Lord Garnier:

Moved by Lord Garnier

486: After Clause 196, insert the following new Clause—“Joint enterprise(1) The Accessories and Abettors Act 1861 is amended as follows.(2) In section 8 (abettors in misdemeanors), after “shall” insert “, by making a significant contribution to its commission,”.”

My Lords, my Amendment 486, co-signed by the noble Lords, Lord Ponsonby of Shulbrede and Lord Berkeley of Knighton, and the noble Baroness, Lady Fox of Buckley, is a probing amendment designed to enable the Committee to consider the criminal law on joint enterprise and the Government to tell us how and when they intend to reform this troubling aspect of our law. The noble Lord, Lord Berkeley, regrets that he cannot be here this afternoon. He had wanted to refer to the law of Scotland, which I will not—simply because it would be a mistake for me to venture into that dangerous water. The noble Lord, Lord Ponsonby, after having listened to what I have to say and endured my speech, might regret that he could be here, but I am very grateful to him for being here.

The instigator of this amendment is Kim Johnson, Member of Parliament. She presented a Private Member’s Bill to this effect in the other place in February 2024, and initiated a debate on joint enterprise through her Amendment 13 to this Bill on Report in the other place in June 2025. Amendment 486 is framed in the same terms, and its supporters come from across your Lordships’ House. Legal academics and practitioners outside Parliament have argued for it as well.

Section 8 of the Accessories and Abettors Act 1861, if changed by my amendment, would provide that “Whosoever shall”—and here I add the amending words—

“by making a significant contribution to its commission”,

and would continue,

“aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender”.

I believe that the noble Lord, Lord Marks, will address the corresponding need to amend the Magistrates’ Court Act 1980 later this evening.

The last Government rejected this proposal because they said it would be too difficult for the prosecution to prove a significant contribution. I disagree. This amendment may not provide the best or only answer, but the intention is to bring to Parliament’s and the Government’s urgent attention the need for clarity, and therefore justice, in an aspect of our criminal law that has, over the years, led to confusion and injustice, as our courts have wrestled with how to deal with defendants who agree to commit one crime but who go on separately or together to commit another one. Over the years, that has led to a version of the law of joint enterprise that has allowed several people to be convicted of a crime, usually murder or manslaughter, even if only one person committed the fatal act. In some cases, there have been demonstrably unjust convictions.

Let me mention a few recent developments. The first is the combined Supreme Court and Privy Council decision in two appeals, Jogee and Ruddock, from England and Jamaica respectively, heard in 2016. If I may, I will refer to those two appeals as Jogee. The question of law relating to the liability of a secondary party was whether the common law took a wrong turning in two cases, one called Chan Wing-Siu, in 1985, and the other the Crown v Powell and English, in 1999.

The Jogee appeals concerned a subset of the law of secondary liability for a crime relating to the person who did not himself forge the document, fire the gun or stab the victim—the person who did so is the principal—but who is said to have encouraged or assisted the principal to do so. There is no question that persons who are indeed together responsible for a crime are all guilty of it, whether as principals or secondary parties. Sometimes it is not possible to determine exactly whose hand performed the vital act, but this does not matter, so long as it is proved that each defendant either did it himself or intentionally assisted or encouraged it.

Jogee did not affect that rule. In Jogee, the court was considering a narrower subpart concerning secondary parties who had engaged with one or more others in a criminal venture to commit crime A but, in doing so, the principal had committed a second crime, crime B. In many of the reported cases, crime B is murder committed in the course of some other criminal venture, but this aspect of the law is not confined to cases of homicide or even to cases of violence. The question in Jogee is the mental element that the law requires of the secondary party. This narrower area of secondary responsibility has sometimes been labelled joint enterprise. To speak of a joint enterprise is simply to say that two or more people were engaged in a crime together. That, however, does not identify what mental element must be shown in the secondary party. The narrower area of secondary responsibility in question, where crime B is committed during the course of crime A, has been in the past more precisely called parasitic accessory liability—a phrase that I have to accept does not exactly trip off the tongue.

The two cases of Chan Wing-Siu and Powell held that, in the kind of situation described, the mental element required of the secondary party is simply that he foresaw the possibility that the principal might commit crime B. If the secondary party did foresee this, the case is treated as continued participation in crime A—not simply as evidence that he intended to assist crime B but as automatic authorisation of it. So the secondary party was guilty under this rule, even if he did not intend to assist crime B at all. This set a lower test for the secondary party than for the principal, who will be guilty of crime B only if he has the necessary mental element for that crime, which is usually intent. That was in contrast to the usual rule for secondary parties, which is that the mental element is an intention to assist or encourage the principal to commit the crime.

