Jackson, R v

For secondary participation in murder, foresight may evidence intention but cannot replace proof that the secondary party intended to assist or encourage the principal to kill or cause really serious injury. An out-of-time appeal relying on the correction of historic joint-enterprise law requires exceptional leave and a substantial injustice. The applicant must show that the corrected law might actually have altered the verdict. Where the jury were required to find intention and participation, assistance or encouragement, an additional direction concerning the possible use of a weapon does not create such an injustice. The later correction of the law therefore gives no basis to reopen the conviction.

In January 2012, the applicant was convicted at the Crown Court at Sheffield of murder and conspiracy to pervert the course of justice. He received life imprisonment with a minimum term of 29 years, later reduced to 25 years on an appeal against sentence. He did not then appeal against conviction.

Nearly six years later, he sought an extension of time and leave to appeal his murder conviction. He relied on the joint-enterprise principles restated in R v Jogee [2016] UKSC 8. The single judge refused the application, which was renewed before the full court. The central issue was whether the earlier jury directions disclosed an error capable of causing substantial injustice.

1. The renewed application was refused. The applicant had no arguable basis for exceptional leave to appeal against conviction out of time.

2. R v Jogee [2016] UKSC 8 corrected the former law of parasitic accessory liability. Foresight of what the principal might do can be evidence of the necessary intention, but it is not itself the mental test for secondary participation in murder. The secondary party must intend to assist the principal to kill or cause really serious injury.

3. Where a conviction was obtained under the former law, exceptional leave is available only if refusal would otherwise cause substantial injustice. The applicant bears a high burden. Applying Johnson [2016] EWCA Crim. 1613, the court will ordinarily focus on whether the change in law could in fact have made a difference to the verdict.

4. The trial judge repeatedly required the jury to consider each defendant separately and to be sure that the defendant intended death or really serious injury and took part by assisting or encouraging the attack. The additional direction about the possible use of a heavy weapon arose only after that threshold had been met. The verdict therefore necessarily established the intention required by R v Jogee [2016] UKSC 8. Questions of foresight of a particular weapon could not assist the applicant and, on the facts, would only have weakened his case.

5. The applicant's presence at the time of death was not a legal requirement of guilt. His challenges concerning motive and the sufficiency of the evidence were matters resolved by the jury. There was no basis to conclude that a properly directed jury would have reached a different verdict.

• Court of Appeal (Criminal Division) — The single judge refused permission. On renewal, the full court refused the application for an extension of time and leave to appeal against conviction: [2019] EWCA Crim 1461.

• Earlier sentence appeal — The applicant's minimum term for murder was reduced from 29 years to 25 years. No citation is stated in the judgment.

• Crown Court at Sheffield — In January 2012, the applicant was convicted of murder and conspiracy to pervert the course of justice. He was acquitted of conspiracy to supply a class A controlled drug.