R v Johnson & Others

Consideration of the principles that apply to appealing based on the decision in R v Jogee [2016] UKSC 8

The Court of Appeal (the Court) considered the impact of the Supreme Court decision in R v Jogee, Ruddock v the Queen [2016] UKSC 8 (Jogee) upon the convictions of thirteen men in six separate cases.

The Court restated the principle of joint enterprise as laid down in Jogee, namely that the mental element for secondary liability is intention to assist or encourage the crime, and foresight of what the principal may do does not amount to intent to assist, but constitutes evidence from which (together with any other relevant evidence) intent could be inferred.

Before ruling on each individual case the Court reiterated their approach to Jogee appeals, both in and out of time.

In respect of appeals brought within time, the Court confirmed that the test remains the safety of the conviction and therefore a misdirection of law may not undermine the safety of a conviction for the purposes of s.2(1) of the Criminal Appeal Act 1968. The fact that the trial judge correctly directed the jury in accordance with the then prevailing law, which has subsequently been ruled incorrect, does not automatically render a verdict unsafe.

With regard to appeals that are out of time, the Court made clear there is an additional hurdle in that there must be ‘substantial injustice'. The Court was clear that it would not grant leave simply because the law previously applied had now been declared mistaken. In determining whether this high threshold had been met, the Court should primarily have regard to the strength of the case advanced that the change in the law would in fact have made a difference. Although, the Court noted, a substantial injustice remains a substantial injustice even if a lot of time has passed.

Held:

The Court ruled on the various appeals. Some of the appeals were brought within time, and some out of time, and this dictated which test the Court applied to each case. The Court applied all of the principles set out above, and the Court conducted a detailed review of the Jury's findings of fact in each case. The appeals and applications for leave to appeal were all dismissed.