Jogee held that Chan Wing-Siu and the Crown v Powell had taken a wrong turning in their reasoning. The decisions departed from the well-established rule that the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. They also advanced arguments based on the need that co-adventurers in crimes that result in death should not escape conviction without considering whether the secondary parties would generally be guilty of manslaughter in any event. The Supreme Court decided that the law must be set back to the correct footing that stood before Chan Wing-Siu.

The mental element for secondary liability is the intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime and sometimes to a range of crimes, one of which is committed. Either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but, in other cases, it takes the form of more or less spontaneous joining in a criminal enterprise. Again, either will suffice.

Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary. If he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. In many cases, the intention to assist will be coterminous with the intention that crime B be committed, but there may be some where it exists without that latter intention.

In most cases, it will remain relevant to inquire whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary party’s intention to assist. This will be a matter of fact for the jury after careful direction from the judge. The error, Jogee says, was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence—albeit sometimes strong evidence—of intent to assist or encourage. It is a question for the jury, in every case, whether the intention to assist or encourage is shown. The correct rule, therefore, is that foresight is simply evidence—albeit sometimes strong evidence, as I say—of intent to assist or encourage, which is the proper mental element for establishing secondary liability.

The story does not end there, I am sorry to say—for those noble Lords who are still with me. For those convicted post Jogee, there is now a concern in the minds of some academics and practitioners that the Court of Appeal has subsequently lowered the conduct element and removed causation once again to widen liability through another error of law.

This criticism follows two cases in the Court of Appeal in 2021 and 2023, one called Rowe and the other called Hussain, where it was held—if I have this right—that, save for procuring a crime, conduct is enough, causation is not necessary and contribution is implicit and need not be measurable. The consequence is that the statutory language of “aid, abet, counsel or procure” is lost, and liability through complicity does not require proof that the accused person made a significant contribution to the crime in which he is alleged to have been complicit. Without a significant contribution, an alleged accomplice is not meaningfully involved in the principal’s crime.

Professor Matthew Dyson in his paper “The Contribution of Complicity”, published in the Journal of Criminal Law in 2022, suggests that judges should direct juries on contribution. This would retain the necessary derivative nature of complicity. Dr Felicity Gerry KC, who appeared for one of the defendants in Hussain, argues that the result of Dyson’s research

“is a much safer legal framework to ensure only those who make a significant contribution to the crime are at risk of conviction. The current approach fails to make it clear that there must be some nexus between the alleged acts of assistance and encouragement and the principal’s commission of the crime. Dr Beatrice Krebs has explained that without further guidance on the level of contribution made by the accessory’s action towards the principal’s commission of the offence, the jury has no tool to distinguish between an accessory who was merely present and one who by their presence has assisted or encouraged. Put simply—the decision in Hussain leaves a real risk of convicting people who make no significant contribution to the crime. The fundamental problem both Dyson and Krebs identify is the Court of Appeal focus on the accessory’s conduct rather than proof of the contribution to the principal’s commission of the offence”.

Dyson’s proposed test of a significant contribution, which I import into Amendment 486, is a measure that could have tightened the conduct element in complicity, just as Jogee envisaged greater care in fault.

Dyson argued that Jogee passed over the important issue of what contribution an accomplice needs to make to a principal’s crime. He submitted that

“English law is too willing to assume that such a contribution has occurred and has little detailed law to test for it” and that a more rigorous approach is needed. He suggested a two-part approach:

“to be liable for assisting or encouraging a crime, the accomplice must make a substantial contribution to the principal’s commission of it; to be liable for procuring the principal’s crime, the accomplice must bring the crime about”.

Whether the accomplice’s assistance or encouragement had made the necessary substantial contribution would be a question for the jury. This approach, he argues, would be consistent with what was said in Jogee about overwhelming supervening acts. Where such an issue arose, a jury would first have to decide what level of contribution the assistance or encouragement of the accomplice had made and would then have to decide whether that had persisted to the point when the principal committed the offence.

The Court of Appeal rejected that proposition in Hussain, so, in addition to all those wrongly convicted before Jogee, there is a growing cohort of prisoners whose contribution to a crime has never meaningfully been measured. With no minimum threshold for the conduct element and, in murder, the consequence of lengthy tariffs on life sentences, this latest approach to joint enterprise contributes to overcriminalisation and overincarceration. Prison overcrowding and perceived injustice are, I suggest, a toxic mix. Absent a further case before the Supreme Court, we look to the Law Commission and the Government to find a way through.

