R v T'Shai Ennis

An out-of-time appeal based on the restatement of joint-enterprise law requires proof of substantial injustice; the change in law creates no automatic right of appeal. The court considers whether the corrected legal approach could have affected the conviction, together with relevant circumstances such as other criminal conduct. Fresh expert evidence must be assessed against the issues at trial and its likely impact. A later diagnosis alone is insufficient. Rap material may be admissible under Criminal Justice Act 2003 section 98(a) where its timing and features give it specific relevance to knowledge or planning. Directions on silence and circumstantial evidence remain fact-sensitive.

The applicant was convicted of murder and wounding with intent at the Central Criminal Court in 2015 and received a life sentence with a minimum term of 20 years. He renewed an application, previously refused by a single judge, for an extension of approximately 2,157 days to seek leave to appeal against conviction. He also sought to adduce expert and contextual material as fresh evidence under the Criminal Appeal Act 1968. The grounds concerned joint enterprise following R v Jogee [2016] UKSC 8, rap and bandana evidence, silence, judicial comment, circumstantial evidence and alleged cognitive disabilities. The central questions were whether any ground was arguable and whether the fresh evidence could afford a ground for allowing an appeal.

1. Disposition. The renewed application for an extension of time was refused. None of the grounds was arguable, and no useful purpose would have been served by extending time when an appeal had no prospect of success.
2. Joint enterprise. The trial directions were sufficient and correct under the law applicable at trial. Following the restatement in R v Jogee [2016] UKSC 8, an applicant must show substantial injustice before an out-of-time appeal can proceed. The threshold is high. The court considers the strength of the case that the change in law would have made a difference, together with other relevant matters, including guilt of other, less serious criminal conduct, as reflected in R v Johnson [2016] EWCA Crim 1613. This was a planned knife attack, not a case dependent on foresight of an unexpected escalation. The directions required proof that the defendants knew a knife was being taken to the scene and shared the necessary intent. The change effected by R v Jogee would therefore have made no difference.
3. Fresh evidence. The expert reports were capable of belief and, in principle, admissible, but the decisive question was whether they might afford a ground for allowing the appeal. The wider report on joint enterprise, silence, rap or drill music and race was unlikely to have been admissible in full. Academic articles did not constitute fresh evidence. A subsequent diagnosis does not itself establish an unsafe conviction; the court must identify the trial issues to which the evidence relates and assess its likely effect.
4. Other grounds. The rap video and bandanas had specific relevance to knowledge and planning through their timing and possible links to the weapons and defendants. They were admitted under section 98(a) of the Criminal Justice Act 2003, not as generic bad-character evidence. The adverse-inference direction was fact-sensitive and justified by the applicant’s lies, silence and later materially different account. The circumstantial-evidence direction was adequate because the case was not solely circumstantial and the realistic alternative was apparent. The initial comment that the attack was premeditated was corrected and did not render the conviction unsafe. The disability evidence did not show inability to form the requisite intent or inability to follow the proceedings and give evidence.

• Court of Appeal (Criminal Division) A single judge refused the applicant’s earlier application. The full court refused the renewed application for an extension of time and the related fresh-evidence applications.
• Central Criminal Court The applicant was convicted of murder and wounding with intent on 30 March 2015 and sentenced on 23 April 2015.