Justice Committee
Oral evidence: Joint Enterprise: follow-up, HC 310
Wednesday 22 October 2014
Ordered by the House of Commons to be published on 22 October 2014.
Members present: Sir Alan Beith (Chair); Mr Christopher Chope; Jeremy Corbyn; Nick de Bois; Andy McDonald; and John McDonnell
Questions 65-141
Witness: Alison Saunders, Director of Public Prosecutions, Crown Prosecution Service, gave evidence.
Q65 Chair: Welcome, Ms Saunders. This is the first time that you have been before this Committee.
Alison Saunders: It is.
Q66 Chair: I am glad to welcome you. We look forward to your help on the issue of joint enterprise. It was this Committee’s recommendation which led to the publication of guidance to prosecutors on joint enterprise charging decisions by your predecessor. We will come to the impact of the guidance later. Could you explain your understanding of its purpose? Is it meant simply to summarise law and practice, or was it intended to change and improve charging decisions?
Alison Saunders: Probably a bit of both, because the guidance explains for prosecutors, and goes into some detail, as you will see from the guidance, what the law is on the doctrine of joint enterprise. It is there in one place; it is easily accessible and it has some of the case references. It goes through the different scenarios, but of course the aim of the guidance is to help prosecutors in their role, and to be able to help and guide them around the thought processes they should have when making decisions which are impacted by joint enterprise, and, therefore, improve the way in which they operate. That is not to say that we did not think that they were operating it properly to begin with, but we think that the guidance helps them in relation to their decision making, and it should improve consistency as well, of course.
Q67 Chair: The Committee recommended that your guidance should deal specifically with charging practice in murder cases, which have a special significance because of the mandatory sentence. The guidance gives examples of how charges might be selected following a group fatal assault involving a weapon, and also includes consideration of charging cases where murder or manslaughter occurs in group assaults without a weapon. Can you explain the approach that you adopted in this part of the guidance?
Alison Saunders: I think that the approach we have adopted is fairly clear from the guidance, which is, to some extent, the same no matter what the offence is. It is around making sure that prosecutors are looking first at the evidence and considering whether there is a sufficient and realistic prospect of evidence against each individual defendant on each count that they might face. The sorts of things that we would look at, if a group of people are involved where a death has occurred, would be whether you can see who the principal is, what was the intent and what is the evidence that supports their participation in the group. It emphasises the fact that if you are on the periphery, and you just happen to be there, that is not enough. There has to be evidence of either some act or some encouragement and participation in the offending. It guides prosecutors through the thought processes that they should go into when looking at group alleged offending where a death has occurred, and it also talks them through the type of charging decisions you should make, once you have decided that there is sufficient evidence, and what sort of offences you might look at. If, for example, we are satisfied that the evidence shows that you are a secondary participant rather than the principal, it points out the type of offences you might look at; you should be looking at offences other than just murder or manslaughter in some cases. It also puts in the public interest test, which is still the same as in the code, but it emphasises a couple of added things such as, if it is one where there is a mandatory sentence, you have to be really clear; if somebody is right on the periphery, you cannot charge a lesser offence, which is what we should be looking at, so then you look at the public interest, and whether it is in the public interest to prosecute or not, bearing in mind the alleged offending and the type of sentence that might be imposed.
Q68 Chair: What do you say to those who argue that referring to things like Facebook contacts or knowledge that a person habitually carries a weapon does not take realistic account of life in some of the communities where joint enterprise is used rather widely?
Alison Saunders: It is very difficult to answer that in a generic way because it rather depends on the individual circumstances of each offence. We have certainly prosecuted cases where Facebook and foresight that somebody was carrying a knife may be part of that. A very good example is the Lawrence case. It was a classic case; you could not tell who administered the fatal blows, who had been the stabber, but the evidence surrounding it—of course, it was before Facebook—was that they were all part of a group of people who would go out together; they knew they would commit racist acts, they knew they would take knives and that violence was inflicted, so the foresight of the group who were there was sufficient.
Q69 Andy McDonald: You were cautious in identifying any effects of the guidance on prosecutorial practice. Others who submitted evidence to us have been more forthright, arguing that the impact has been minimal or non-existent. What impact would you expect to have seen?
Alison Saunders: We did not expect that there would be a dramatic difference in the charging rate following the guidance. As my predecessor indicated, we were satisfied that prosecutors were applying the joint enterprise doctrine and the code for crown prosecutors properly. We have seen some impact. It is difficult to know from the statistics exactly what had that impact, because it looks as though case load has fallen in relation to homicide cases, which of course is good. That in itself may have had an impact. The numbers are so small that it is difficult to attribute impact from anything without a bit more detailed study of all the individual cases looking at what happens. What we do know, because we surveyed our chief crown prosecutors and asked them, and we had a lot of commentary back from them, is that they found the guidance helpful. What they are now seeing is that when they do case management panels, going through individual cases, talking about charging decisions, the reviewing lawyers all refer back to the guidance and have gone through the processes set out in the guidance.
Q70 Andy McDonald: Is there any internal process at all within the CPS to monitor how this is playing out, other than that sort of anecdotal comment to you?
Alison Saunders: Not in relation to the guidance. We have very good, clear and rigorous monitoring processes in relation to individual cases, so if we are looking at an individual case that relates to where joint enterprise might be involved and a death, prosecutors will go through that with their managers, possibly with the chief crown prosecutors, and possibly even with me in some cases. We will go through the process of saying, “What is the evidence? Is this rightly charged? Are we correct to take it to court?”
Q71 Andy McDonald: If you are introducing guidance, would it not follow that there would have to be some mechanism to assess whether that guidance has been effective, over and above what we have just covered?
Alison Saunders: It is difficult to see with this guidance, without that detailed research project, how we would do that.
Q72 Andy McDonald: The Government have argued that it would be sensible to defer any decisions on reform of the law on joint enterprise until the impact of your guidelines has been assessed, as we discussed. When do you think it will be possible to make an effective assessment of that impact? How is it going to be assessed and who is going to do it?
