Joint enterprise: reviewing the first successful post-Jogee appeal

motive - since both groups were strangers - Alex was swiftly charged with murder. Alex’s story mirrors many of those supported by Joint Enterprise Not Guilty by Association (JENGbA), a grassroots campaign to reform the law ran by the families of those affected. Many cases are born of spontaneous moments of violence, young men, and inferences drawn from association.

Following the decision in Jogee above, we were hopeful that Alex’s conviction, which was based upon an erroneous interpretation of law, may be quashed at the Court of Appeal. However, despite the Supreme Court’s declaration that the law had taken a wrong turn, the error now corrected would have no automatic retrospective effect on the hundreds if not thousands of convictions. Instead, those who request an appeal out of time would need to demonstrate that ‘substantial injustice’ would otherwise be done if an appeal were not granted (para 100).

This ‘substantial injustice’ test later evolved in the case of R v Johnson and others [2016] EWCA Crim 1613, and although it is not exactly clear appears to require the applicant to prove that the change in the law categorically would have made a difference. Comparatively, those whose appeals are not out of time, ie, who were convicted within the 28 days immediately preceding Jogee, only need to show that their conviction was unsafe. This safety test, which is laid out in the Criminal Appeal Act 1968, allows the court to quash a conviction where the misapplication of law might reasonably have made a difference rather than would have made a difference. I would say that a test which requires that the applicant prove the change in the law would have made a difference to the jury’s verdict - as opposed to might have made a difference - is unduly onerous and arguably, in theory, impossible to pass.

In R v Anwar and others [2016] EWCA Crim 551, which concerned an appeal by the Crown following a successful no case to answer submission at trial, the court held ‘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’ (para 22). Therefore, the trial judge was wrong to accept a no case to answer submission due to lack of evidence, as where there is evidence of foresight, equally there is evidence of intent.

Consequently, the effect of the combined decision in Johnson above and Anwar above has rendered the test, in my opinion, an impossible one, since if nothing more evidentially is required post-Jogee, how can an applicant prove that the change in the law categorically would have made a difference?

This was a question I puzzled over following the successful appeal in the case of R v Crilly [2018] EWCA Crim 168, 30 January 2018. To preserve the integrity of an impending trial, his judgment was embargoed for months following the decision and was eagerly awaited by all with an interest in criminal law and justice. The decision could only assist in lowering the appeal barrier or at least provide further clarity on what is required to surpass it. Summarising the law, the court held:

We derive the following principles from the judgments in Jogee and in Johnson as relevant to the applications. First, to qualify for the grant of exceptional leave the applicant must establish a ‘substantial injustice’ would be caused if it was denied. The fact that there has been a change in the law is not in itself suficient where a person was properly convicted on the law as it stood at the time of trial, as here. Second, the threshold for demonstrating a substantial injustice is a high one. Third, in determining whether that high threshold has been met the court will have regard to the strength of the case advanced, that a change in the law would in fact have made a difference (para 38).

The phrase ‘would in fact have made a difference’ can only mean a difference to the jury’s verdict, ie, whether D would have been found not guilty. However, when applying the law, it would appear that a substantially different test had been applied. In particular, the court held:

We are satisfied we should grant exceptional leave. The case against the applicant was to all intents and purposes a case about his foresight. Foresight may be evidence of intent but it does not equate to intent. The evidence against him was not so strong that we can safely and fairly infer the jury would have found the requisite intent to cause really serious bodily harm had the issue been left to them by the judge (para 42).

Here, the test handed down by Lady Justice Hallett was not whether D would have been found not guilty, but rather whether the court could ‘safely and fairly infer the jury would have found the requisite intent’, ie, whether D would have been found guilty. It remains unclear whether this application of the test represents the law as it has always been postJohnson, or whether this was an intentional departure or an accident. In any case, its application gave rise to a renewed hope that those who were convicted would face a fairer appeal, that was until the recent case of Laura Mitchell.