In December 2024, the Law Commission announced a review of homicide and the sentencing framework for murder. It will, among other things, examine the law on joint enterprise following the Supreme Court ruling in Jogee. I suggest that the published timetable for the review is too long: opened in August 2025, with two separately focused consultation papers to be published in 2026 and 2027, it will not report until 2028. Would it not be possible to conclude the proposed review with two separate, if linked, reports—first, much earlier, on the offences, and, secondly, on defences and sentencing—rather than waiting until 2028 to publish one final report? Depending on what is in the legislative programme for 2028-30 and bearing in mind the delays caused by a General Election and changing political priorities, it could be well over two years before anything is done.

I know from my own experience in government and Opposition in Parliament since 1992 that Governments are reluctant to do anything that looks like being weak on crime, especially violent crime, but getting the law on joint enterprise understood and settled in statute is not a sign of weakness but evidence of the search for justice. I beg to move.

My Lords, I thank the noble and learned Lord, Lord Garnier, for introducing this matter so fully. He started by saying that this was a troubling aspect of the law. I want to talk about how troubling it is and to reflect on the academic research which underpins many of the comments he made. I was a youth magistrate for many years, and my experience is underpinned by the academic research which I will refer to.

As the noble and learned Lord said, this originated from Kim Johnson’s Private Member’s Bill. There have been repeated attempts at legislation on this issue. I first became seriously aware of it about 10 years ago when I made a friendship with Lord Justice Bill Davis, who has sadly now died. At that point, I was chair of the board of London youth magistrates and he was the lead Law Lord for the youth justice system. We spoke about joint enterprise and how the law is applied. I believe he had recently conducted or been involved in a review of the whole situation.

I want to draw some of the academic research to the attention of the Committee. Dr Nisha Waller at the Centre for Crime and Justice Studies states that joint enterprise Laws are vague and wide in scope, causing systemic injustice, including overcriminalisation, overpunishment, discriminatory outcomes and convictions where there is no compelling evidence of intent and the defendant’s physical contribution is minimal. Her research shows that the current flawed law encourages, first, the police and the CPS to charge suspects based on poor-quality evidence, secondly, highly speculative prosecution case theory to take precedence over evidentiary foundations, and, thirdly, use of gang narratives and vague concepts such as “being in it together” to imply collective intent, allowing mostly young Black males to be stereotyped and criminalised. She recommends that the scope of secondary liability law must be narrowed in favour of a clearer and safer legal framework and calls on the Government to make good on their commitment to reform the laws of secondary liability as soon as practically possible.

Research by Becky Clarke and Patrick Williams at the Manchester Metropolitan University shows that nearly £250 million is spent every year on prosecuting defendants in joint enterprise cases. About a thousand people a year are convicted under joint enterprise cases and the total future punishment costs of those convictions are about £1.2 billion, so this large number of convictions has an expensive cost implication.

I also want to talk about the group Joint Enterprise Not Guilty by Association. Together with Liberty, it says that the CPS agreed to collect and monitor data on the disproportionate prosecutions of ethnic-minority, disabled and working-class people under joint enterprise. The results of its pilot data collection were stark, showing 16 times more Black people being prosecuted under joint enterprise than their white counterparts. The results from the first full year of the CPS data collection scheme were published in September of last year and confirm stark disparities in charging and prosecution data. The proportion of Black defendants made up 25% of its caseload last year, compared with 4% of the population. The percentage of joint-enterprise defendants who are mixed race is 7.8%, compared with 2.9% of the population.

The CPS also looked at the use of discriminatory language and stereotypes in language used by both police and prosecutors in charging decisions which revealed clear differences in language used to describe suspects and circumstances of offences depending on the subject’s ethnicity. In a letter to the chair of the Justice Select Committee in November 2024 regarding its investigations into the data on disproportionate prosecutions of ethnic minorities, the Director of Public Prosecutions stated:

“it is clear from the data that there have been racial disparities in our legal decision-making”.

This is an ongoing serious issue. I know the Government take it seriously, and the noble and learned Lord has come up with a very practical way of addressing this. I know that my noble friend the Minister will be very familiar with these issues, and I look forward to her response with great interest.

My Lords, if ever there was a day to consider whether we should just assume guilt by association, then today’s political context provides us with a reminder that it is complicated. I have added my name to Amendment 486 on reform of joint enterprise, tabled by the noble and learned Lord, Lord Garnier. Having listened to the elegant and legally erudite contribution from the noble and learned Lord, followed by such a well-informed contribution from the noble Lord, Lord Ponsonby, I am rather nervous that I am going to let the side down somewhat, but let me take a different approach.

