Tuesday, 23 February 2016

The Jogee case ~ more thoughts

Update 16th September 2016:  

Following retrial, Jogee was convicted of manslaughter and sentenced to 12 years imprisonment.
Updated 24th February

Just a little bit more about the Supreme Court's important decision in - R v Jogee [2016] UKSC 8

The term Joint Enterprise:

The Supreme Court said (at para 77) that "joint enterprise" is not a "legal term of art."  The court noted:

"As the Court of Appeal observed in R v A [2011] QB 841, para 9, it is used in practice in a variety of situations to include both principals and accessories. As applied to the rule in Chan Wing-Siu, it unfortunately occasions some public misunderstanding. It is understood (erroneously) by some to be a form of guilt by association or of guilt by simple presence without more. It is important to emphasise that guilt of crime by mere association has no proper part in the common law."

Will the decision lead to numerous convictions being overturned on appeal?

Despite some media comment about this, there isn't any truly good reason as things stand to suppose that the important change brought about by Jogee will result in many successful appeals in those cases where the pre-Jogee law applied (i.e. parasitic liability cases).  The Supreme Court itself sought to make this clear - see Jogee at para. 100 where the court drew attention to R v Cottrell and R v Fletcher [2007] EWCA Crim 2016.  At para. 46 Lord Judge LCJ said:

"We have already burdened this judgment with what may otherwise appear to be an unnecessary citation of authority in order to establish that it has for very many years, and still is, as Hughes LJ described it in R v Ramzan and others [2007] 1 CAR 150, the "very well established practice of this court, in a case where the conviction was entirely proper under the law as it stood at the time of trial, to grant leave to appeal against conviction out of time only where substantial injustice would otherwise be done to the defendant". In short, the principle is that the defendant seeking leave to appeal out of time is generally expected to point to something more than the mere fact that the criminal law has changed, or been corrected, or developed. If the appeal is effectively based on a change of law, and nothing else, but the conviction was properly returned at the time, after a fair trial, it is unlikely that a substantial injustice occurred."[My emphasis].

Therefore there has to be "substantial injustice" before the Court of Appeal will grant leave for an appeal out of time.  Even then, if leave is granted to appeal a murder conviction, there is often the possibility that the Court of Appeal could substitute a manslaughter conviction.

The "substantial injustice" point seems likely to reduce possible appeals to small numbers.

As Cottrell and Fletcher decides, the same principles must govern the decision of the Criminal Cases Review Commission if it is asked to consider referring a conviction to the Court of Appeal - (see Jogee at para 100).

Addendum 24th February - It is always interesting in law that there is frequently contrary argument.  Mark George QC has argued on his blog that the view expressed by the Supreme Court at Jogee para. 100 (where Cottrell and Fletcher is cited) is open to challenge on the basis that Jogee has not actually changed the law but has corrected a misinterpretation of the true law that has stood for 30 years.  Please read his post.   Mark George argues that there is a difference between cases where Parliament has altered the law ("new law") and those situations where an appellate court has restated what the law always was.

Is the "substantial injustice" rule fair?

Many will claim that it is not.  If the law is changed then why should those previously convicted on the basis of the old law have to continue to stand convicted?  The answer was supplied by the Lord Chief Justice in Cottrell and Fletcher at para.42:

" ..... Those convicted on the basis of the old law assert that their convictions were based on an erroneous understanding of the criminal law and that they have therefore suffered an injustice. At the same time there is a continuing public imperative that so far as possible there should be finality and certainty in the administration of criminal justice. In reality, society can only operate on the basis that the courts administering the criminal justice system apply the law as it is. The law as it may later be declared or perceived to be is irrelevant. Change of law appeals create quite different problems to those which arise in the normal case where an individual was wrongly convicted on the basis of the law which applied at the date of conviction. These tensions are not confined to England and Wales." [My emphasis].

Addendum 24th February - Again, Mark George QC puts a strong argument that the courts ought to now correct previous cases where they have been based on a misinterpretation of the law as opposed to an actual change of law.

Other types of "joint enterprise":

A common mistake is to describe the Stephen Lawrence as "joint enterprise" and then to jump to the conclusion that Jogee somehow applies to it.  This is not so.  Two men stand convicted of that murder and they were part of group attack on Stephen and his friend.  Such a group attack is obviously a form of "joint enterprise" but is of a different nature to Jogee's case.  Those in the group attacking Stephen shared a common intention. It was NOT a parasitic liability case and that is what Jogee was concerned with.  See the R v Dobson and Norris - Sentencing Remarks by Mr Justice Treacy.

Powers of the court and fair trials:

On hearing a criminal appeal, the Supreme Court has powers to quash the conviction; quash a conviction but substitute another permissible conviction (e.g. manslaughter rather than murder); order a retrial or remit a case to the Court of Appeal. 

In Jogee,  the Supreme Court (para. 107) stated that "at a minimum" Jogee was guilty of manslaughter and they also added that there was a case fit to go to the jury that he had the mens rea for murder.  Having said that, the court went on to raise the possibility of a retrial.  At least in the minds of lawyers, the question will arise as to whether a fair retrial before a jury is now possible.  Jurors have it hammered into them that they must not research the case they are hearing and it is an offence to do so: Criminal Justice and Courts Act 2015 section 71.  Nevertheless, given the massive publicity about the court's decision, could it be confidently said that jurors would not know the views of the Supreme Court?

In the Ruddock case, having looked briefly at the Jamaican trial, the court merely asked (para. 120) for "written submissions as to the advice which it should humbly tender to Her Majesty regarding the disposal of the appeal."

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