Alison Saunders: That is quite a difficult question to answer. We agreed that we would collect data on this for two years, which we have done. I am not sure that the data, because of the numbers, shows us or that it can help us with any real confidence around any statistical analysis because of the numbers. It would need some sort of research project to look more into the detail of individual cases and how it is applied. What we look at, of course, is whether our decision making is correct in individual cases. We will carry on doing that in relation to individual cases, and we pay particular attention if it is a case involving a death and if there are more than one or two defendants.
Q73 Andy McDonald: How has the CPS followed the provisions of the guidance about taking account of the views of victims as part of the process of applying the pubic interest stage of the full code test in joint enterprise cases?
Alison Saunders: We do that in a number of ways, primarily through information given to us by the police or by the victim impact statement, which we should be receiving in most cases. In cases involving a death, we meet with victims’ families, normally after charge but sometimes before charge as well. The victim impact statement will help us, again, to understand the impact of the crime on the victim and their views.
Q74 Andy McDonald: You responded to concerns expressed during the consultation on the draft guidance that insufficient account was taken of the age of young people and of disability as factors to be taken into account when reaching charging decisions. Paragraph 34 refers to the “particular care” which prosecutors should take at the evidential stage when dealing with “youths and mentally disordered suspects.” But JENGbA says that there has been no discernible change in charging practice in relation to children and young people. Have you a comment on that?
Alison Saunders: We cannot tell from the data that we have, because we have not separated it out. It also refers back to our policies on youths and individuals with mental disabilities. Prosecutors are used to dealing with that because they deal with it in relation to other cases. We have specialist youth prosecutors who should be looking at cases that involve youths who are being considered for charging, and they take into account things like the maturity and age of the defendant and the type of offending. My view is that prosecutors do take that into account, and are well versed in taking that into account.
Q75 Andy McDonald: Paragraph 64 of the guidance says that, where a death or serious assault has occurred, prosecutors should “seek to determine the exact role played by each suspect and select charges that differentiate the roles.” Then in paragraph 65, the guidance says that prosecutors should be “mindful, in selecting charges, not to overly complicate the presentation of a case.” Is there a contradiction? How would you respond to claims that it remains the tendency of prosecutors to charge all participants with the most serious possible offence in joint enterprise cases?
Alison Saunders: I do not think that they do; again, the guidance helps prosecutors with that because it makes it clear that they shouldn’t be, and that they should be taking into account things such as the individual culpability and what you can prove against each individual defendant. It also talks about the public interest a little bit later, about the charging, which I have already referred to, where you look at whether individuals are on the periphery. Therefore, what is the public interest in charging? The code makes it very clear that generically—it applies to joint enterprise cases as much as to anything else—we never just charge the most serious offence. It is about looking at what is the most appropriate offence, making sure that the courts have sufficient sentencing powers, that they can take into account the gravity of the offending, but also it is that public interest—if somebody is on the periphery you should not be charging the most serious offence where there is a mandatory sentence. The guidance makes this clear. If they are on the periphery, you ought to look to see if there is a less serious charge. If there is not, should we be proceeding at all with that case? I think that that is what prosecutors apply.
Q76 Andy McDonald: Have you seen the Jimmy McGovern drama “Common” and the documentary that followed it?
Alison Saunders: I didn’t see it, no. Unfortunately, I don’t get much time to watch television these days.
Andy McDonald: It is worth making some time to watch it. It is very good.
Chair: Somebody might send you a copy of it.
Alison Saunders: I am sure I can get it on the internet.
Jeremy Corbyn: I am sure it could be sent to you.
Q77 Nick de Bois: I would like to explore some factual data on the use of joint enterprise. In some cases, it seems to be almost too early days to have sufficient data, but you have produced data for us on homicide cases which involved two or more defendants. That was in 2012 and 2013. You have also, as I understand it, produced data on cases involving four or more defendants in response to freedom of information requests made of you. Can you give me your opinion on which provides the best proxy for joint enterprise?
Alison Saunders: It is difficult to say whether it is two or four. Our data is slightly difficult. If you are referring to the request from the Bureau of Investigative Journalism—
Nick de Bois: Yes, that is correct.
Alison Saunders: The difference between the two is that we have separated out some offences in relation to our guidance, so we have taken out some of the cases—things like death by driving. We have concentrated on murder and homicide cases, which I think give a slightly more accurate picture of some of the issues that have concerned the Committee in the past. I think you are right that it is, possibly, too early—the figures are very low—to give a very accurate picture of what might or might not be happening. They are interesting because they show that case load has fallen, which may also have an impact on some of the figures. We think that the number of defendants has fallen. What they seem to show is that we are charging more defendants with a lesser offence. It is not entirely clear from the statistics whether that is in addition to the more serious offence or not.
Q78 Nick de Bois: This is when you are charging more than one offence, basically.
Alison Saunders: Possibly. We cannot tell from the figures. Having looked at some of the cases that have been referred to me, and again they are not many, my own sense is that we are looking at more lesser offences, not just as alternatives but in their own right.
Q79 Nick de Bois: Does that suggest that you will begin to record all charges which you bring specifically under joint enterprise as opposed to other forms of secondary liability?
Alison Saunders: This was a bespoke piece of work that was done following my predecessor’s appearance here. We do not record, as such, cases of joint enterprise; we do not record them as that. The only data that we have is in relation to specific offence types. We know how many cases of theft, for example, we prosecute and we know how many cases of murder we prosecute. What we do not record is how many defendants there are in each of those cases.
Q80 Nick de Bois: Should we, though, given the propensity? I notice, for example, that the Cambridge Institute of Criminology calls for a compilation of much more comprehensive statistics on joint enterprise. What are the barriers to doing it, because it is there and you would have thought that we would be able to do it? I would like to try to understand what the obstacles are to routine and continuous compilation of the most comprehensive data. We seem to do it for most things. Could it be done by you, or could HMCTS do it, so that we get a very accurate, or more comprehensive, picture of the number of prosecutions, the number of convictions and then, obviously, the appeals in joint enterprise, as well as breaking them down by age, ethnicity and so forth?
Alison Saunders: The Department that is responsible for crime statistics is the Ministry of Justice. I don’t know their systems so I am not sure how easy it would be for them to compile those sorts of statistics. Our systems do not catch it that way.
Q81 Nick de Bois: Would you see value in it?
Alison Saunders: If there were concerns about particular issues, there is obviously value either in some sort of research project or in having some sort of regular data that can satisfy questions that are being asked. You have to weigh that against how easy or not it is to compile those types of figures, and I do not know.
