Criminal law
In the waiting room for justice: appeal court rulings post-Jogee
Charlotte Henry describes her family’s fight, as part of the campaign group Joint Enterprise: Not Guilty By Association (JENGbA), to reform the law of joint enterprise.
About the author
Charlotte Henry is a campaigner for Joint Enterprise Not Guilty by Association (JENGbA) following the conviction of her brother, Alex Henry. She is employed as a CILEx trainee lawyer while completing an LLM in human rights at Queen Mary University, London.
On the morning of 18 February 2016, we arrived at the Supreme Court and waited. I remember the day so vividly, the sharp intake of breath and audible gasp from those who were lucky enough to find a space in the crowded courtroom, as the highest court in England and Wales held that ‘the law took the wrong turn’ (R v Jogee; Ruddock v The Queen (Jamaica) [2016] UKSC 8, para 87).
Since 12 March 2014, I have had a vested interest in this particular area of law, when my brother, Alex Henry, was convicted of murder under joint enterprise and sentenced to a mandatory minimum term of 19 years.
It had been a peaceful summer afternoon in August 2013. Alex was out shopping in Ealing Broadway, west London, with three friends: Janhelle Grant-Murray, Younis Tayyib and Cameron Ferguson. Younis left the group to meet a friend near his home, which was situated a few short minutes from the town centre, and the others agreed to meet him outside his address once they had finished shopping. A few minutes after Younis’s departure, Janhelle, having become disillusioned with the prospect of a bargain, also decided to depart the group and proceeded to Younis’s address.
Walking down Younis’ road alone, Janhelle encountered a group of four unknown males - Bourhane Khezihi, Taqui Khezihi, Oledapo Tajani and Leon Thompson - gathered around a car, drinking refreshments in the summer heat. From what was sparked from no more than a look, an air of aggression descended on the group, triggering the swift departure of Janhelle, back down the road and towards the shopping centre once more.
That could, and should, have been the end of the matter, but looking over his shoulder, Janhelle saw he was being followed and, breaking into a run, was pursued down the street. Bypassing Younis, who had arrived at the scene, but realising that there was little he could do but defend himself, he ran into a local Costcutter and retrieved a bottle of wine, only to return a few seconds later brandishing the bottle at his side. In retaliation, Bourhane removed his belt to use as a weapon, if necessary, and the confrontation escalated.
As the aggression continued to spiral, Younis and Oledapo attempted to quell the imminent violence by acting as peacemakers. Younis, in particular, twice persuaded Janhelle to return the bottle back to the Costcutter; however, while his back was turned, he would be followed once more by the rest of the group, prompting a standoff once again.
Meanwhile, Alex and Cameron had finished shopping and had begun walking back up to Younis’s address. Alex, spotting Janhelle with the bottle in his hand circled by an older group of lads, with arms raised and belts in hand, sprinted into the affray.
The violence lasted only 47 seconds, but in that short time frame: Oledapo took the bottle from Janhelle; Taqui lunged at Janhelle; Alex threw a mobile phone at Taqui; Bourhane lashed his belt at Cameron, Younis put Bourhane in a headlock, Taqui punched Janhelle; Cameron fled the scene down Northcote Road; Younis released Bourhane; Bourhane punched Janhelle; Alex punched Bourhan; Alex and Janhelle fled the scene back into the shopping centre; and Younis walked home with his mother, who had left her house having heard the commotion.
What I have not yet mentioned - and what we cannot know precisely - is when Cameron Ferguson puts his hand inside his JD sports bag, takes hold of a knife and, without removing the knife from the bag, stabs two people: Bourhane and Taqui Khezihi. Taqui later died of his injury. The events of August 2013 would put into turn a chain of events which would forever change Alex’s life, and mine.
After the six-week trial at the Central Criminal Court, the Crown’s case was accepted by the jury. In particular, they were sure that ‘friends tell each other everything’, and therefore Alex would have known that Cameron was in possession of a knife during the shopping trip and, consequently, Alex would have known that Cameron might use the knife if any altercations were to arise during the course of the day; moreover, the jury was sure that, in throwing the phone and by his voluntary presence at the scene, Alex intentionally encouraged the use of the knife.
Under the orthodox approach to joint enterprise, also known as accessorial liability, the Crown would need to make the jury sure that the accessory ‘intentionally assisted or encouraged’ the commission of the offence and had ‘knowledge of any existing facts necessary’ for it to be criminal (National Coal Board v Gamble [1959] 1 QB 11). This would mean that the Crown would need to make the jury sure that, in 47 seconds, Alex knew Cameron would stab, with the intention of killing or causing serious injury, rather than might stab.
However, over the last 30 years another term has entered the legal lexis: parasitic accessorial liability (PAL). This type of joint enterprise, as laid down by the Privy Council in Chan Wing-Siu, Wong Kin-Shing and Tse Wai-Ming v The Queen (Hong Kong) [1985] AC 168, arises where a person participates in the commission of crime A, either as an accessory or a principal, and during the course of participating in the joint enterprise to crime A, foresees the possibility that one of the group may go on to commit a further crime, ie, crime B. In circumstances such as these, the person is not only liable for the joint enterprise to commit crime A, but is also liable for crime B, which they foresaw might be committed by a party to the first enterprise.
Therefore, in PAL, a party’s guilt is acquired from the reality they perceive, rather than from the ill feeling they bear. Moreover, the emergence of PAL blurred the lines between the orthodox application and the parasitic application, with some cases containing elements of both types of joint enterprise.