Reading through the first-hand accounts in In Their Own Words produced by the Joint Enterprise Not Guilty by Association grass-roots campaign group that the noble Lord, Lord Ponsonby, referred to, really brings home that this tool of criminal justice is destroying too many young lives by incarcerating them for crimes which they made no significant contribution to. Sending people to prison for life and labelling them as murderers when they have not killed anyone, or were in many instances effectively bystanders, is something Parliament must address. Why? We have a responsibility to make sure the law is fit for purpose and applied properly and as originally intended. I think joint enterprise fails on all those counts.

I think we can all understand what the intention of joint enterprise is and was. Sometimes those who do not actually wield the knife do seem equally culpable—the armed robber involved in the heist that has gone wrong is the example always used. It could be deemed that he is as guilty as his accomplice who shot the cashier because he significantly contributed to the crime by, for example, carrying or supplying the gun or threatening the cashier. We can all acknowledge that in the brutal murder of Stephen Lawrence a group was closely involved in the killing.

Interestingly, if you look back to the ancient history of the law, which was explained by the noble Lord, Lord Finkelstein, in a Times article a couple of years ago, it also brings home that things can be complicated but people can be equally guilty. It began, apparently, with duelling aristocrats in the 18th century. The courts hit on the idea of reducing the number of duels by making seconds and surgeons liable for murder alongside the principals, so once more we can blame the hereditaries for everything that has gone wrong since—that was a joke.

It is important to stress that this is not about getting the guilty off the hook because behind each of these joint enterprise cases, the victims of crime, the families of those brutally killed, must not be forgotten, but justice for them is ill-served by overcriminalisation or overpunishment of the wrong culprits.

I want to use a couple of examples. Faisal Fiaz found out about the murder that he “committed” at the same time as everyone else because he saw it on social media. He did not know beforehand that there had been a murder because he was waiting in the back of a car as two of his colleagues in the drugs gang he was involved in went round the corner intending to steal cannabis from a local dealer. I want to stress that Faisal was no angel—he was involved in the drugs trade; he was a teenager in a gang—but he did not know that his gang accomplices were carrying a knife or that they had gone on to stab the dealer to death. The stabber fled the country to Pakistan and is still at large, whereas Faisal was jailed for life, with a minimum of 23 years, without any compelling evidence of intent or knowledge of the crime about to happen or even that it had happened. His presence in the vicinity and guilt by association was deemed enough to suggest to the CPS that he contributed to the murder in such a way that he is in prison for life. He was punished as harshly as he would have been had he wielded the knife, but I do not think that was the original intention, which was for the heist gone wrong or a duel.

That seems to be the crucial weakness in the current law of joint enterprise: the courts seem indifferent to the precise contribution to the crime of the accused, and this breaks the link between any action and accountability for that action. In this context, of course evidential standards are watered down and can even be dispensed with.

I was struck listening to Joseph Appiah, who was part of a group that clashed with rival schoolboys when he was 15. He was 200 yards away from the fatal stabbing of a 16 year-old. He did not stab the victim, nor did he see the stabbing, and he assumed that that would all be taken into account. He said:

“I didn’t see it, I didn’t know what happened and I can account for where I was, I could prove it. I always thought, well, you know, I didn’t do it, so when all the evidence comes out, eventually they will see the light, but that’s not how it went”.

Despite no DNA or evidence that he was directly involved or that he saw the act or knew that a knife was involved, he was found as culpable as the teenager who did in fact commit a stabbing.

Understandably, people conclude that the law of joint enterprises is so loosely interpreted by the criminal justice system because it makes it easier to secure convictions. It removes the faff of investigation, evidence gathering, proof beyond reasonable doubt and so on. In other words, it fuels cynicism in criminal justice. There are also side injustices created by the courts wielding joint enterprise as a blunt instrument. Fear of being convicted that way means that defence barristers have been known to persuade innocent clients to plead guilty to lesser charges such as GBH to avoid a trial of joint enterprise.

All these problems are well known, as we have heard. Back in 2016, the Supreme Court ruled that the law around joint enterprise had taken a wrong turn and been used wrongly for three decades. The court thought that it was rightly restoring the proper law of targeting those who intended to commit or assist in a serious crime. But, as we are all too aware, Supreme Court clarifications are not always used to rectify wrong readings of the law—the Centre for Crime and Justice Studies has revealed that, in the three years leading up to the ruling in 2016, 522 individuals were charged, but in the three years afterwards, 547 were.

As others have noted, reform of joint enterprise has gone as far as it is possible for it to go in the courts, and it now needs a change in the law. I give credit to Kim Johnson MP, who has used her voice in the other place to draw attention to this and inspire us all. Her attempts have failed so far, but the Government should now grab this chance, here in Committee, to right this wrong.