Q82 Nick de Bois: I have a particular interest in this, because a constituent’s case was brought to my attention. I sometimes feel that, although in some senses it can make us less objective as an MP when looking at something, the struggle to find data is slightly frustrating. It would help if your office supported the case for it. That is the point I am making.
Turning to the proportion of appeals that were involved with joint enterprise cases, they doubled between 2008 and 2013. In 2013, I understand that 22% of all Court of Appeal rulings were in joint enterprise cases. Does that concern you?
Alison Saunders: What would concern me is if the appeals were being allowed. From the data it is difficult to know; it is quite a broad-brush approach to say that they involve more than one or two people and, therefore, it must be joint enterprise, because that is quite a big assumption for a start. These stats are from the Bureau, aren’t they?
Nick de Bois: Yes.
Alison Saunders: Again, their commentary makes me more reassured, because the appeals are not being allowed, or very few of them are. They are going before the Court of Appeal, who are confirming the decision and the convictions.
Q83 Nick de Bois: I have a note here—please bear with me; I am jumping around—that the Criminal Cases Review Commission made a submission on their experiences when they were looking at the applications for review of conviction or sentence in these cases. They say that only one conviction has been quashed since 2004 out of seven referrals, a much lower rate than for all convictions. The point they go on to make is that it may be particularly difficult in joint enterprise cases for applicants to furnish fresh evidence on mens rea. Do you have any comment on that observation?
Alison Saunders: I would not disagree with what they are saying. They have looked at the cases. I have not. I can understand why it may be difficult, and it is concerning if that is what they are finding.
Q84 Nick de Bois: It is that and the percentage. It just points to me that, maybe, there is something, and we need to dig a little deeper to make sure that we are not having what I would consider potential miscarriages of justice.
Alison Saunders: We would be very concerned about that, because certainly that is not what I would want either. It is very different, in the cases that are referred to the CCRC, from those that actually get through to appeal before the Court of Appeal, because they have had permission granted to go before them. It has either gone through a single judge or a full court, and the court has then considered it and dismissed the appeal. It is at a very different stage, and there will have been evidence put forward to get to that stage, so it is a slightly different test from the CCRC ones. I am not sure that you can use what the CCRC is saying, which is obviously right, in relation to the Court of Appeal cases. It is something that we need to have a look at, possibly.
Q85 Nick de Bois: I would like to ask a non-lawyer question, because I am not a lawyer, so forgive my ignorance on this.
Alison Saunders: Those are always the worst ones.
Q86 Nick de Bois: I will conclude after this. If, maybe in a year’s time or whenever, we conclude that all is not well with the application of joint enterprise, what is that going to mean for people who have been convicted under it? How are we and our institutions going to deal with that? If we turn round and say, “Do you know what? We are going to change it for the future,” there are going to be a lot of people left behind. Does that open up the door for new appeals, for example?
Alison Saunders: They would have to show in each individual case that something had gone wrong, that they did have grounds to appeal. We are satisfied—I am satisfied—that in the cases where we use the joint enterprise doctrine, we do so properly. If someone says that doctrine is wrong, it is normally not retrospective. Each individual would have to say, “I can show in my case that there was something wrong. There is evidence which shows I wasn’t guilty.” We change the law in relation to offending at various times, but it is not retrospective; you would not go back and automatically open the doors and say, “Because you were convicted under the old law, it was wrong and, therefore, we are releasing you.”
Q87 Chair: In a Cambridge Institute of Criminology study, 37% of those convicted of joint enterprise were black British, which is three times the proportion in the prison population as a whole. Does that puzzle you or lead you to think that there is something to look at?
Alison Saunders: It is concerning. Wherever you get that disproportionality, it is concerning and ought to be looked at. What I do know is that in individual cases race plays no part in prosecutors’ decision making. First, we may not know what the race is when we are looking at the papers. If we do know, it plays no part and the code is very clear on that. We looked at prosecutors’ decision making in the past to see if there was any bias in it, and it was found that there was not. Our training and the way in which we apply the code—we are very hot on this—is that there should not be, and there cannot be, any place for any form of racial or any other bias in our decision making.
Q88 Chair: May it reflect the communities in which the police and the CPS choose to use joint enterprise?
Alison Saunders: No. We do not choose to use it in particular communities.
Q89 Chair: I realise that the police have made the original decision to put to you the joint enterprise charge.
Alison Saunders: If cases are brought to us, we look at the evidence in the same way as we do in any other case. Whether it is about the type of offending in particular communities, I do not know, or about where the police choose to go, again, I do not know. I can only talk about what we do. Certainly it plays absolutely no part in a prosecutor’s decision making. All our training and our ethics go towards making sure that we do fair, independent and objective decision making.
Q90 John McDonnell: Let me turn to the Law Commission’s recommendations. Does the CPS have any view about whether joint enterprise should be enshrined in statute, and, if so, what effect would it have on your work?
Alison Saunders: Our view is that it is a matter for Parliament as to whether they want to change the legislation to put joint enterprise on a statutory footing. My predecessor was very clear about that, and I would not demur from his comments. If it is put into legislation, we will apply the law in the same way as we do in every other case.
Q91 John McDonnell: You have no view?
Alison Saunders: It is a matter for Parliament. That is my view.
Jeremy Corbyn: Chair, can I ask a supplementary on that?
Chair: Yes.
Q92 Jeremy Corbyn: It clearly is a matter for Parliament whether a law is passed or not, but in your office you have collected a lot of evidence, you have discussed the whole case and reviewed what has gone on, so surely you must have a view on whether there is a need for a fundamental change in the law or a new law.
Alison Saunders: I think I have made my view clear, which is that we think we are applying the doctrine of joint enterprise correctly. We do not think that we are applying it incorrectly, or that there are any miscarriages in the way we are operating the doctrine. If Parliament decides that it needs to be changed, that is a matter for Parliament. If they want to put it on the statute book, that is, again, a matter for Parliament, and we will, obviously, apply that.
Q93 Jeremy Corbyn: Can we just explore that for a moment? Are you saying that there is no fault in the current process as far as you are concerned, that there are no miscarriages of justice?
