A government minister refused to accept that new data on the racial disproportionality of joint enterprise demonstrated that the controversial common law legal doctrine joint enterprise was ‘racist’ in a debate in the House of Lords yesterday.
The Labour peer Lord Tony Woodley asked the government to identify steps ‘to address concerns that joint enterprise case law operates in a harsh way against young black men’. The peer, a former general secretary of the trade union Unite, is to head up a new Westminster inquiry into joint enterprise by the All-Party Parliamentary Group on Miscarriages of Justice.
For many years, the courts and the Crown Prosecution Service have resisted publishing race data on the use of joint enterprise despite campaigners arguing that the law disproportionately targeted young black men. The CPS last month finally published the results of a pilot survey last month – as reported by the Justice Gap (here). ‘The new data confirms, unfortunately, that young black men are disproportionately affected in joint enterprise prosecutions, as campaigners such as me have warned for many years,’ Lord Woodley told fellow peers. ‘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. 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?’
Lord Bellamy, parliamentary Under Secretary at the Ministry of Justice, insisted the results 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,’ he said. ‘Those figures, taken alone, do not establish discrimination; disparity on its own does not establish discrimination.’
Lord Paul Boateng, the Labour MP, pointed out that Theresa May, had set up the Race Disparity Unit precisely to identify data and figures that ‘give rise to concern’. ‘This is precisely such a case. 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?’
Peers also pointed out that courts had so far failed to get to grips with the law since Supreme Court ruling in 2016 (Jogee) that they had taken ‘a wrong turn’ over three decades earlier. ‘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?’ asked Baroness Christine Blower. ‘Does he support the Criminal Appeal (Amendment) Bill put forward by Barry Sheerman to open a new path to appeal?’
Baroness Chakrabarti, the former director of the civil liberties group Liberty said of the Jogee ruling: ‘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?’
David Lammy, the shadow justice secretary, has told a JENGbA rally in 2021 that a Labour government would reform the law. ‘I stand in solidarity with you and we will get there, we will change this law,’ he said in 2021. ‘It is shoddy law, it’s outdated, it’s backward. How can you be in custody for years and years and years when you weren’t anywhere near a crime?’
There was concern expressed by Tory peers as well including Lord Michael Falmer who recalled visiting high security prisons and meeting young black men convicted as secondary parties serving life under the law pre-Jogee. ‘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?’
