The CCA’s Approach
- It is for the applicant for exceptional leave to appeal out of time to demonstrate that a substantial injustice would be done. This is a high threshold. It is not enough to show that the law has now, following Jogee, been declared to have been mistaken.
- The CCA 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.
- This will involve an examination of the evidence before the jury (the prosecution case and the defence case) and an analysis of the legal directions to the jury (route to verdict), and the findings of fact that would have been essential to reach such a verdict, having regard to those directions.
- The CCA will not take into account the observations of the judge when sentencing in order to determine the factual basis for the conviction.
- The relevant question is: “Is there is a sufficiently strong case that the defendant would not have been convicted of murder if the jury had been directed on the basis of the law as set out in Jogee?”
- If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago.
- Where one defendant has appealed on Jogee grounds in time and a co-defendant (who did not) then seeks to appeal on similar grounds out of time, the potential substantial injustice as between defendants is likely to require that a co-defendant who sought leave should be permitted to argue his appeal.
- If exceptional leave is granted, the court will then, and only then, consider the question as to whether in the light of the direction given to the jury the conviction was unsafe. However, if the high threshold required to justify exceptional leave to appeal is reached, it is likely to be difficult to conclude that the conviction remained safe.
Submissions of No Case to Answer
- Following Jogee, a secondary’s foresight that the principal might intentionally cause really serious harm or death is no longer sufficient to establish the secondary’s guilty state of mind.
- However, that the secondary had that foresight is evidence from which the jury can (still) infer that the secondary’s intention was that the principal would intentionally cause really serious harm or death (including a conditional intention i.e. ‘should the need arise’).
- Therefore the same facts that would previously have been used to support the inference of mens rea before the decision in Jogee will equally be used now, although the jury directions will now be tailored to answering a different final question as regards the secondary’s intention that the principal would intentionally do (rather than his foresight of what the principal might intentionally do).
- See R v Anwar and others  EWCA Crim 551 at §20-22 where Sir Brian Leveson P observed: “Suffice to say, for our part, we find it difficult to foresee circumstances in which there might have been a case to answer under the law before R v Jogee but, because of the way in which the law is now articulated, there no longer is. …..
Knowledge of Weapon/s
- Evidence that the applicant had knowledge that a particular weapon was carried by the principal will now be evidence going to the jury’s assessment of the defendant’s intention.
- If the pre-Jogee jury directions were such the jury must have found that an applicant had knowledge of a weapon that is very likely to be treated by the CCA as evidence from which there is (/would have been) a strong inference of the necessary post-Jogee intention on the applicant’s part (including a conditional intention – ‘should the need arise’).
- Many of the applicants in R v Johnson and others  EWCA Crim 1613 had been convicted of murder in circumstances where one of the matters of which the jury must have been sure was knowledge of a weapon. The CCA observed that, since knowledge of the precise weapon is no longer required, the prosecution case may in fact be stronger post-Jogee.
Guilty of other less serious criminal conduct
- The CCA will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct.
- Even when it is plain on the facts that an applicant would have been convicted of manslaughter had he not been convicted of murder, it is still for the applicant to show a sufficiently strong case that the defendant would not have been convicted of murder if the law had been explained to the jury as set out in Jogee.
- An applicant is unlikely to show that where, on the facts, it would have been “open to the jury to infer that he had the necessary conditional intent now required”.
- If the underlying crime was not involving intended violence or use of force (i.e. one where the inference of participation with an intention to cause really serious harm is not strong), it will be easier to demonstrate substantial injustice. Examples of such convictions for murder, and therefore examples of where it will be easy to demonstrate substantial injustice, are likely to be rare indeed.