Alison Saunders: I am saying that we have applied the code properly in relation to cases where we use joint enterprise, that we consider it in accordance with our guidance and we are applying the guidance, which makes it very clear when we will use joint enterprise and for what types of charges.
Q94 Jeremy Corbyn: But you accept that there are serious concerns about the way that joint enterprise has been applied and that convictions that have been obtained under joint enterprise are very questionable, if we put it at its mildest.
Alison Saunders: I am not sure that I would agree that they are questionable. I entirely agree that concerns have been expressed, and that is why I am here today answering questions before you. Concerns have been expressed. You have concerns about it. I am saying that, in the cases that we prosecute, I am satisfied that we apply the tests in accordance with the code, and we apply the guidance.
Q95 John McDonnell: I understand the nature of your response. You are applying the law as it now stands but, because you are a practitioner, we as a Committee also look to you for some advice on how things could be improved. That is why we have asked you that question. If you want to remain completely neutral in this matter, that is fine, I accept it; but that is the reason for the question.
The general view was put that if there was to be a clarification of the law on joint enterprise it should await a grander review of homicide overall. I would welcome your views on that and whether there could be further clarification on joint enterprise in advance of a change, and also the Law Commission’s recommendations around first and secondary degree murder. I would welcome your views on that as a practitioner.
Alison Saunders: I am not here just as a practitioner. I am here as head of the CPS, which means I am a civil servant and a permanent secretary. I wear those hats, too, in my post.
Q96 John McDonnell: We still ask permanent secretaries, “How is it going?” and, “What do you think?” They have judgments and minds.
Alison Saunders: I know. I wanted to clarify the fact that I am not just a practitioner. In relation to the Law Commission approach, again, we have made our position very clear, and I do not demur from that: we should not just pick off the Law Commission’s proposals on joint enterprise, and I think there would be difficulties if we did that. It is for us, and I am very clear that it should be, part of a whole package, in relation to their proposals around murder and manslaughter as well. We sometimes see piecemeal amendments to the law and legislation, which cause more difficulties than they are trying to solve. I think that this would be one of those; if you just picked off a little bit, it would probably complicate and make the situation worse.
Q97 John McDonnell: What do you think about the first degree and second degree murder proposals?
Alison Saunders: Again, our evidence previously has been very clear around the impact of the Law Commission proposals. If you take them together, we would possibly end up prosecuting fewer people as principals and prosecute more people for inchoate offences and secondary offences. We may, possibly, end up not being able to prosecute some people whom we think we ought to be prosecuting now, but, again, it is difficult to tell without it being there in practice and starting to apply it to some case studies.
Q98 John McDonnell: Just going back to miscarriages, do you have any concerns about whether injustices arise out of joint enterprise, for the victim as much as for the person prosecuted?
Alison Saunders: My overriding concern is to make sure that prosecutors are doing their jobs properly, otherwise there will, potentially, be miscarriages of justice. I am always concerned about that, because I am acutely conscious of the role we play in making decisions which impact on people’s lives every day of the week, whether they be victims, victims’ families or defendants. Of course we must get it right. From the cases that I have seen, and from the cases that my chiefs have seen and the assurances that they have given, I am satisfied that we are applying the doctrine correctly, and that those cases are properly brought before the court.
Q99 John McDonnell: Does the existing doctrine make people more vulnerable to miscarriages?
Alison Saunders: I do not think so.
Q100 Chair: Is there not a particular difficulty in relation to murder, where there is a mandatory sentence and therefore reflecting the different degree of culpability is much more difficult, if not impossible? Do you think we ought to consider the application of these charges to murder cases rather differently from other cases?
Alison Saunders: To some extent, we agree with that and have done that in the guidance, because the guidance, again, makes it very clear to prosecutors that they ought to be looking at, where you have mandatory sentences, being very clear that that is the right charge to apply. Going back to the scenario where you may have somebody who is on the periphery but you cannot charge them with a lesser offence, should we be charging them at all? The guidance directs prosecutors to say that we probably shouldn’t in those cases because the public interest would not be in putting them at risk of a mandatory sentence. I think our guidance is clear about dealing with those concerns for people who are very much around the edges, who could be caught up by joint enterprise but where we think the public interest is in not doing that.
Q101 Chair: It is difficult to know, and the evidence is not available to us, whether prosecutors have followed that guidance in a significant number of cases, and said, “We could use joint enterprise but because it is a murder mandatory sentence”—I am thinking of that because it is a life sentence, in some respects, even if it is not life custody—“then, no, we won’t use joint enterprise for precisely that reason.” We have no data that answers that question, but we know that there have been a lot of convictions for murder under joint enterprise and, therefore, there are quite large numbers of people in prison for the same murders.
Alison Saunders: Yes. These statistics, obviously, do not show the cases where we have not prosecuted or where we made decisions in relation to potential defendants and have not proceeded with them, because they show the people who have been prosecuted and convicted, or not. It is difficult to get that information, but certainly from some of the cases I have seen—I can only talk about a very few; the number of cases that have come up to me—prosecutors have been making those decisions, and saying, “We will not prosecute that person.” We also think—again, it is anecdotal rather than anything else—that that may also have an impact on the jury’s mind because, of course, they are the ones who are going to consider all the evidence. They will see it tested in court and they will know, if it is a murder case, that there is a mandatory sentence. Therefore, there is a sense that that may also impact upon a jury’s decision making, possibly to the benefit of defendants, possibly not.
Q102 Chair: If, on reflection, you find that there is any useful written evidence that you might want to add for us on that particular point, we would be very interested. Do you recognise that there is a threat to the respect in which the whole justice system is held if you get significant numbers of people who say, and who are believed when they say, “I have been put away for murder. I know I did wrong but I am not a murderer. I neither took part in nor foresaw a murder”?
Alison Saunders: It is very different. Cases are presented before court with evidence that we have looked at and decided that there is a realistic prospect of conviction, and that the evidence is strong enough. They are not taken to court unless they satisfy that test. The evidence is then played out in court before a jury and a judge. The judge has the ability to stop cases if they feel that there is not sufficient evidence to put a case before the jury. So, again, there is a protection. It then goes to a jury, who have heard everything and considered the evidence. They will have the benefit of a judicial summing-up which will explain to them joint enterprise as well, and it will then be for the jury to do. I have seen some cases—an example is the Victoria Station murder where there were 20 defendants originally on the indictment—where you can see very considered decision making from the verdicts that the jury came back with. The judge gave them a route to verdicts which they followed. It is very difficult to say that cases that have gone through all of that process would automatically fall into the miscarriage position. I agree that if people are voicing concerns, and there are lots of people voicing concerns, we ought to look at them because there is some concern there.
