Appeal judges reject joint enterprise appeals
The Court of Appeal this morning ruled that being sentenced to years in prison under the discredited common law doctrine of joint enterprise did not of itself amount to a ‘substantial injustice’. In February, Lord Neuberger in R v Jogee, Lord Neuberger said that the law had taken ‘a wrong turn in 1984’ and that it was ‘the responsibility of this court to put the law right’.
Today the Court of Appeal handed down their decision on the first batch of joint enterprise appeals to be heard since that ruling which will be a bitter disappointment to a campaign for law for reform led by JENGbA – Joint Enterprise Not Guilty by Association. Under joint enterprise, scores of individuals have been convicted of serious crimes on the basis they ‘could’ have foreseen the actual perpetrator committing the offence. According to of the Centre for Criminal Appeals, the Jogee ruling ‘presented a lifeline to hundreds of “secondary offenders” convicted under the doctrine’ currently in prison, including some serving the same mandatory life sentences for murder as the actual killer.
‘However, today’s ruling confirmed the enormous challenge now faced by joint enterprise prisoners and their families,’ the group said. ‘Most will now be pinning their hopes on a referral to the Court of Appeal from the chronically underfunded and overburdened Criminal Cases Review Commission (CCRC).’
Court erupts in tears and shouts of injustice. @JENGbA erupts in shouts of shame. “the fight is not over” …
— CALA (@CrimApLawAssoc) October 31, 2016
‘The Court of Appeal’s disappointing judgement will make it even harder for individuals and families whose lives have been ruined by a faulty, now-discredited interpretation of the law to achieve justice,’ commented Suzanne Gower, the CCA’s managing director. ‘Shunning the commonsense view that being sentenced to years in prison under a faulty, now-discredited law amounts to a “substantial injustice”.’
‘For a prisoner to win their case, comprehensive investigation will be needed to gather evidence that persuades the Court a “substantial injustice” has occurred. But legal aid cuts mean many prisoners won’t have a lawyer to help them, and the underfunded CCRC lacks the resources to do it. Put simply, today’s ruling combined with our declining appeals system will prevent injustices from being corrected.’
Suzanne Gower, Centre for Criminal Appeals
Matt Stanbury, a barrister at Garden Court North, called the ruling ‘something of a mixed bag’.’ In setting out the principles, the Court did confirm that the passage of time is irrelevant to the question of whether there has been a substantial injustice in a historical joint enterprise case,’ he said. ‘It also confirmed, usefully, that the trial judge’s opinion as to the basis for the conviction is irrelevant.’
However Stanbury went on to say that the application of the principles to some of the individual appeals was ‘troubling’. In one case (Burton and Terrelonge) the court seemed ‘far too ready to infer’ that the accused had knowledge of the knife used to carry out the killing and that they therefore had the necessary intent for murder. ‘Indeed, the Court even went as far as to say that post-Jogee it may be easier for the prosecution to prove murder in some cases, as knowledge of the precise weapon is no longer required. Overall, it is dispiriting to reflect that the change in the law through Jogee seems likely to have minimal impact on those already convicted.’
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award