Johnson & Ors, R. v (Rev 1)

A pre-[2016] UKSC 8 direction which treated foresight as sufficient for secondary liability does not, without more, render a conviction unsafe. Foresight remains evidence from which an intention to encourage or assist may be inferred, including conditional intent within an agreed plan.

For an in-time appeal, the question under the Criminal Appeal Act 1968 is whether the conviction is unsafe. For an out-of-time appeal based only on a later correction of the law, exceptional leave requires a substantial injustice. The central consideration is whether the corrected law could realistically have changed the verdict. Legal certainty and finality remain important, but the passage of time is immaterial if a substantial injustice is established.

This was a consolidated judgment on unrelated appeals and applications arising from convictions, principally for murder, obtained before R v Jogee, Ruddock v The Queen [2016] UKSC 8. The applicants contended that their jury directions on joint enterprise reflected the former foresight-based law and that their convictions were consequently unsafe.

The court considered appeals brought in time, applications for exceptional leave to appeal out of time, and applications to add Jogee grounds to existing appeals. It also determined separate complaints about jury directions, the conduct of the prosecution case, evidential rulings and sentencing credit for time spent on remand.

The common issue was whether the corrected law of secondary participation could have made a difference to each verdict and, where required, whether refusal of leave would cause a substantial injustice.

1. Most appeals and applications were dismissed or refused. The court held that the former law of parasitic accessory liability, derived from Chan Wing-Siu v The Queen [1985] AC 168 and R v Powell, R v English [1999] 1 AC 1, had been corrected by R v Jogee, Ruddock v The Queen [2016] UKSC 8. Secondary liability depends on intentional encouragement or assistance. Foresight is evidence of that intention, rather than a substitute for it.

2. For appeals brought within time, the court applied section 2 of the Criminal Appeal Act 1968. A legal misdirection does not itself establish that a conviction is unsafe. The court must determine whether the error concerned a real issue and whether the jury’s necessary factual findings nevertheless establish guilt under the corrected law.

3. For late applications, a change in the law alone does not justify exceptional leave. The applicant must show a substantial injustice, a high threshold. The principal question is whether the corrected law could in fact have changed the outcome. The court may consider other criminal conduct, but not the time elapsed. It must assess the case by reference to the evidence before the jury and the verdict, rather than the sentencing judge’s observations.

4. The court held that the verdicts in the individual cases disclosed agreed and intentional participation in planned serious violence, or liability as a principal or under ordinary accessory principles. Knowledge that a weapon would or might be deployed was, on the facts found, powerful evidence of the required conditional intent. In Hall’s case, the evidence permitted an inference that he intentionally supported the serious violence if the occasion arose; in any event he would have been guilty of manslaughter. None of the applicants demonstrated that a compliant Jogee direction would have altered the verdict.

5. A developing prosecution case does not require discharge of a jury if the accused can still receive a fair trial and has sufficient notice of the case to meet. A challenge based on perversity succeeds only if no reasonable jury properly applying its mind to the evidence could have reached the verdict.

6. The court allowed the relevant sentence appeals only to direct that 308 days spent on remand should count towards the applicable minimum terms.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 1613, determined consolidated appeals and applications concerning the effect of Jogee on earlier convictions.
• Central Criminal Court: Convicted Lewis Johnson, Asher Johnson, Reece Garwood and Jerome Green of murder in July 2013.
• Central Criminal Court: Convicted Burton and Terrelonge of murder in April 2015.
• Crown Court at Woolwich: Convicted Moises of wounding with intent and possessing a bladed article in February 2016.
• Crown Court at Liverpool: Convicted Hore of murder in June 2015.
• Luton Crown Court: Convicted Javed Miah, Rubel Miah, Mohammed Hussain and Fahim Khan of murder in September 2014.
• Bradford Crown Court: Convicted Hall of murder and violent disorder in September 2007.