It may help the Committee—I do not know—but we could produce some case studies. We have certainly had cases that have been referred through to the policy department—some of them we know of, anyway, through our case management panels—where we could produce some case studies, and some of them may show that defendants have not been charged and why they have not been charged. We would anonymise them. That may help and we are more than happy to try to do that if it would be of assistance to you.
Chair: That would be very helpful and it would give us a better understanding of your processes as well.
Q103 Nick de Bois: Since I opened up this line of questioning, I suppose my concern is not that they are not examined properly in court, but whether, with the guidelines, there are cases now that would not be prosecuted where mandatory sentencing is at stake that would have been prosecuted before. To me that is an injustice which is outside the courts, but it is still in the justice system. That is what I would be trying to look at and understand in any additional data that was provided.
Alison Saunders: We would not have any additional data on that. It would be case studies.
Q104 Nick de Bois: Yes, I’m sorry; I should have said case studies.
Alison Saunders: But we would not be able to retrieve any data.
Q105 Nick de Bois: I just wanted to draw a distinction between what is happening in the courts and what is happening in decision making at the CPS level.
Alison Saunders: I understand that.
Q106 Jeremy Corbyn: On Mr de Bois’s question, are you able to examine the decision-making process in advance of a prosecution? I think Mr de Bois’s point is a very important one: the access to justice is clearly what the decision is in the first place, so if a decision is taken to arrest and subsequently prosecute or not prosecute, that may have changed because of the guidelines. Are you able to study that?
Alison Saunders: We are not. In each individual case, particularly in complex and sensitive cases, and particularly where there is more than one defendant, we have a process of what we call case management panels, where the decision making is examined by a number of managers at different levels, so chief crown prosecutors will call certain cases in for a case management panel and they go through the whole decision-making process. “What was the evidence? Why did you decide to prosecute? Why did you decide on particular charges? What are you going to present to the court and how are you going to do it?” Some of those also come to me as director’s case management panels. We examine the decision making in that respect. What we do not do is have a way of capturing. We need almost that research project, somebody to sit down and look at it, if we had those case management details, before the guidance—I can’t remember when we started recording it all centrally—and what we do now, which is that we would have access to case management panel details. We do not collect data; it would be around individual cases, which then goes back to anecdote rather than anything statistically that would help.
Chair: Mr Chope is going to put a question to you on a different matter.
Q107 Mr Chope: Can I put a question to you arising from a constituency case? About a year ago somebody in my constituency was arrested for an historic sex abuse matter. His arrest was on the front page of the local paper with a picture of him and all the rest of it. Since then he has never been charged. He was successively put on bail from one month to the next. Then, earlier this month, there was a short two-sentence bit in the inside pages of the same local paper saying that charges had been dropped against this person. He had never been charged. The impact upon that individual and his family was that he was suspended from his job and he has had this matter hanging over him for a whole year. We are told that one of the reasons for the long delay was delays in the CPS. Would you agree with me that this type of example is an indictment of our criminal justice system? Far from being innocent until proved guilty, somebody who is not even charged finds themselves, effectively, condemned by their own society on the basis of hearsay, which is then proved to be totally unfounded.
Alison Saunders: I obviously cannot comment on the individual case and I do not know the individual case, so I couldn’t comment even if I wanted to. There is a lot in what you have just said. If somebody is arrested and there is then an investigation, we would not necessarily be involved in that. We do not name individuals if we are asked to confirm that we have charging requests. We only confirm on charge the name of an individual, unless there is some good reason to do so or unless they have put themselves into the public domain. We are very careful about that for some of the obvious reasons that you highlight.
In relation to delays, I am extremely concerned to make sure that we do not delay our advice in relation to cases. Concerns have been expressed about the amount of time that individuals may be placed on bail. I know that the Home Secretary is looking at that. We should be making sure that we do our decision making as quickly as possible. Equally, we need to make sure, both for the potential suspect and potential victims, that we do our job properly, that we examine the evidence, that if evidence is missing that we request that evidence, that we look at how we build the case and then we make our charging decision in full possession of the facts. There are all sorts of issues around that. Do people need to be on bail? Sometimes they possibly don’t, but sometimes they do. We need to make sure that we have thorough investigations and the ability to charge, or not, in full possession of the facts, but doing that as quickly as possible to avoid the impact that your constituent obviously had.
Q108 Mr Chope: In the past, investigations were carried out and then people were arrested. They might be taken into custody and, within a few days, if they were not charged, they would be released. Some of the advice that I have given—not in this particular case but to others—is that when you are arrested and you are then told that you can have police bail, if you refuse to comply with the bail conditions, it puts the prosecutor or the police in a position where they have to put you in custody and then either bring a charge or release you within three days, or whatever the specified time is. Why do you think that process is not being used more frequently?
Alison Saunders: It still is used frequently. Frequently, people are arrested at a certain point in the investigation, when it can go no further before people are arrested and interviewed, and it is absolutely right that they are given the opportunity to comment on the evidence against them. It depends on the individual circumstances. Some people will be arrested, interviewed or invited in and interviewed, and then not put on police bail. Police bail, of course, means, unless there are conditions, that you are bailed to attend the police station at a certain date. That is all—to come back later at a certain date to receive a charging decision. Again, in some cases, that can be done not through police bail but by arrangement for people to come in at a later date. Conditions are only put on, and should only be put on police bail, when there are real concerns about either a flight risk or interference with witnesses during the course of the investigation. Obviously, where conditions are imposed, we should be making sure that we make those charging decisions very quickly.
Chair: Thank you for your help on that. We must move on. Thank you very much indeed. We are grateful for your help this morning. Thank you for your offer to give us the data that you have spoken of.
Alison Saunders: We will make sure that we do that very quickly. Thank you.
