Jogee - 30 months after the Supreme Court judgment

For over 30 years the criminal law equated 'foresight' on the part of a co-accused with 'intent to assist' the principal offender.  In R v Jogee [2016] UKSC 8, the Supreme Court court unanimously held that the correct approach was to treat that foresight as ‘evidence of intent’ together with the rest of the evidence - Previous post 18 February 2016 and Barrister Magazine 20 April 2016.

Almost 500 people are thought to have been convicted of murder between 2005 and 2013 as secondary parties in joint-enterprise cases, many in gang-related attacks.


An appeal from conviction on indictment lies with leave as stated in section 1 of the Criminal Appeal Act 1968.  Section 1(2) - "An appeal under this section lies only - (a) with the leave of the Court of Appeal; or (b) if, within 28 days from the date of the conviction, the judge of the court of trial grants a certificate that the case is fit for appeal."

Fundamental as the point of law decided by Jogee is, the Supreme Court poured water on any idea that convictions would easily be quashed for those already convicted on the basis of the law as it was previously stated to have been.  In R v Johnson and others [2016] EWCA Crim 1613 the Court of Appeal considered a number of post-Jogee appeals and set down the requirements to obtain leave to appeal.  The appellant has to show that the trial court's application of the law as it was understood has resulted in "substantial injustice."  

The recently published Court of Appeal (Criminal Division) Report for 2016-17 contains a section looking at the post-Jogee situation - see pages 5 to 8 of Court of Appeal (Criminal Division) Annual Report 2016-17.

The only pre-Jogee conviction quashed to date is that of John Crilly - see the ICLR Report - where the Court of Appeal held that the evidence against the appellant was not so strong that it could be safely and fairly inferred that the jury would have found the requisite intent to cause really serious bodily harm had the issue been left to them by the judge. Accordingly, it followed that the conviction was unsafe. A retrial was ordered.

In Counsel Magazine September 2018, Paul Taylor QC considers the position as it now is - Counsel Magazine "The Jogee Effect."  Taylor asks - "Is it possible to discern any general principles as to when the Court of Appeal is most likely to quash a conviction as a result of the post-Jogee clarification? On the basis of the one case in which the court did, the positive factors are likely to be the absence of a weapon and any initial agreement to do violence, attempts to stop the violence by others and to withdraw, and limited violence."

No doubt there will be cases where leave to appeal would be refused with the result that a murder conviction (together with the mandatory life imprisonment sentence) will stay in place when a manslaughter conviction would have been more appropriate on the basis of the law as stated in Jogee.

In Jogee's case itself the Supreme Court ordered a retrial.  He was convicted of manslaughter and sentenced to 12 years imprisonment.  A similar outcome will not be possible for some unless they can first overcome the hurdle of exceptional leave to appeal.

In Garwood, Miah and Hall [2017] EWCA Crim 59 the applicants attempted unsuccessfully to bring the ‘substantial injustice’ test back before the Supreme Court to review and clarify. The Court of Appeal refused to certify a question because it had no jurisdiction to do so because there had been no ‘appeal’, only applications for leave.