I have some qualms with one part of this debate, however, which is the implication that this is an actively racist law, or, to quote Jimmy McGovern, that its purpose is allegedly

“to keep scum off the streets, that’s how I think the police see it. That’s how they see all these young people – as scum”.

I loved Jimmy McGovern’s powerful 2014 drama “Common”, but I do not think that that is what is going on here. Joint enterprise has been used by many in good faith to try to tackle the scourge and blight of gang violence.

Yes, young Black people are 16 times more likely to be prosecuted for joint enterprise—there were also lots of young people, with 14% between the ages of 14 and 17 and 40% between 18 and 24, and 93% of defendants were male—but let us be honest: there is a real problem of young Black men stabbing each other. I live in Wood Green in Haringey, and it is real and it is not racist to note it. It is something we have to take into account.

We have a problem of young men for trivial reasons indulging in violence. We have cultural and social problems, and the collapse of adult authority in reining in alienated, disenfranchised young men. There are big cultural issues that demand our urgent attention. But how is rounding up young men for hanging around together and indulging an aggressive violent counterculture and then sending them into prison—where gang culture becomes replicated and normalised when they have not actually committed a crime—going to help? I do not know how we can think that that will help; it will just make things a lot worse.

We need to teach these young people—largely young men and boys—that they need to take responsibility for their actions, their conscious decisions, their interventions. We should not be turning them into victims because one of the people that they hung around with acted out the violent rhetoric and took another life, while they did not but were held equally guilty. So, assuming collective intent or collective guilt is a terrible law and unjust. We need these young men to understand that the criminal justice—

I just ask the noble Baroness to come to her conclusion—

We need them to understand that the criminal justice system is not targeting them personally for crime but is fair and proportionate. That is what we should do.

My Lords, I support Amendment 486 and thank the noble and learned Lord, Lord Garnier, for his excellent introduction to it, which was very clear to follow.

Over the decades, thousands of people have been wrongly jailed for life in appalling miscarriages of justice because of the use of joint enterprise to charge those present with the commission of a serious crime. Sometimes that might be someone who was present and thought they were going to be involved in a low-level crime, whereas they had no involvement at all in the actual violence or murder committed by another but were still charged under joint enterprise as if they had also committed the act of violence or murder. That is very similar to the example that the noble Baroness, Lady Fox, gave us.

Even worse, there are those who have been jailed for murder simply because they were present at the act of murder, although they had not been members of the gang involved. Over the last 15 years, this House has seen various amendments and had debates and questions trying to correct and clarify when charges should or should not be used for those who did not commit serious acts of violence. As has already been mentioned, a decade ago the Supreme Court recognised that joint enterprise had been used repeatedly and incorrectly in many cases, but nothing has really changed since then. I am grateful to the noble Baroness, Lady Fox, for quoting the figures for the three years before and after 2016, because that judgment has not changed the numbers either.

The key questions addressed by the Supreme Court, including what qualifies as assistance and encouragement, remain obfuscatory. It is still not clear whether presence at a serious crime is in itself enough. I will not repeat the data that the noble Lord, Lord Ponsonby, and others have mentioned in the briefing we got from Joint Enterprise Not Guilty by Association. I differ slightly from the view of the noble Baroness, Lady Fox. It is quite notable that over 50% of those prosecuted are not just young Black men and women, but there is also substantial overrepresentation of disabled and neurodivergent people, as well as many under 25. I might understand the last, but not the others on their own.

The proposal of the noble and learned Lord, Lord Garnier, would completely change the approach to considering who has been involved in serious crime. The amendment would ensure that, rather than guessing the individual's state of mind, associations and foresight of what might occur, the CPS must look at actual material actions, making that the baseline objective threshold for prosecution. I hope that the Minister is finally prepared to change the injustice in the use of joint enterprise and start a new era based on facts, not suppositions.

My Lords, I fully support this Amendment. I agree effectively with every word that has fallen from the lips of the noble and learned Lord, Lord Garnier, the noble Lord, Lord Ponsonby, and my noble friend Lady Brinton, and almost every word uttered by the noble Baroness, Lady Fox of Buckley. I hope that the Government will listen and give careful consideration to this amendment.

The law of joint enterprise has long been unsatisfactory. It was substantially improved by the decision of the Supreme Court in the Jogee case, as explained by the noble and learned Lord, Lord Garnier. The present state of the law in the light of Jogee is that an offence is committed by an accessory only if the defendant charged as an accessory intended to assist the principal in the commission of the offence. Even so, the law is still unsatisfactory and unclear, as extensively supported by the academic evidence cited by the noble and learned Lord, Lord Garnier, and by the noble Lord, Lord Ponsonby, and it sorely needs reform.

