaken. I think he was saying that there is a
significant number of appeals where people are found guilty of
murder, which is a regular source of appeal, as one would expect
that, not least because of the mandatory sentence. Given the range
of offences for which this is used, though, in other, less serious,
offences there is not quite such a range of appeals as your question
might imply.
Q148 Chair: If I may add another
point, and I am paraphrasing too, some of the argument on joint
enterprise is a proxy for an argument about jurisprudence on murder
and manslaughter. That probably needs to be sorted out, but it
cannot be sorted out by altering the position on joint enterprise.
Mr Blunt: Yes, I agree with you.
Q149 Mr Llwyd: What do you think
are the potential benefits if the recommendations of the Law Commission
were to be incorporated into statute?
Mr Blunt: It goes back to the
Chairman's point. You would have to look at a wider codification,
so you would have to be prepared to look at a re-examination of
the law of homicide, perhaps looking more carefully at the Law
Commission's recommendations on a three-tier law of homicide.
Again, that is a very substantial amount of work and we do not
want to start down that path now.
Q150 Mr Llwyd: I suggest to you,
with regard to what you describe as lesser offences, that joint
enterprise is very often used in burglaries and can be used in
drug smuggling and many other things. Apart from burglary, obviously,
in several of those other kinds of crime there will be a paper
trail, so it will be easier to prove. The area of contention appears
to be where you have a group of young people out on the streets
and something occurs. Those are mainly the appeals that are going
up to the Court of Appeal, and the one in the Supreme Court at
the moment. There would appear to be a perfectly adequate framework
for joint enterprise applying to many offences, but there may
be a difficulty with gangs of people, and so on. That is the way
I look at it.
Mr Blunt: I am happy to look at
the conclusions of the Committee.
Mr Llwyd: We have not reached any conclusions
yet.
Mr Blunt: What I am saying is
that I will look at the conclusions the Committee comes to on
the back of your taking the time to examine this area.
Q151 Mr Buckland: There is one
obvious solution to dealing with cases where there is clear evidence
of agreement and gang organisation and that is to use the law
of conspiracy, where you can prove and use as evidence acts and
declarations made by parties to that conspiracy, even though particular
people who are party to it are not present. Conspiracy can be
used to deal with particular cases where there is strong evidence
of gang participation.
Mr Blunt: Since you are a lawyer,
Mr Buckland, I will allow my lawyer to answer that one.
Michael des Tombe: The simple
answer to that is yes. If the prosecutors wish to go down that
route, there is nothing stopping them.
Q152 Mr Buckland: Yes, we must
not forget that. Sometimes, there is almost a fear of charging
conspiracy. It is now rather an archaic sounding word to many
people, but all it means is agreement, does it not?
Michael des Tombe: Generally that
is right. I am not sure what the prosecutors' view on using the
law of conspiracy is, so I cannot answer that part of that question,
but the law of conspiracy still exists and can still be charged,
so there is nothing stopping prosecutors doing that if that is
what they want to do.
Mr Llwyd: We faced the same situation
20 years ago on conspiracy as the position we are in now. The
perception was that it was overused and used as a rather rough-edged
tool.
Yasmin Qureshi: As a former prosecutor,
our opinion about conspiracy used to be that it was generally
a last excuse and the last thing to use in a case where there
was perhaps not enough evidence for a substantive charge. I am
just talking off the record. [Interruption.]
Chair: Order. I was handing over the
questioning to Mrs Qureshi.
Q153 Yasmin Qureshi: We understand
that the Ministry of Justice has actually written to the Chairman
of the Law Commission to say that the chances of their recommendations
being implemented into legislation are virtually non-existent.
Mr Blunt: In this Parliament.
Q154 Yasmin Qureshi: Exactly.
We have the Legal Aid, Sentencing and Punishment of Offenders
Bill coming through. Was any thought given to perhaps encompassing
in that Bill some of the recommendations regarding joint enterprise
and so on? If not, was it because this area is just too complicated
and people do not understand it properly or fully; or was it that
there genuinely is not enough time?
Mr Blunt: There was a discussion
at various earlier stages of what would make up the legislation
that is now before the House. One of the steers that the Department
was seeking from Ministers was what we were going to do about
these Law Commission reports. The answer to that was in February's
letter to Lord Justice Munby. However, some time before then,
in framing the Green Paper "Breaking the Cycle", which
led into the sentencing elements of the reforms in the LASPO Bill,
it was decided that we had quite enough to do without embarking
on an exercise of the scale required here. We certainly would
not have been in a position to bring forward legislation now,
even if we had started on 15 May last year. It is not a priority
item, I think, in either of the manifestos of the coalition parties.
I may be corrected on that, but it certainly did not appear in
the coalition agreement.
Q155 Mr Llwyd: Did you take into
account the views of the Director of Public Prosecutions on the
Law Commission's proposals on joint enterprise?
Mr Blunt: I am reasonably certain
that they will have informed it, but Mr Hopley may say exactly
how.
Keir Hopley: I think the DPP's
view, as indeed he said when he gave evidence to you last week,
is that the law is working reasonably well. As the Minister said,
we looked at the issues and we looked carefully at the Law Commission
report, but, in the light of everything else that needed to be
done the Government concluded that this was not a priority for
legislation.
Mr Llwyd: To be utterly fair, the DPP
said that there was some lack of clarity in some of the things
being proposed by the Law Commission.
Q156 Yasmin Qureshi: Do you think
some of these issues regarding clarity or consistency in the use
of joint enterprise could be satisfied through the introduction
of better guidance for the CPS and police?
Mr Blunt: That is more a matter
for the CPS and the police than for me. It would be better if
your questions were addressed there.
To reflect on the point just made by Mr Llwyd,
if you compare the Law Commission's report on joint enterprise
with its review on homicide, its recommendations on homicide are
pretty clear. There is not the same clarity in its report on these
issues, which leads to the conclusion that if we had embarked
on the process, it is possible that we would not have ended up
any further forward than we are now.
Chair: Thank you very much, Minister
and your colleagues. We are grateful to you for coming today.
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