Johnson & Ors, R. v (Rev 1)

Facts

A number of applicants had been convicted of murder or other serious offences on the basis of the law of joint enterprise as it stood before the Supreme Court in R v Jogee [2016] UKSC 8 held that foresight of what the principal might do was not a sufficient mental element for secondary liability but only evidence of intention. They sought extensions of time to appeal, and leave to appeal, on the ground that the law had been wrongly stated at their trials.

History

The applicants were convicted at various times at the Crown Court and their earlier appeals, where there were any, had failed. After Jogee they applied out of time to the Court of Appeal, which heard the applications together to settle the approach.

Issue

Whether the correction of the law of secondary liability was itself a sufficient basis for extending time and granting leave to appeal, and what test applies to an applicant who was convicted on the earlier law.

Held

The Court of Appeal held that the fact that the law had been misstated is not enough. An extension of time will be given only where the applicant shows that a substantial injustice would otherwise result, and the court will ask whether, on the whole of the case, the applicant would probably have been convicted if the correct law had been applied.

Ratio

• The correction of the law in Jogee does not by itself justify an extension of time to appeal, because the overriding principle of finality of convictions requires the applicant to show something more.
• That something more is substantial injustice: whether there is a real prospect that, applying the correct mental element of intention to assist or encourage, the applicant would not have been convicted, with the focus on whether the earlier jury must necessarily have found the intent.

Key reasoning

• Where the law has been authoritatively restated as always having been different, finality of convictions still matters and the court should not reopen cases simply because the law has been restated.
• The substantial injustice test requires the court to consider the facts, the way the case was left to the jury and what the verdict necessarily implies about the defendant's intention, since a defendant who had the requisite intention to assist or encourage the crime has suffered no injustice.

Where it fits in the module

Johnson belongs in the complicity topic as the immediate practical consequence of Jogee. It shows that the shift from foresight to intention as the mental element of accessorial liability for murder does not automatically unpick earlier convictions. It is useful for essays on whether the reform of joint enterprise achieved real change in outcomes and on how the doctrine of finality affects the correction of legal errors.

Criticisms

• The substantial injustice test reintroduces the old law through the back door, since juries who convicted on the basis of foresight may in practice have inferred intention from the same facts.
• Asking the Court of Appeal to speculate about what the jury would have decided on the correct directions is an unsatisfactory substitute for a fresh trial, particularly in a serious offence such as murder.
• Treating finality as outweighing a demonstrated misstatement of the law leaves convicted persons serving long sentences for offences on a basis the highest court has said was wrong.