Grant-Murray & Anor, R v

A conviction appeal based on a later correction of the law of secondary liability succeeds only if the appellant shows substantial injustice. Where the jury’s necessary findings establish intentional assistance or encouragement with the required knowledge and intent, an earlier direction framed by reference to foresight will not make the conviction unsafe.

Fresh evidence under Criminal Appeal Act 1968, s.23 is admitted only where the interests of justice require it. The court must assess its reliability, the explanation for its absence at trial, and whether it might reasonably have affected the verdict. In trials of children and vulnerable defendants, procedural adaptations must secure effective participation, but an omitted safeguard does not itself establish an unfair trial where the defendant in fact understood, participated and was able to present the defence.

Two groups of renewed applications for leave to appeal were heard together because each raised the effect of R v Jogee [2016] UKSC 8 on convictions for murder based on secondary liability.

Grant-Murray and Henry had been convicted at the Central Criminal Court of murder and wounding. They challenged the joint-enterprise direction, the admission of knife-possession convictions, and the refusal to treat later material about Henry’s autism and a co-accused’s plea as fresh evidence. Henry also sought leave to appeal sentence.

McGill, Andrew Hewitt and Corey Hewitt had been convicted at the Crown Court at Liverpool of murder. They sought lengthy extensions of time to challenge the joint-enterprise direction, their effective participation as young defendants, the mandatory sentence of detention during Her Majesty’s pleasure, and their minimum terms.

The central issues were whether any asserted error caused substantial injustice or rendered the trials unfair or the convictions unsafe.

1. All renewed applications for leave to appeal were refused. The court also refused the required extensions of time in relation to the later applications.

2. Applying R v Jogee [2016] UKSC 8 and R v Johnson and others [2016] EWCA Crim 1613, an out-of-time challenge based on the change in the law required proof of substantial injustice. The directions had required knowledge of the knife and intentional encouragement or assistance. The verdicts necessarily established the applicants’ intentional participation in the armed attacks. A direction conforming to Jogee would not have altered the result.

3. The admission of the applicants’ earlier knife-possession convictions under Criminal Justice Act 2003, s.101(1)(d) was relevant and admissible. The convictions made it more likely that the participants had knowledge of knives and that their words and conduct at the scene had the alleged significance.

4. The court declined to receive the proposed autism evidence under Criminal Appeal Act 1968, s.23. The expert had not initially obtained or analysed the full medical history, there was no persuasive explanation for the failure to pursue medical evidence at trial, and the evidence could not reasonably have affected the jury’s assessment of intent or credibility. The proposed evidence concerning Ferguson’s plea was also not fresh evidence capable of supporting an appeal.

5. The court regretted that the question of seating the young defendants outside the dock had not been considered openly. However, the evidence showed that each applicant had been able to understand the proceedings, instruct lawyers and advance the defence. Security, practical constraints and the actual conduct of the trial meant that no unfairness or unsafe conviction resulted. Ground rules and communication adaptations must be observed, but an intermediary advises the judge and does not control the trial process.

6. The mandatory sentence of detention during Her Majesty’s pleasure was not incompatible with Articles 3 or 5 ECHR on these facts. The minimum terms were individually assessed and proportionate. Continued detention and licence after expiry of the minimum term depend on public protection and the statutory release regime.

7. Freshly instructed advocates must make specific, diligent enquiries of the former legal team, including in fresh-evidence cases, and certify that this has been done. The court stated that it would not entertain an application without that certification.

• Court of Appeal (Criminal Division): Renewed applications for leave to appeal against conviction and sentence were refused.
• Central Criminal Court: Grant-Murray and Henry were convicted of murder and wounding.
• Crown Court at Liverpool: McGill, Andrew Hewitt and Corey Hewitt were convicted of murder and sentenced to detention during Her Majesty’s pleasure.