Lord Davies of Gower (Con)

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.