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Joint Enterprise: Young Black Men

Volume 833: debated on Thursday 19 October 2023

Question

Asked by

To ask His Majesty’s Government, further to the remarks of Lord Bellamy on 14 June (HL Deb col 1990), what steps they are taking to address concerns that joint enterprise case law operates in a harsh way against young black men.

My Lords, joint enterprise case law is primarily a matter for the judiciary. The CPS applies that case law and race plays no part in individual charging decisions. Recognising concerns about possibly disproportionate use of the joint enterprise case law, the CPS has piloted the collection of data on joint enterprise homicide prosecutions. Informed by the results of that pilot, published on 29 September last, the CPS aims to commence a full national monitoring scheme early next year.

The new data that the Minister mentioned confirms, unfortunately, that young black men are disproportionately affected in joint enterprise prosecutions, as campaigners such as me have warned for many years. Black people are 16 times—I repeat, 16 times—more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws. It is absolutely shocking, as I am sure your Lordships all agree. Does the Minister therefore agree that this proves indisputably that joint enterprise is being used in a racist way by prosecutors, and basically as a dragnet to hoover up black urban youth?

My Lords, if I may respectfully say so, the results so far of the pilot prove nothing of the sort. The pilot showed a high number of black males in joint enterprise cases in the 18-24 age group and a high proportion of white males in the 30-59 age group. Those figures, taken alone, do not establish discrimination; disparity on its own does not establish discrimination. That is why, to get to the bottom of this, the CPS will build on the pilot and the national monitoring scheme will commence next February, together with other measures that the CPS is taking.

My Lords, given that we all believe everyone is equal before the law, there have been some troubling statistics on criminal charges against ethnic minority groups. Would my noble and learned friend the Minister like to update us on the work that the CPS is doing in that direction?

I thank my noble friend for that question. The national pilot is part of much wider work by the CPS to understand the high number of charges against persons from ethnic minorities. This includes the publication of the CPS Inclusion and Community Engagement Strategy 2025 and the document CPS Defendants: Fairness for All Strategy 2025. But that is combined with statistical research being conducted by the University of Leeds, with an independent disproportionality advisory group established to advise the CPS. The first stage of the Leeds research is published on the CPS website.

My Lords, the pilot study sample was too small to draw any strong conclusions, as the report and the Minister accepted. However, it is clear that we need a new, wider study and we welcome the announcement of that study. Does the Minister also agree that great care needs to be taken on the evidence so far compiled with the use of the word “gang”, which may be prejudicial? Does he also agree that young black men appear to be disproportionately charged with these offences, particularly in London? Finally, does he agree that to draw meaningful conclusions, the broader study will need to gather data comparing joint enterprise cases with other cases, which was not done in the pilot study?

My Lords, as I have just said, I do not accept that the study so far reveals disproportionality. I accept that this is a very sensitive subject, and we must avoid anything that could be described as inflammatory language. I take on board the noble Lord’s point that we need a proper data study bringing in relevant comparables.

My Lords, the Supreme Court ruled in 2016 that courts had taken a wrong turn over three decades earlier with respect to joint enterprise. Since then, if I am not in error, only one conviction has been overturned, because it is all but impossible to be granted leave to appeal. Does the Minister agree that this appears to be a miscarriage of justice? Does he support the Criminal Appeal (Amendment) Bill put forward by Barry Sheerman to open a new path to appeal?

My Lords, I am unable to agree that this indicates a miscarriage of justice. We do not have precise figures on the number of persons who successfully appealed following the Jogee case. Mr Jogee himself, who succeeded, was then retried and convicted of manslaughter rather than murder. Mr Crilly, who also succeeded on appeal, if your Lordships remember, was the gentleman who bravely and famously intervened in the Fishmongers’ Hall incident. His retrial for manslaughter was subsequently abandoned.

I would like to press the Minister a little further following my noble friend’s question. The Supreme Court, no less, stated in 2016 that the law had been misapplied for 30 years. Leaving issues of race aside, that must mean that a lot of people who should not have faced life imprisonment have faced it. Will the Minister meet other interested noble Lords and campaigners, many of whom are mothers and sisters of those incarcerated, to consider whether for once legislators might assist in remedying judicial error, rather than the other way around?

My Lords, it is relevant to emphasise that the Supreme Court in that case said that only if a substantial injustice could be established would the change in the law be relevant to any future appeal. Of course, I am very happy to meet anyone in the category the noble Baroness refers to.

My Lords, the former Prime Minister, the right honourable Theresa May, established the Race Disparity Unit precisely to identify data and figures that give rise to concern and, on the basis of that concern, to take action. This is precisely such a case. It is to her establishment of the audit that we owe the data. Will the Minister therefore undertake to ensure that there is an understanding in the department that it is not only inflammatory language that causes problems but inaction? Can we have some action on this and on the recommendations of the Lammy report, which still have not been implemented?

My Lords, to the best of my knowledge, most of the recommendations in the Lammy report have been taken well to heart by all concerned. We are discussing here charging decisions, which are a matter for the CPS. As I have explained, the CPS is taking this very seriously, with the University of Leeds advisory groups. On the pilot concerned, there are two aspects of scrutiny. There is a scrutiny panel, which met quite recently and will meet again in February. All these actions are being taken as part of the wider attempt to get to the bottom of why we have such a high proportion of persons from ethnic minorities in the criminal justice system.

My Lords, I read the report from 29 September. It would appear, even with the small sample the Minister referred to, that young black men are overrepresented. That is a cause for concern. Will the Law Commission be reporting on the merits of reforming joint enterprise law as a priority before the end of next year? Will the Government be acting promptly to introduce necessary legislation?

My Lords, as far as I am aware, the Law Commission is looking at the question of reforming the law on appeal. I am not so sure—I stand to be corrected—that it is looking into joint enterprise law, the boundaries of which are for the judiciary. It is an essential part of our criminal law to have a joint enterprise doctrine. The question is: where are the edges to the doctrine?

My Lords, I have visited several high-security prisons since starting my reviews in 2016. On one such visit I met young black men who were secondary parties in a gang-related incident—I use that phrase advisedly—where tragically someone was murdered. Joint enterprise case law then, pre-R v Jogee, meant they were convicted as principals and facing very long sentences. As we are talking about young black men, and it is difficult to surmount the difficulties in securing justice, I ask my noble and learned friend: what are the Government doing to help young black individuals and other secondary parties to surmount those difficulties in securing justice?

Prisoners in the position that my noble friend refers to would have been able to consider the Jogee case and appeal if that was the right course or refer their case to the Criminal Cases Review Commission. The Law Commission is looking into the appeal process, but those legal avenues are open to them.