The phrase “significant contribution” to the commission of the offence used in the amendment is apt. It would overcome the difficulties mentioned by the noble and learned Lord, Lord Garnier, with the Court of Appeal’s position on the related accessory offences of procurement. The phrase has been proposed by the Centre for Crime and Justice Studies and widely by academics. It was the phrase used in Kim Johnson’s Private Member’s Bill, which was supported by, among others, Sir Bob Neill, who was then chair of the Justice Select Committee, and therefore one presumes by the committee itself.

While the expression may in some ways seem vague, it sets exactly the type of test that juries can and do recognise and regularly apply, rather similarly to the test for dishonesty used in relation to Theft Act offences. The amendment would make an offence of being an accessory much more comprehensible and justifiable than the present test. The present test, I suggest, focuses disproportionately on the mental element of accessory liability, whereas the amendment would focus on the actual contribution of the accessory to the commission of the offence.

There is considerable cause for concern that joint enterprise law in its operation is discriminatory. The noble Lord, Lord Ponsonby, mentioned the research showing that Black people are 16 times more likely to be prosecuted on the basis of joint enterprise than white people. The noble Baroness, Lady Fox, mentioned the same research. What neither mentioned is that that staggering figure—I suggest that it is staggering—was based on the CPS’s own figures for 2023.

I accept that there may be cultural issues, as mentioned by the noble Baroness, Lady Fox, but they have to be judged against the caution that was mentioned by my noble friend Lady Brinton. There is also serious evidence of unjustified, unwarranted group prosecution. There is significant concern about evidence of racial bias and the risk of guilt by association in consequence. The point made by the noble Baroness, Lady Fox—that it sometimes may seem easier to prosecute for joint enterprise than by establishing individual guilt—is, or may be, justified. Concerns about guilt by association and gang involvement are entirely legitimate. I think they are shared by the public, and they are evidenced by the clear examples we have heard today. They evidence a lack of principle in prosecution and in the application of the law.

In evidence to the Leveson review, Keir Monteith KC and Professor Eithne Quinn from the University of Manchester argued that joint enterprise was overused. They went so far as to say that it contributed, as inevitably statistically it does, to the growth of the backlogs. They cited the trial of seven Black teenagers in 2022 who were accused of murder, where the prosecution accepted that they could not be sure who stabbed the victim, but asserted that all of those who went to the park where the killing occurred

“shared responsibility, at the very least contributing to the force of numbers”.

That was an inaccurate or, at the very least, incomplete statement of the law in the light of Jogee. Six of the seven defendants were acquitted, but the fact that they were tried and went through the period that they did prior to trial highlights the confused state of the law, which makes the essential ingredients of the offence difficult for jurors and sometimes even prosecutors to understand.

We should also take into account, particularly given the delays in bringing trials to court, the serious risk of charges based on joint enterprise leading to defendants who are ultimately acquitted being held on remand, as one of the seven defendants in the case I mentioned was for no less than 14 months.

Finally, I have a technical point that was mentioned by the noble and learned Lord, Lord Garnier, to whom I had mentioned it. While I support the amendment completely, it needs to be reworded or supplemented to cover summary offences. That is because, as a result of the amendment of Section 8 of the Accessories and Abettors Act 1861 by the Criminal Law Act 1977, the accessory offence under the 1861 Act applies only to indictable offences—offences that are either indictable only or triable either way. A parallel amendment to Section 44(1) of the Magistrates’ Court Act 1980 is required to cover summary offences. There is no justification for distinguishing between them. With that rather academic point, I hope that the Government will act on this.

My Lords, I am grateful to my noble and learned friend Lord Garnier for bringing forward this Amendment and for the care and intellectual rigour with which he has set out the case for revisiting the law on joint enterprise. He has laid out a clear case for why this area of criminal law generates much concern, not least because of the length of sentences involved and the understandable anxiety about culpability and clarity in attributing criminal responsibility.

My noble and learned friend has, rightly, reminded the Committee of the complex and often unsettled journey that this area of law has taken, from the missteps identified by the Supreme Court in Jogee through to more recent Court of Appeal decisions, which some commentators argue have again widened liability in ways that risk injustice. His concerns about overcriminalisation and the potential for convictions where an individual’s role is marginal are serious points that deserve careful reflection. I look forward to hearing the Minister’s thoughts on them.

