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.