Tuesday, 1 November 2016

R v Johnson and others ~ Post Jogee "joint enterprise" appeals

Addendum 10th November:

Northern Ireland - R v Skinner and others [2016] NICA 40.


The Criminal Appeals Act 1968 section 18 imposes a 28 day time limit on application to appeal against a conviction but the court has power to permit "out of time" appeals.

The Act also specifies the grounds for allowing an appeal - Criminal Appeals Act 1968 section 2.  The appeal must be allowed if it is "unsafe."

In February 2016, the Supreme Court handed down judgment in R v Jogee - previous post 18th February  - where the court affirmed that the mental element for secondary liability is intention to assist or encourage the crime.  Foresight as to what another may do did not amount, as a matter of law, to intent to assist but it was evidence from which, together with any other evidence, intent could be inferred.   The court unanimously, put the law back on the footing which stood before Chan Wing Siu v The Queen [1985] AC 168 (Judicial Committee of the Privy Council) and  R v Powell, R v English [1999] 1 AC 1

It was to be expected
that the Court of Appeal would receive applications for convictions to be quashed where the conviction (or some aspect of it) had been based on the law as it stood before Jogee.  The problem for "out of time" convictions is that a "substantial injustice" test is applied.  This test was explained at paragraph 100 in the Jogee judgment.

"The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English. The error identified, of equating foresight with intent to assist rather that treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction.  Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only be seeking exceptional leave to appeal to the Court of Appeal out of time.  That court has power to grant such leave, but it will not do so simply because the law applied has now been declared to have been mistaken.  This principle has been consistently applied for many years."

The Supreme Court upheld the principle set out by Lord Judge in 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].

The latest appeals:

On Monday 31st October, the Court of Appeal gave its decision in several appeals brought post-Jogee - R v Johnson and others [2016] EWCA Crim 1613. At paragraph 18 the court said -

"The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law. The requirement takes into account the requirement in a common law system for a court to be able to alter or correct the law upon which a large number of cases have been determined without the consequence that each of those cases can be re-opened. It also takes into account the interests of the victim (or the victim's family), particularly in cases where death has resulted and closure is particularly important."

In the event, all the appeals were dismissed.

Further material:

The Justice Gap 31st October 2016 - Appeal judges reject joint enterprise appeals

Mark George QC - Fresh appeals after R v Jogee - 24th February 2016

Law and Lawyers - Jogee and Ruddock: the correct rule - 18th February 2016

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