Quinn & Anor, R. v

A later change in the law does not remove the need for exceptional leave merely because an appellant filed timely grounds on other matters. The appellant must demonstrate substantial injustice.

An erroneous joint-enterprise direction based on foresight will not justify intervention where the evidence and necessary jury findings establish intentional assistance, encouragement or support of an assault intended to cause at least grievous bodily harm. A charge under section 5 of the Domestic Violence Crime and Victims Act 2004 should remain available where it is a proper alternative and the evidence could establish the statutory elements. Post-conviction admissions by a co-offender require especially careful credibility assessment.

Quinn and Casterton were convicted at Truro Crown Court of the murder of Terry Oldham and were each sentenced to life imprisonment. The prosecution could not identify the person who inflicted the fatal injury, but alleged that both appellants participated in the killing as principals or secondary parties after a sustained course of abuse of the deceased.

They sought to add grounds following R v Jogee and Ruddock [2016] UKSC 8. They also challenged the retention of alternative counts under section 5 of the Domestic Violence Crime and Victims Act 2004, the refusal of a no-case submission, and directions and comments on their failure to give evidence. Both relied on a later account by their co-defendant, Mallen, claiming sole responsibility for the fatal assault.

The central issues were whether exceptional leave and substantial injustice were established, whether the trial rulings and directions rendered the convictions unsafe, and whether Mallen's account should be received as fresh evidence.

1. The applications for leave to appeal against conviction were refused. A ground based on a subsequent change in law required exceptional leave, even though the appellants' original applications had been filed in time and remained undetermined. Following R v Jogee and Ruddock [2016] UKSC 8, exceptional leave depended on demonstrating substantial injustice.

2. The trial's secondary-liability direction was erroneous because it treated foresight as sufficient mens rea for murder. That error made no difference. The jury must have found that each appellant intentionally assisted, encouraged or supported the fatal assault and foresaw an intention to kill or cause really serious injury. On the evidence of the prolonged and exceptionally violent attack, any person present and lending support must have intended at least grievous bodily harm. Jogee-compliant directions would therefore have produced the same verdicts.

3. The judge rightly left the section 5 offence under the Domestic Violence Crime and Victims Act 2004 to the jury. It was a proper alternative to murder and manslaughter, and there was ample evidence that the appellants ignored a clear risk of serious physical harm and allowed the deceased to die without medical assistance. The statutory provisions concerning adverse inferences did not cause unfairness; the directions retained sufficient safeguards.

4. Mallen's post-conviction account was not credible. A court must exercise particular caution before receiving a co-offender's later confession, especially where the witness has allowed the trial to proceed, has lied repeatedly, and may gain by exculpating close associates. The court declined to receive the evidence under section 23 of the Criminal Appeal Act 1968.

5. Section 6(4) of the Domestic Violence Crime and Victims Act 2004 postponed consideration of Casterton's no-case submission until the close of all the evidence. There was then sufficient evidence of intentional encouragement or assistance, with the necessary intent, and of a cover-up. The judge's further comments on the defendants' silence were reasonable and, in a fair summing up, were not unduly prejudicial.

• Court of Appeal (Criminal Division): Refused the applications for exceptional leave to appeal against conviction and declined to receive the proposed fresh evidence.
• Truro Crown Court: On 16 November 2015, convicted Quinn and Casterton of murder and imposed life sentences with minimum terms of 24 years and 22 years respectively.