Evidence heard in Public

Questions 105 - 156



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Oral Evidence

Taken before the Justice Committee

on Tuesday 1 November 2011

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Jeremy Corbyn

Nick de Bois

Chris Evans

Mr Elfyn Llwyd

Yasmin Qureshi

Elizabeth Truss

Karl Turner

Examination of Witness

Witness: Professor Jeremy Horder, Professor of Criminal Law, King’s College, London, gave evidence..

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.

Examination of Witnesses

Witnesses: Mr Crispin Blunt, Parliamentary Under-Secretary of State for Justice, Keir Hopley, Deputy Director in charge of criminal law and legal policy, Ministry of Justice, and Michael des Tombe, Senior Legal Adviser, Ministry of Justice, gave evidence.

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.

Prepared 3rd November 2011