This is what happened in Alex’s case, as while the jury believed that he intentionally encouraged the use of the knife with his voluntary presence at the scene, he was not found to have ‘knowledge of any existing facts necessary’, which is a fundamental requirement in the orthodox application. This is something that we knew could not be supported by the facts of the case, in particular, the spontaneity of the violence and the lack of any verbal encouragement denoting knowledge of what would happen. This anomaly, brought about by the emergence of PAL, is something that we along with JENGbA sought to change, and after six long years of campaigning, JENGbA was successful.
The painful events of 6 August 2013, and the prevailing anxiety, distress and passion which followed, had accumulated until that moment in the Supreme Court and the resultant decision in R v Jogee. Lord Thomas, the then Lord Chief Justice, was one of the five justices who heard the case.
The Supreme Court, in abolishing PAL, held that foresight is only evidence of intent rather than equivalent to it and rather to be guilty of murder the Crown must prove that the defendant ‘intended to assist or encourage’ in the commission of the offence, with ‘knowledge of any existing facts necessary’, which make the offence criminal.
However, this triumph was bittersweet: those who had suffered under this erroneous application of the law would only be afforded an appeal if they could prove that there had been a ‘substantial injustice’ in their case (para 100). The court held that:
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 [above] and in Powell and English [[ 1999] 1 AC 1]. The error identified, of equating foresight with intent to assist rather than 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 by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken (para 100 and obiter dicta).
This ‘substantial injustice’ condition from the cases cited by the Supreme Court implied some form of continuing effect test whereby only those who continue to suffer the effects of the misapplication of the law may be afforded a remedy. However, we had no idea that those comments in obiter would later evolve, in subsequent decisions of the Court of Appeal, to be a higher form of safety test which has proved impossible to pass.
The Court of Appeal’s decision in R v Johnson and others [2016] EWCA Crim 1613, again involving Lord Thomas, would prove to be the last nail in the coffin for any applicant hoping to have their case reviewed under the law: ‘In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference’ (para 21, author’s emphasis)
The effect, in Alex’s case, means that rather than demonstrating that his conviction was unsafe and that he was still suffering the continued effects of the erroneous application of the law, Alex would need to show that he could not have been convicted under the law as it now stands.
This new approach is unsupported by the authorities, and so we submit that the court erred in adopting an approach so lacking in legal foundations. Moreover, the effect of the decision in R v Anwar and others [2016] EWCA Crim 551 has meant that no more evidence is required post-Jogee.
… the same facts which would previously have been used to support the inference of mens rea before the decision in Jogee will equally be used now. What has changed is the articulation of the mens rea and the requirement that to prove (in the case of Jogee) the crime of murder it is not sufficient that D2 foresaw that D1 might intentionally cause grievous bodily harm or kill if the circumstances arose. What is now required is that D2 intended that D1 cause grievous bodily harm or kill if the circumstances arise. Thus, the evidential requirements justifying a decision that there is a case to answer are likely to be the same even if, applying the facts to the different directions in law, the jury might reach a different conclusion (para 22).
This wholly new ‘substantial injustice’ test, as established in Johnson and others above, is one that is unduly high in the extreme and which none can qualify due to this decision in Anwar and others above. If, evidentially, nothing more is required post-Jogee, how can an applicant possibly prove that the change in the law would make a difference? Despite this, we felt confident that Alex would have successful appeal.
In 2015, after his conviction, Alex was diagnosed with autism by leading expert Professor Simon Baron-Cohen of Cambridge University. Alex has always had communication difficulties, which effect the way he perceives other people, interprets emotions and predicts behaviours.
An ability to understand the intentions of others, and predict what they would or might do, is a fundamental premise to joint enterprise, in both the parasitic and orthodox applications of the law. This fresh evidence, we submitted, was capable of belief, was not available at trial, and was highly relevant to his conviction.
On 11 August 2017, Alex’s permission to appeal was refused by the Court of Appeal, again with Lord Thomas presiding, in Grant-Murray and Henry [2017] EWCA Crim 1228. The judgment handed down by Lady Hallett.
There is therefore no basis for contending that if the jury had been directed in accordance with the law as set out in Jogee it would have reached a different conclusion on the evidence before them. There is therefore no ground upon which it can be contended that substantial injustice would arise (para 23).
With regard to the fresh evidence, the court doubted the credibility of the autism diagnosis due, in part, because of my mother’s PhD in psychology (gained ironically to assist her in coping with Alex’s difficulties as a child) meant that she could have coached him in how to act autistic. Moreover, the court criticised trial counsel for not having spotted this ‘invisible disability’ earlier, and not having Alex assessed before trial (paras 47 and 61 respectively). In any case, the court made clear that it disagreed with the leading academic’s evidence concerning the relevance of the diagnosis.
Since the Supreme Court decision in Jogee, none of the 800 men, women and children currently supported by JENGbA have successfully appealed their conviction. Furthermore, the creation of this wholly new and unduly harsh form of safety test, as established in Johnson, cannot be challenged at the Supreme Court for remedy.
The Supreme Court does not have the jurisdiction to hear cases which have not been afforded a full appeal at the Court of Appeal, and the ‘substantial injustice’ test is one that is applied at the permission to appeal stage and must be passed before proceeding to a full appeal.
With no justice to be had from our national courts, our fight now takes hold on the political stage, with a three-hour parliamentary Backbench Business General Debate on joint enterprise on 25 January 2018. The only way to abolish the ‘substantial injustice’ test is for parliament to amend the Criminal Appeal Act 1968 and allow for all misapplications of law, notwithstanding the date of conviction, to be afforded a retrial where the case is unsafe.
The court, in Alex’s case, is functus officio and without any recourse to justice nationally, we move onto the European Court of Human Rights.