A twist in the tail of Jogee
With the exciting decision of the Court of Appeal earlier this year in the case of R v Jogee  UKSC 8 came a change in the law with regard to joint enterprise and how it should be applied, particularly in the case of murder. In overturning previous case law on the subject the UKSC determined that:
- Accessory liability required proof of a conduct element accompanied by the necessary mental element;
- The requisite conduct element was that the accessory has assisted or encouraged the commission of the offence by the principal;
- The mental element was an intention to assist or encourage the commission of the crime, and that required knowledge of any existing facts necessary for it to be criminal;
- If the crime required a particular intent, the accessory had to intend to assist or encourage the principal to act with such intent;
- Foresight was not to be equated with intent to assist – foresight was evidence from which intent could be inferred.
The UKSC determined that the effect of putting the law to right is not to render invalid all convictions which were arrived at over many years as the error identified, of equating foresight with intent to assist, will have been important on the facts to the outcome of the trial or the safety of the conviction. Where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time. That court may do so if substantial injustice can be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.
Only in exceptional circumstances may an application be made for a further appeal where the original application was dismissed. Such caveats lie in the case of R v Pinfold  QB 462 (“Pinfold”) namely:
- Where the appeal has been abandoned, the court may in exceptional circumstances treat the abandonment as a nullity;
- If the dismissal of the first appeal involved some procedural defect which led to injustice for the appellant, the court may treat the dismissal as a nullity.
Pinfold asserted a level of finality to legal proceedings which confirms the rational that where there is a change in the law (as seen in Jogee) it can have a retrospective effect at common law save where a case has been finally determined ie with the dismissal of an appeal.
Jogee unflinchingly asserts that the effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in the previous authorities. Where, as in the Jogee cases, there has been no final determination by the Court of Appeal, the conviction can be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time. In those circumstances the court has power to grant such exceptional leave to appeal and may do so if substantial injustice can be demonstrated. However, if the appeal against conviction is effectively based on a change of law and nothing else, and the conviction was properly returned after a jury trial, it is unlikely that a substantial injustice will have occurred. The Jogee case of course did not deal specifically with cases where appeals have already been determined adversely to the appellants and applications to reopen were made. Such matters have for years been governed generally by the Pinfold principles.
On Tuesday 25th October 2016 it was reported the Northern Ireland Court of Appeal (NICA) concluded that the Jogee concept of “exceptional leave” is neither a fresh Pinfold ground nor an additional basis for reopening an appeal and in the circumstances the proper course of action would be for an application to be made to the Criminal cases Review Commission (CCRC). This decision effectively prevents the flood gates opening and anyone previously convicted of offences based on joint enterprise applying to the CoA to have their cases set aside. This will be disappointing for many but we may yet see another important ruling by the UKSC on this point.