R v Jogee  UKSC 8 created the possibility of a large number of appeals against convictions for homicide based upon parasitic accessorial liability. In R v Johnson  EWCA Crim 1613, in the cases of 13 defendants from six different cases, convicted, it was argued, using the now disapproved doctrine in Chan Wing-Siu v The Queen  AC 168, the Court of Appeal dismissed their appeals or refused leave to appeal out of time. The message for practitioners and the public is clear: the decision in R v Jogee will not be leading to the flood of successful appeals that some had hoped it might.
It would be impossible in an article of this length to go through each of the appeals considered in detail. However, some similarities in each case can be determined. In each case the Judge had directed the jury, correctly on the authorities at the time, that foresight of the possibility of his co-accused inflicting at least grievous bodily harm, where applicable with a weapon that the defendant knew about, was sufficient to convict for murder. It was not in dispute that those directions were not correct, the test now being whether the defendant intended, at least conditionally, for the co-accused to unlawfully inflict at least grievous bodily harm. In some cases, such as the appeal of Miah, Miah, Hussain and Khan, that the latter was not required was something the jury were specifically directed upon.
Despite those incorrect directions, the court in each case found, by comparing the prosecution case to the defence case, that the question of intention and foresight was not the material issue which had in fact been involved in the jury’s decision. A clear example can be found in the reasoning on the appeals of Johnson, Johnson, Garwood and Green:
“Although the prosecution referred to the law on joint enterprise as it then stood, pre-Jogee, namely that the prosecution only had to prove that each of them knew Green had a knife and realised he “might – not would – use it intentionally to cause really serious injury”, their case was that each of the accused in fact planned and participated in an attack knowing a knife would be used with intent to inflict at least really serious injury”.
It could be inferred from the jury’s verdicts that all defendants had been involved in a joint attack where the common purpose was to inflict really serious bodily injury on the victim of the kind that caused his death. Their verdicts would have been no different post Jogee, so there was no injustice, let alone substantial injustice.
Similarly in the appeals of Burton and Terrelonge, a case where a number of defendant’s had been involved in inflicting violence on the deceased with fists, feet and a bottle, and the prosecution could not identify who it was that had wielded the knife, the court concluded:
“The judge’s directions may not have been in accordance with Jogee but, on the jury’s findings, this court can safely draw the conclusion that the applicants had the necessary conditional intent (at the very least) that the knife would be used with intent to kill or cause grevious bodily harm”.
The question is, how? How could the Court of Appeal know that, the jury being satisfied that Burton and Terrelonge had known a knife was present and that it might be used with intent to cause grevious bodily harm, had also intended that it be used. If that is a distinction with any substance, which one would assume it must be based upon the decision in R v Jogee, then no one can know upon what basis the jury convicted. The court’s reasoning appears to rest on the premise that in convicting a defendant the jury wholly accepted the prosecution case and/or wholly rejected the defendant’s. The court concluded that despite a specific route to verdict being left open to them, it could safely be assumed that the jury had not taken it.
The Court of Appeal’s reasoning was arguably at its harshest in the appeal of Hore. It was the prosecution case that Hore had lured the deceased to a meeting, where he was stabbed by others in revenge for a burglary of cannabis that Hore had committed on the deceased’s instruction. Hore’s case was that he never intended the killing of the deceased, although he admitted in evidence that he realised that the deceased could have been robbed, badly hurt or killed once he realised weapons were present. He then attempted to stop the deceased attending.
In Hore’s case the defence submitted that Jogee was of particular relevance to his case because the question of intent was never posed for the jury. The difference between joint enterprise on foresight and joint enterprise on intention was, on the facts, a stark one. A different direction could have made a fundamental difference to the jury’s verdict.
The Court of Appeal rejected that:
“By its verdict, the jury clearly rejected [Hore’s] defence both that he was not a party to an enterprise where what was intended at least was grevious bodily harm to the deceased and that he withdrew from the plan”.
The question can again be asked how the Court of Appeal could draw that conclusion. The jury clearly found that Hore foresaw the use of knives to cause at least grevious bodily harm, unsurprisingly given that he virtually admitted that in evidence, but given that there was evidence of a friendly relationship between Hore and the deceased, and that he did in fact tell the deceased not to come to the meeting on the phone, the question of intention rather than foresight was potentially an important one. A finding that Hore did not withdraw from any joint enterprise did not necessarily equate to a finding that he had the requisite intention.
The final point of note is that the Court of Appeal clearly distinguished between the cases before it that had been appealed in time, and those where exceptional leave for applications out of time was sort. In the former cases, the question was whether the conviction was unsafe, but in the latter it was whether there would be substantial injustice were leave not granted. Although where the threshold to grant exceptional leave to appeal is reached, it is likely to be difficult to conclude that the conviction remains safe, the court did not say the reverse. In fact, it stated that the question of substantial injustice requires taking into account wider considerations such as the public interest in legal certainty and finality. In Hall’s appeal the court had regard to the fact that:
“This was not the case of a man who had committed no crime; he had joined in an attack and engaged in inflicting serious violence. It is plain on the facts that he would have been convicted of manslaughter had he not been convicted of murder”.
This appears to mean that a conviction can be unsafe, but that does not amount to substantial injustice. In particular the reasoning on Hall suggests that the fact that a defendant is guilty of something means that his unsafe conviction for a significantly more serious offence does not amount to substantial injustice.
The case of R v Johnson sends a strong message on the likely outcome of any appeal relying upon Jogee, especially where brought out of time. It is unlikely however, to lay to rest the continued debate on the severity of ‘joint enterprise’ as applied to homicide.
3 November 2016
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