Examination of Witnesses
Witnesses: Rt Hon Mike Penning MP, Minister of State for Policing, Criminal Justice and Victims, Ministry of Justice, Scott McPherson, Director, Law, Rights and International, Ministry of Justice, and Chris Munro, Deputy Director, Criminal Law Team, Ministry of Justice, gave evidence.
Q109 Chair: Welcome, Mr Penning. We are very glad to have you with us this morning. As you know, we are having a second study of the doctrine of joint enterprise and the way it operates. Perhaps you could introduce us to the two colleagues sitting either side of you.
Mike Penning: It might be easier, Chair, if I asked them to introduce themselves—the legal eagles with me.
Scott McPherson: I am Scott McPherson. I am the director responsible for law, rights and international affairs in the Ministry of Justice.
Chris Munro: I am Chris Munro. I am a legal adviser in the Ministry of Justice.
Chair: Thank you.
Q110 Mr Chope: Minister, the Government has repeatedly expressed the view that it sees no need to review the doctrine of joint enterprise, or secondary liability more widely. Could you assure us that you will look afresh at any evidence which arises from the current inquiry and the representations we have received? We really need to have some assurance that the Government’s mind on this is not closed.
Mike Penning: In the five Departments I have sat in over the last four years I would never dream of sitting in front of any Committee and saying that we would not look very closely at the Select Committee’s report, but this particular report is very important because there are families and people on both sides of the argument. It is ever so important that we keep our mind open. We will look very carefully at the report, but as you alluded to in your opening remarks, Mr Chope, the Government’s position at the moment is set—a letter to the Committee has been sent—and we are happy with where we are. Naturally enough, not only will we look carefully at the report but also at the evidence that has been given to the Committee. I think that is very important.
Q111 Mr Chope: Thank you. It has been put to us that it is illogical and unjust that a secondary participant in a joint enterprise can be held liable for murder if he or she had foresight but no intent that murder or grievous body harm might occur in the course of a separate criminal venture. We heard from Dr Dyson from the Faculty of Law at Cambridge that joint enterprise does not require you to show that they have contributed to the second crime in any way, so you have no contribution and you only have foresight, which is an insufficient link. What comment do you have upon what Dr Dyson said?
Mike Penning: I am very aware of Dr Dyson’s comments, but the Government do not agree, as the previous Administration did not agree. This is not something that the coalition have brought in. This was brought in before the coalition Government. We also need to look at appeals; I know this from some of the evidence that has been given to me. Where convictions have taken place using this part of the law, if Dr Dyson’s view was to be upheld in law, you would see a lot more turnover in decisions, and actually you do not see that. It is very robust in the appeals, which I like to see as a Justice Minister, not least because that would mean that the courts are getting it right. If we see lots of decisions overturned on appeal, we have a serious problem within the original decisions.
Q112 Mr Chope: That is only one test. Another test is how many cases before the courts are either dropped halfway, on the order of the judge, or the peripheral participants in the joint enterprise are acquitted. Those cases are often very long-winded, complex, time-consuming and all the rest. If the law was simplified, it might be that there would be fewer defendants in these cases so the cases would proceed in a more orderly way. Would you accept that?
Mike Penning: No. I know you have just heard evidence from the CPS. I would prefer, where it is felt that there is a case to be heard and there is enough evidence to do it, that that is for the courts to decide. Whether it is long and drawn-out is not the important thing; it is whether justice is being done. The justice system we have in this country means that these cases are heard before a judge and a jury. It is very important that they proceed to court. I do not know if my colleagues want to add anything. I am not legally trained at all, so if you want to step in at any time, just do so.
Chris Munro: I do not have anything to add to that.
Scott McPherson: I do not, either.
Q113 Andy McDonald: Have you any discomfort at all with the principle of joint enterprise? Somebody could be convicted on the basis that they foresaw that something could happen—the actus reus and mens rea belong somewhere else—or they ought to have foreseen, and the outcome for that individual in circumstances where they may dispute that they could ever have foreseen what happened on the evidence against them ends up with exactly the same outcome as the perpetrator, the “stabber”, as we often describe somebody. Have you any discomfort at all that this is how that principle is deployed?
Mike Penning: I have looked very hard and carefully at this matter in the few months that I have had this portfolio—long before I knew I was going to give evidence before this Committee—and not only discussed it extensively with my officials but looked at the campaign groups’ views on it. Nothing is perfect within any system that we operate, but I am comfortable that cases would not have been in court and people would not have been convicted for some atrocious murders had it not been for this legislation. I stress that I will continue to look, and keep an open mind as to how the legislation could be improved, for want of a better word, especially in the light of the evidence and the report that comes from this Committee.
Q114 Mr Chope: Are you aware that this phenomenon is now spreading to other parts of the system where secondary participants engaged in a joint enterprise are being charged? Do you think that the wider law on secondary liability is being contaminated by the dilution of these fault requirements?
Mike Penning: I am aware—I will ask my legal colleague to espouse how that is happening—but I am not concerned at this present point that it is corrupt in other parts of the judicial system.
Chris Munro: I have obviously read Dr Dyson’s evidence on the points. I know there are differing academic views on whether joint enterprise and secondary liability should be following the same path. The courts have been saying that joint enterprise is a species of secondary liability. The thrust of Dr Dyson’s evidence, I guess, is that he thinks that mens rea is too low across the board. Again, there are differing academic views about that question, which is one of the issues that we are debating.
Q115 Mr Chope: Victims’ representatives seem to be quite concerned about having a review that could lead to a dilution of joint enterprise, but they are not as robustly against that as the Secretary of State has been in previous evidence. I think they had a more nuanced approach to it, having looked at different aspects of joint enterprise. Up to now, the Secretary of State and your Department have been saying, “All or nothing. We either look at the whole thing or none of it.” Would you be prepared to look at a more nuanced view?
Mike Penning: I am with my Secretary of State, and previous Secretaries of State.
Q116 Chair: That’s an occupational necessity, I suppose.
Mike Penning: It does help. Sir Alan, you know me well enough; I speak my mind. I am content with what this Secretary of State and previous Secretaries of State in the Ministry of Justice have said on this. You could not do a review in isolation. You would have to have a much bigger review, if you went down that avenue, which would have to include the whole area around murder and manslaughter. I robustly support my Secretary of State.
