CS Lewis wrote: ‘We all want progress, but if you’re on the wrong road, progress means doing an about-turn and walking back to the right road. In that case, the man who turns back soonest is the most progressive.’ It took English law 30 years to realise what the Supreme Court in R v Jogee called its ‘wrong turn‘ but the imperative now is the law’s response to those who may have been wrongly convicted.
To be clear, not all, probably not even that many convictions after Chan Wing-Sui, the case in 1985 that disorientated the criminal courts, will result in successful appeals. The Supreme Court put it in these terms:
‘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 [wrong] law… 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… 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.’
At least from the Supreme Court’s point of view, the fact that the law has been wrongly applied, does not of itself give rise to the right of appeal out of time. More is needed, demonstrating, ‘substantial injustice’. This is not defined but it is likely to require an applicant for leave to appeal to be able to demonstrate that the conviction is unsafe and that the Court of Appeal would be likely to, on hearing the case, quash the conviction.
The Criminal Cases Review Commission has said that it ‘seems likely’ that Jogee would have ‘a significant impact’ on its work.
‘The specific nature of the Supreme Court’s judgment means that the decision in Jogee will affect other cases only in certain very specific circumstances. However, given that the judgment potentially affects cases going back a number of years, it may generate a considerable number of applications or re-applications to the Commission.’
The CCRC is currently reviewing around 30 joint enterprise murder convictions and has a number of other such cases waiting for reviews to begin. ‘It may well be that we get other applications from former applicants and from others who have never applied but now think that the decision in Jogee may affect their cases. It is impossible to assess how many cases the Commission may need to consider as a result of the judgment,’ a spokesman says.
It may have been helpful to identify a principled approach to applications – a filter – to assist applicants to either the CCRC or Court of Appeal understand whether their case may pass a minimum criteria. It is reasonably easy to identify, by reference to the judgment in Jogee, a series of key questions.
First, having regard to the facts of the case, were the defendants together responsible for the crime whether as principals or secondary parties. Did the applicant do it or intentionally assist or encourage it?
Second, was there an agreement involving encouragement or assistance between the parties, or of more or less spontaneous joining in a criminal enterprise? It will be necessary to analyse whether the principal and secondary party shared a common criminal purpose, as this may demonstrate the secondary party’s intention to assist or obviate it.
Third, was the jury directed on foresight of the crime as automatic authorisation of it, as opposed to that foresight as simply but often strong evidence of intent to assist or encourage?
Finally, notwithstanding the answers to the above questions, is there a risk of substantial injustice if the case is not reviewed and is it likely the conviction might quashed or substituted?
The clearest example of a case where the re-alignment of the law is unlikely to materially affect its outcome is, ironically, Jogee. In his case the Supreme Court observed that the argument that he ought not to have been convicted of either murder or manslaughter and that his conviction should simply be quashed was “quite unrealistic”. On the evidence and the jury’s verdict he was “unquestionably guilty at least of manslaughter, and there was evidence on which the jury could have found him guilty of murder on a proper direction”.
Professor David Ormerod QC, barrister and Law Commissioner, who, with William Wilson, authored the Criminal Law Review article ‘Simply harsh to fairly simple: Joint Enterprise Reform’, which anticipated the decision in Jogee is working on a sample direction for the judiciary. This is a welcome step and is assured forensic integrity.
There are calls for a Royal Commission from JENGBA (Joint Enterprise Not Guilty By Association) the group that was a prime mover behind the reform of the law in this area and an interested party in the case. Royal Commissions have been in decline in recent years but objectively there is a pressing need for some form of inquiry to restore public confidence. This is likely to become even more acute if in the deluge of applications to the CCRC or Court of Appeal – and in the absence of guidance many lacking merit – deserving cases get lost. The politics of joint enterprise may make an inquiry unlikely but to demonstrate our justice system’s progressiveness it is essential there is a clear demonstration that the law intends to make the necessary about turn.
Simon McKay is a barrister specialising in criminal, human rights and regulatory law