That said, while I welcome this debate and acknowledge the force of many of the arguments advanced, I am not persuaded that this amendment provides the right statutory solution at this stage. The introduction of a requirement that an accessory must have made a “significant contribution” to the commission of an offence raises difficult questions of definition and application. What amounts to “significant” is not self-evident. If left undefined, it would inevitably fall to the courts to develop meaning over time through case law, creating precisely the uncertainty and inconsistency that this amendment seeks to address. Alternatively, attempting to define “significant contribution” exhaustively in statute risks rigidity and unintended consequences across a wide range of factual scenarios. Tied to this, there is currently a wealth of case law that can be applied by the courts when considering joint enterprise. This case law would be made redundant in many scenarios if the law were to be changed by this amendment, which would surely not be desirable.

I believe that my noble and learned friend acknowledges that this amendment may not be the only way, or even the best way, but rather uses it as a probing amendment to draw attention to the problem. There is clearly an ongoing need to ensure that the law of secondary liability remains anchored to principles of intention, causation and moral culpability and that juries are properly directed to distinguish between meaningful participation and mere presence.

However, given the Law Commission’s ongoing review of homicide and sentencing, which includes consideration of joint enterprise in light of Jogee, I am cautious about pre-empting that work with a statutory change that may generate further ambiguity. Reform in this area must be evidence based and coherent. While I welcome the discussion sparked by this amendment and commend my noble and learned friend for his persistence in pursuing clarity and justice, I cannot lend the amendment my support today. However, I hope the Government will reflect carefully on the concerns raised and indicate how they intend to ensure that the law on joint enterprise is both fair and clearly understood.

My Lords, Amendment 486 in the name of the noble and learned Lord, Lord Garnier, raises an issue that has long troubled the criminal justice system. I am very grateful to the noble and learned Lord for giving me sight of his speech in advance.

The criminal liability of secondary parties is an important but sometimes controversial concept in the law, and the Government acknowledge the anxiety over the consequences for those prosecuted and convicted as a result of the application of the rule. On the one hand, there are very real and understandable concerns. First, we recognise the anxiety that this has a disproportionate effect on young people and on those from certain ethnic groups. Secondly, it is a matter of serious concern that the law is widely misunderstood. For example, I pay tribute to the noble Baroness, Lady Fox, in relation to her powerful speech, but in fact she said several things that were not quite right. For example, we have no law of collective responsibility, and mere presence without more is never enough to convict. Even lawyers and judges sometimes struggle with the application of this concept, as any of your Lordships who attempted to follow the limpid explanation of the law in this area from the noble and learned Lord, Lord Garnier, may well understand.

On the other hand, and seriously, it must be remembered that the reason why the rule exists is to ensure that it is possible to prosecute those who take part in group crimes—often, but not always, crimes of violence. Please remember that if your son or daughter was attacked by a large group, one of whom may have held the weapon, but others of whom were assisting and encouraging, you would want the entire group to face justice—more so if, because it was not possible to distinguish which of the many feet was kicking the victim, you could not prosecute any of them because you could not show which foot in fact delivered the fatal blow among the others which contributed to it. This is what, among other things, the doctrine of joint enterprise is there to cover.

I appreciate that the noble and learned Lord’s amendment is intended to probe the Government’s position. While the intention behind the amendment is understandable, as drafted, we believe that there are flaws in it which mean that it is not acceptable and would cause more difficulties than it solved for the courts which have to apply it. The issues about which the Government have concerns include the point made by the noble Lord, Lord Davies, about what would count as “significant”. For example, is purchasing the weapon or acting as a lookout significant? What about shouting encouragement or driving the getaway car? You could not just leave this to a jury to decide, because then there would be a real risk of unacceptable disparities in decisions made on the same facts. In one part of the country, acting as a lookout could mean you were guilty of murder, but in another part, on the same facts, you would be acquitted. You could even get those results in courtrooms next door to each other in the same building. Such uncertainty would make prosecutions in group violence cases pretty much impossible, as well as leading to verdicts which would not command public confidence.

There are further issues, one of which has been identified by the noble Lord, Lord Marks, in relation to the magistrates’ court, but the amendment does not apply to the full range of offences because it does not address how it interacts with other forms of secondary liability, such as encouraging or assisting a crime under the Serious Crime Act 2007. The noble and learned Lord’s summary of the development of the law pre and post the landmark case of Jogee in 2016 illustrates, I venture to say, the great complexity of this area, but I reassure your Lordships that the Government are listening.