Q117 Mr Chope: Is it because you think there could be a lot of public concern and people might then come forward and say, depending on the outcome of the review, that there have been wrongful convictions, and seek appeals out of time and all the rest of it? Is the concern of the Government that this will open a potential Pandora’s box?
Mike Penning: There will be that. There also is the fact that convictions like Lawrence have been successful because of this legislation. I reiterate what I said; while there are people who have concerns, including some academics, there is a completely different argument coming from the other side. While, perhaps, the victims, campaign groups and individuals were not as robust in their language as the Secretary of State, all the evidence I see from them is that they are in support of the legislation, which has allowed convictions to take place that almost certainly would not have taken place before.
Q118 John McDonnell: There is a view that, on the one hand, joint enterprise has been used as a blunt social policy instrument to address fears about gang culture—that has been whipped up in the media, to a certain extent—and on the other hand, it is being used as a deterrent to young people becoming involved in gangs. Are either of those desirable methods?
Mike Penning: Any form of legislation in this area that is a deterrent is desirable. We would all want people to think very carefully before they were involved in any crime, and the consequence of being involved in crime is the whole principle, I hope, of what we are looking at today. If it has an effect on gang culture, so be it. At the end of the day, my view—a non-legalistic view—is around justice. Justice for the victim is the most important thing.
Q119 John McDonnell: The problem with it being used as a deterrent is that, first of all, someone who might be participating in a gang or joining a gang needs to understand what joint enterprise is, don’t they? Secondly, all the research demonstrates that what they are more concerned about is whether they get caught or not. So it does not become much of an effective instrument if people do not even understand what it is.
Mike Penning: That is one view. I don’t agree with that view.
Q120 John McDonnell: Let me put some figures to you. JENGbA, which is a campaigning organisation, say that 400 men are serving life sentences for joint enterprise offences. We have had evidence from the Institute of Criminology at Cambridge University which shows, from a current study of young prisoners serving lengthy sentences, that 37% of those convicted of joint enterprise in their sample were black/black British, three times the proportion of black or black British in the overall prison population. Many of those convicted maintain their innocence, and many of them do not even understand whether they were principal or secondary offenders. What are your comments on those statistics?
Mike Penning: I am very aware of the statistics that you have used. You have touched on different issues to do with the justice system and the involvement, for instance, of black and ethnic minorities, particularly men, in the legal system, and also those involved in gangs. That does not mean, in any shape or form, that the legislation is wrong, in my opinion. What we have to address—
Q121 Chair: That was a slip of the tongue, I think. We are not talking about legislation but about a common law doctrine.
Mike Penning: Yes; I understand. I am not legalistic, so I apologise if I do not use legal terms. The legal team will understand that. There are lots of people in the justice system who are in prison and say and feel that they are innocent. I go back to the earlier comments that I made. If you look at the appeals in this particular area, the turnovers, where the decision has been deemed to be wrong, are relatively low. Thus, the courts clearly feel that the system is operating correctly.
Q122 John McDonnell: But the statistics show, in relation to the number of black or black British people, that it is three times the proportion of black/black British who are actually within the overall prison population itself.
Mike Penning: That is within the prison system as a whole. I haven’t got the exact figures in front of me, Sir Alan.
Q123 John McDonnell: Let me be precise. I am sorry. I was confusing you there. Let me be absolutely precise. It is three times the proportion of black/black British in the overall prison population. The numbers going to prison are significantly more in relation to this particular charge. What are your comments on that?
Mike Penning: Coming from the part of London that I come from, it really is very worrying. Actually, we need to look at the individuals—what the cases were. We don’t know about each of the individual cases, understandably, but of course those statistics are worrying. We should all be worried, whether they are from our Turkish community or our black and ethnic communities; we have too many people in the courts and prisons from the ethnic minority groups which you have alluded to.
Q124 John McDonnell: Would you be willing to take that back and see what work needs to be done to fully understand why that is happening?
Mike Penning: Yes.
Q125 John McDonnell: That would be really helpful. Thank you. There is an issue of public confidence in the joint enterprise doctrine, and we have seen that in the media, with various films and television programmes. How can that be improved?
Mike Penning: You had evidence earlier on, I understand, from the Crown Prosecution Service, on the guidance they have reissued, which is very helpful. I would argue that the particular documentary and some of the other commentary within the media has not put the argument for the other side, from the victims’ point of view, where some people, quite rightly, feel that people are in prison for offences against their loved ones and they would not have been had it not been for the joint enterprise doctrine. There are two sides to this. It is not just one-sided. That is the point I am trying to make.
Q126 Chair: Does it not worry you, though, when the joint enterprise doctrine is combined with the mandatory sentence for murder? Leaving entirely aside whether there is any question mark over the mandatory sentence for murder—let us assume that that is an accepted fact—once you apply the doctrine of joint enterprise, there are different levels of culpability: there is the person who wielded the knife; there is the person who drove the car away and there is the person who was there in the crowd, but they all seemed to have some foresight and, therefore, they all get convicted under joint enterprise, and they all get the same sentence. They all get a life sentence. Do you not have to look rather more carefully at whether it is right to use the doctrine, given that the sentence cannot be varied?
Mike Penning: That has been looked at, not only after previous reports from the Committee, but also by previous Secretaries of State. It is a really difficult decision. When people go to prison for a very long time, it has a huge effect on them and their families, but we have to balance that against their involvement under the legislation. I understand where you are coming from, but it is a balance that has to be made to protect the public and to protect the victims.
Q127 Andy McDonald: Minister, you mentioned a documentary. Did you see Jimmy McGovern’s “Common” and the documentary that followed?
Mike Penning: Yes.
Q128 Andy McDonald: That is good to know. Can I turn your attention to some factual data on the use of joint enterprise? The Cambridge Institute of Criminology called for the compilation of much more comprehensive statistics on joint enterprise. I am wondering what the obstacles are to routine and continuous compilation of more comprehensive data by HMCTS and others, identifying more clearly and comprehensively the numbers of prosecutions, convictions and appeals in joint enterprise cases, broken down by ethnicity, age, and principal and secondary offenders. We do not seem to have that information at our fingertips.
