Mark Newby from QS Jordans writes on the implications of the Supreme Court Decision in R v Jogee and what is likely to happen next.
Today the Supreme Court rectified a major injustice which has led to many people arguably being wrongfully convicted based upon the law of joint enterprise.
The decision in R v Jogee https://www.supremecourt.uk/cases/docs/uksc-2015-0015-judgment.pdf confronts a major issue which has faced those representing individuals accused of murder on the basis that a co-accused took an act capable of supporting a finding of murder which the accused had not themselves contemplated. So for example if 2 accused set out to commit a robbery, and in the course of that one of them commits another offence such as attacking the victim, the second person is deemed guilty of this attack if he had foreseen the possibility that the first person might act as he did. It was therefore enough to realise that someone else might commit a crime, and the prosecution did not have to prove that the second person intended that crime would be committed. There was a huge difference meaning a lower test for one person as against the person who actually committed the offence.
The Supreme Court has now held that mere foresight of an accomplice’s intention is not enough to prove guilt. The Court held that the 1984 Judgement was in error, and that the law has taken a “wrong turn” ever since. It is the intention to commit the crime that is determinative.
That does not mean the court cannot consider the accused intention or in fact infer that intention but it cannot be diverted into an artificial assessment of guilt on the basis that the accused may or should have concluded that the offence could be committed.
The Court has been quick to sign a warning note however in an attempt to restrict any fear that the floodgates will open to a frenzy of appeals – para 100 of the Judgement says:
100. 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 and in Powell and English. 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. This principle has been consistently applied for many years. Nor is refusal of leave limited to cases where the defendant could, if the true position in law had been appreciated, have been charged with a different offence. An example is Ramsden  Crim LR 547, where a defendant who had been convicted of dangerous driving, before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence, was refused leave to appeal out of time after that latter decision had been published. The court observed that alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. Likewise in Mitchell (1977) 65 Cr App R 185, 189, Geoffrey Lane LJ re-stated the principle thus:
“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”
For more recent statements of the same rule see Hawkins  1 Cr App R 234 (Lord Bingham CJ) and Cottrell and Fletcher  EWCA Crim 2016;  1 WLR 3262 (Sir Igor Judge P) together with the cases reviewed in R v R  EWCA Crim 1974;  1 Cr App R 150. As Cottrell and Fletcher decides, the same principles must govern the decision of the Criminal Cases Review Commission if it is asked to consider referring a conviction to the Court of Appeal: see in particular para 58.
After the well deserved euphoria over this outcome had died down we need to look to what the Court of Appeal Criminal Division and the CCRC is actually going to do. We should expect that the Court may be less than expansive in its approach to receiving these cases. It seems almost inevitable that we should expect a series of these cases to be placed before a Group Court in the Court of Appeal where the senior members of the Court will no doubt give a lead on how the Court of Appeal will approach the issues.
Equally this will involved the Criminal Cases Review Commission as many of the cases may have already been to unsuccessful appeal. The commission will have to determine which cases should be referred and grapple with the issues in the case together with the question of change in the law and the likely reception by the Court.
It clearly would be undesirable in view of the weight of public and parliamentary opinion if the Court were to unduly limit the prospects of overturning what on a number of cases will be plainly wrongful convictions. Overturning itself may of course not necessarily lead to an appellant walking free. There will be the question of whether an alternative finding such as manslaughter is appropriate or indeed whether the Crown would seek a retrial based on the particular facts of a given case.
As for those who find themselves in the now fortunate position to be released they should expect a difficult return to their lives with no state apology or financial support.
Today has been a great day for justice but how long lasting that justice is will be determined upon how the Court of Appeal and CCRC respond to the issues.