Laura Mitchell’s case

This case was used as an example of grievous injustice when I was taught about joint enterprise during my undergrad law degree course at Brunel University. Sparked by a dispute over a taxi, an attack upon the victims ensued, leading to the murder of one and the imprisonment of several others, including Laura. But what makes Laura’s case such an injustice, despite

her initial physical participation in the attack, was the fact that during a lull in the violence, she withdrew from the scene to go in search of her shoes in a nearby car park. Her co-defendants had also left the scene; however, unbeknown to Laura they travelled to a local address, retrieved weapons and returned to resume the attack ultimately murdering the victim.

In her initial appeal, the court held that both attacks, although separate in time and space, were in fact one single joint enterprise, and since Laura had not effectively withdrawn (which in law requires the withdrawal be communicated to the principal and unequivocal) she was still part of the joint enterprise when the fatal blow was struck (R v Mitchell and Ballantyne [2008] EWCA Crim 2552). Moreover, because she could foresee that another blow might go on to cause at least serious bodily harm, she was liable under PAL in respect of it. Her appeal was dismissed.

In March 2018, the Criminal Case Review Commission (CCRC) referred her case back to the Court of Appeal.² The CCRC believed that there was a real possibility that the court would find that it would be a substantial injustice to uphold the conviction. Not only was this the first referral by the CCRC on the issue, it also represented the first opportunity that if the substantial injustice test failed, this could be challenged in the Supreme Court. The reason is that the UK Supreme Court (UKSC) does not have jurisdiction to hear cases which have not been afforded a full appeal at the Court of Appeal, and since the substantial injustice test is one which is applied when seeking permission to appeal, once failed, the applicant is outside its jurisdiction.

However, when the CCRC refers a case, procedurally it is treated as already having been granted permission to appeal. Therefore, although the court will still apply the substantial injustice test, once failed, the case is treated as having had a full appeal and will be within the Supreme Court’s jurisdiction (see Criminal Appeal Act 1995 s9(2)).

On the afternoon of 14 November 2018, I sat with the Mitchell family and others from JENGbA while we nervously waited for the judgment to be handed down. We had started the morning believing that the appeal would be successful. The evidence against Laura was not so strong that we could safely and fairly infer the jury would have found the requisite intent to cause really serious bodily harm: the Crilly formulation at least must be passed.

However, sitting in the court that afternoon, we all anticipated a dismissal. Despite Tim Maloney QC’s skill, seniority and experience in joint enterprise appeals (having acted for Crilly at the Court of Appeal and for JENGbA at the UKSC), Hallett LJ was unresponsive (with the exception of an intermittent eye roll). But at least we had one hope: once rejected, Laura may obtain a certificate certifying a question of law and, ultimately, secure a change of law at the UKSC Court for everyone.

We should have known that the Court of Appeal, gatekeeper of the Supreme Court and marker of its own homework, would not let that happen. Rejecting the appeal, the court held that not only is there no substantial injustice, there is no injustice at all, ie, the conviction is safe. The impact of this would render the opportunity to challenge the substantial in justice test at the Supreme Court an unlikely prospect. The test is arguably irrelevant for Laura since, notwithstanding it, she also failed the safety test.

I would question here how the court could have safely and fairly inferred that the jury would have found that Laura intended to encourage the infliction of serious bodily harm and knew that it would be inflicted. Violent affrays - as terrifying as they are - more often than not do not lead to the infliction of serious harm. And where a fatality is caused, if the cause of death is a punch or kick, juries have often convicted the participant for the lesser crime of manslaughter rather than murder. The evidence against Laura was not so strong that the court should have drawn an inference of intent, and I wonder whether guarding the Supreme Court gate took precedence over the covenants of honesty it owes to us.

Taking our fight to the ECtHR

Despite that defeat, JENGbA will not stop fighting for justice. My brother’s permission to appeal was refused in August 2017, and with no recourse to justice to be had nationally our fight now takes hold on the European stage (R v GrantMurray and Henry [2017] EWCA Crim 1228). An application to the European Court of Human Rights was recently submitted by Felicity Gerry QC. She was instructed by Dean Kingham, Antonia McMonagle and Yasmin Karabasic of Swain and Co, who have worked tirelessly pro bono. The impenetrable bar which is the substantial injustice test arguably violates article 6(1) of the European Convention on Human Rights by restricting effective access to court (Omar v France App No 43/1997/827/1033, 29 July 1998).