Mike Penning: No. Some of that was done more recently by the Crown Prosecution Service, but I understand that they are pulling away from that now, based on cost, I think. I was not here for the previous evidence session, but the Crown Prosecution Service probably thinks that that is a responsibility of either the Home Office or the Government as a whole.
Q129 Andy McDonald: We were specifically told that it was an MOJ responsibility.
Mike Penning: Yes. One of the things I will do—obviously it will be one of the recommendations—before we even get to that stage, is to find out what we can produce and how we can produce it, and the cost implications of doing that, and the workload involved. Before I came here, I looked at some of things I wanted to see—some of the things that you have just alluded to, though probably not all—and I will see whether we can do that. There will be huge cost implications of gathering that information in that way. Let’s be honest about that. It has significant cost implications.
Q130 Andy McDonald: Somebody languishing in jail for life might think it money well spent. You will have seen the data produced by the Bureau of Investigative Journalism on the numbers—
Mike Penning: Let me touch on that point. Someone languishing in jail has gone through the judicial system.
Q131 Andy McDonald: Who claims that they are innocent of the crime that they have been convicted of. It may well be that that could be true.
Mike Penning: It may well be, but they have gone through the court system. Presumably, if they felt they were innocent, they would have gone through the appeal system. Actually, there is a victim or victims at the end of this.
Q132 Andy McDonald: Absolutely. Nobody doubts the benefits of the system; it is the dangers that we are trying to address here. You said initially that there are two sides to this. We are very well aware that there are two sides to this argument. We are trying to get to the heart of it. Data has been published by the Bureau of Investigative Journalism on the number of appeals taking place in joint enterprise cases; they are 22% of all published rulings of the Criminal Court of Appeal in 2013, a percentage described in evidence to us as “a terrifying statistic” by Dr Mathew Dyson. Does the volume of appeals give you cause for concern?
Mike Penning: As I alluded to earlier on, no. I think people should have the right to appeal. The key is how many appeals are turned over; in other words, the decision was found to be wrong. It has to be right that people have the right to ask to appeal their sentence. As I said earlier on, do I agree with everything that Dr Dyson said? No, I don’t.
Q133 Andy McDonald: He comments that 22% of those cases are joint enterprise cases.
Mike Penning: Yes.
Q134 Andy McDonald: On the very point you make, the Criminal Cases Review Commission has made a submission to us on their experiences dealing with applications for review of conviction or sentence in joint enterprise cases. They say that only one conviction has been quashed since 2004 out of seven referrals. That is a much lower rate than for all other convictions. They say that it may be particularly difficult in joint enterprise cases for applicants to furnish fresh evidence on mens rea. Do you have any comment on those observations?
Mike Penning: Again, I know the evidence that you are alluding to. It is difficult to take from that anything more than was said in the evidence to you. If people are appealing, if the figure is lower, the way to look at that is from the other end of the telescope. Are the courts getting it right, rather than are they getting it wrong? It is something we will continue to look at. If the original decisions are being upheld in the Court of Appeal, or they are not being given permission to appeal because there is no new evidence, surely that is the way our court system works, and that means it is working well, some would argue.
Q135 Andy McDonald: Unless there is some flaw with the fundamental principle of a young man being at one end of a park when an event is going on at the other end that he has nothing to do with—he is actually walking away from the scene—yet he is pulled into the dragnet and he is convicted of an offence and spends a lifetime in prison.
Mike Penning: I understand the point you are coming to. I just don’t agree.
Q136 Jeremy Corbyn: In response to a previous report, the reason the Government gave for not looking into clarifying the law on joint enterprise was that it would not be easy to disentangle this from the law on murder. Is that still the Government’s position?
Mike Penning: Yes. That is exactly what I said to Mr Chope a few minutes ago.
Q137 Jeremy Corbyn: I have been listening very carefully to your answers; we have taken a lot of evidence and I have met a number of people who are victims of the joint enterprise law. Do you, genuinely, have an open mind on looking again at the whole issue of the criminalisation of people for joint enterprise when there is peripheral or no evidence against them, other than, as Mr McDonald pointed out, mere presence in a park where an appalling event or incident took place?
Mike Penning: I will reiterate what I said to Mr. Chope. I completely support the position that the Secretary of State reiterated. However, I keep an open mind as to what may well be in the report that comes from this Committee so I can take that into consideration as we go forward. Are we at the moment in a position where we would say that we are going to have a review? No, we are not. That is what I exactly said to Mr Chope a few moments ago.
Q138 Jeremy Corbyn: If we were minded to ask for a review, are you saying, in advance, that you would refuse it?
Mike Penning: No. I said, categorically to the Chair and to Mr Chope, that I would look, and the Government would look—because this may be above my pay grade—carefully at what this Committee says and respond in the way that all Governments do to Committees’ reports.
Q139 Jeremy Corbyn: Do you accept that there is a problem that when somebody is wrongly convicted it gives some degree of satisfaction to the family of the victim, or whatever, that somebody has been put in prison, but the reality is that the world is a much more dangerous place because the guilty person might not have been convicted, and an innocent person might end up in prison? It is a fundamental problem with the efficiency of the criminal justice system. Many of us have serious concerns about the operation of law of joint enterprise, which can end up with peripheral presence leading to a very serious offence, which is life ruining.
Mike Penning: I wouldn’t think that anybody would want to see an innocent man or woman in prison. That is my answer to your question. As a Justice Minister, that is exactly where I would come from as well. That is the principle of the whole of our judicial system and, hopefully, it will stay that way for ever.
Q140 Chair: Do you have a view about whether it is desirable to enshrine the doctrine in legislation?
Mike Penning: Only in that it has been looked at extensively in the past, and the decision was not to do so. I have not seen anything yet that would make me change the Government’s position on that; no.
Q141 Chair: Do you think it is possible that if you did try to enshrine it in legislation you might end up, after passage through both Houses, with a more circumscribed doctrine of joint enterprise?
Mike Penning: Sir Alan, you have been in this House much longer than I have. I am not going to predict what would happen when taking any form of legislation through both Houses in any shape or form.
Chair: I couldn’t catch you on that one. Thank you very much indeed for your evidence, your answers to questions and for your expressed willingness to look carefully at what this Committee may say. Thank you very much.
Oral evidence: Joint Enterprise: follow-up, HC 310 21