Mention has been made of the few important pieces of work that are going on in this area. As the noble and learned Lord, Lord Garnier, has said, the Law Commission’s review of homicide offences and sentencing for murder is considering the implications of the current law on joint enterprise. I note the noble and learned Lord’s concerns about the length of time, but I should make it clear that the Law Commission is an independent body—in a sense, that is part of the point of it—which decides how to run its projects. It is not looking at joint enterprise on its own but at how joint enterprise is related to homicide offences and sentencing. One of the things it is considering is whether we should adopt a first and second degree murder to reflect the different roles played in sentencing, if not necessarily in conviction for a particular offence. As the noble and learned Lord will know, there is a significant interaction between the categorisation of homicide offences, the impact of partial defences and mandatory sentencing requirements, which makes separating out of these aspects of the report more complex.

Secondly, the Law Commission’s review of criminal appeals is examining if or how historic convictions are considered, which is a key area of concern for many people. Thirdly, the CPS has been consulting on its policies on gang-related prosecutions. This includes the controversial use of drill and rap music as evidence. It is also improving data collection on joint enterprise cases. As a number of your Lordships have referred to, last September, the CPS published its first annual data report on joint enterprise homicide and attempted homicide cases. The Government also recognise the important work of the All-Party Parliamentary Group for Miscarriages of Justice and the Westminster Commission, in which the noble and learned Lord is involved. I need not remind him that it is in the process of taking evidence and considering reform of joint enterprise, and we look forward to its report.

So, while the Government recognise the concerns about joint enterprise, and work is under way to address these issues, we cannot support this amendment today for the reasons I have given, and I invite the noble and learned Lord to withdraw his amendment.

Can I just ask the Minister to reconsider, or at least explain, her argument that it is significant in this regard that different juries might come to different conclusions on the same or similar facts in different parts of the country, on one day or another? Is not her experience as a judge that that is an everyday event? Does she not consider that that is one reason why juries do not give reasons and are not asked for their reasons for any given decision that they make? Because it is a fact of life that we all accept.

Not giving reasons is of course one of the criticisms that is sometimes made of jury trials. In the Government’s view, the wider and broader concept in the current law of an act of assistance or encouragement, combined with the intention to assist or encourage, gives a broad enough scope to allow juries to look at the conditions in every different case—whereas, when you are saying a “significant contribution”, it would be a matter of value judgment for particular juries as to whether they thought that a lookout was a significant contribution or not. For that reason, we think it would introduce significant uncertainty and significant risk of disparity in verdicts.

My Lords, I thank all noble Lords who have taken part in this debate. It has been, for me, an interesting and educational 55 minutes and I hope that the Government will have found it so as well. Although the Law Commission is of course an independent body, I dare say it might be sent a copy of this evening’s debate, which might encourage it to accelerate the way in which it is looking at this admittedly difficult and complicated question. I do not think that any of us who have spoken this evening thinks it is an easy question.

I thank the noble Lords, Lord Ponsonby and Lord Marks of Henley-on-Thames, the noble Baronesses, Lady Fox and Lady Brinton, and my noble friend on the front bench Lord Davies of Gower for their thoughtful and useful—I do not say “useful” in a demeaning way; I genuinely mean it—contributions to this debate, because it is, as I have said, difficult. The Minister was the first to accept that. She and I—and perhaps the noble Lord, Lord Marks, and others—will have summed up to juries and directed juries on the question of joint enterprise in one case or another. I dare say, at Snaresbrook Crown Court, there were probably quite a lot of difficult cases that had to be dealt with. However, I do not accept the Minister’s suggestion that juries would find it difficult, or that it would create other sorts of difficulties, to work out what “significant contribution” means.

Juries can work out, following proper direction from the judge, how to deal with actions taken in self-defence. You could get a different set of facts which would allow the defence to run, whereas, in other cases, it would not. Significant contribution is not a difficult concept, and it is not one that 12 members of a jury, when properly directed by the judge and having heard arguments from the lawyers for the respective parties, the prosecution and the defence, could not grapple with. They could. One has to think not just about “significant contribution”: let us work out what “no contribution” means. What does “insignificant contribution” mean? It strikes me that by simply posing those questions, one should not be frightened of the “significant contribution” question.

As I say, I understand the public policy, I understand the politics and I understand that my Government in the past, and now this Government, are worried about being seen to be weak on crime. For goodness’ sake, we have heard that record played year in, year out. But I hope that this evening’s short discussion will encourage others outside Parliament to keep pressing their arguments, both in court and academically. I hope that those who have taken part in this debate will continue to press for reform in this area. And I hope that the Law Commission, if it is listening, will accelerate its process.

It is now nearly 7.15 pm on a Thursday and it is almost a capital offence to talk in Committee stage on a Thursday at this hour. So I will bring my remarks to a conclusion by finally repeating my thanks to all those who have taken part. I beg the leave of the Committee to withdraw my Amendment.

Amendment 486 withdrawn.