Jordan Cunliffe v Criminal Cases Review Commission

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeSir Brian Leveson P
Judgment Date11 April 2019
Neutral Citation[2019] EWHC 926 (Admin)
Date11 April 2019
Docket NumberCase No: CO/1651/2018

[2019] EWHC 926 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION

( Sir Brian Leveson)

Mr Justice William Davis

Case No: CO/1651/2018

Between:
Jordan Cunliffe
Claimant
and
Criminal Cases Review Commission
Defendant

Pete Weatherby QC (instructed by Irvine Thanvi Natas, London) for the Claimant

Sarah Clover (instructed by Criminal Cases Review Commission, Birmingham) for the Defendant

Hearing dates: 7 March 2019

Approved Judgment

Sir Brian Leveson P
1

This is the judgment of the court.

2

On the evening of 10 August 2007, Mr Garry Newlove went out of his house in Warrington in order to remonstrate with a group of young men who were causing damage to vehicles in the street. He was attacked by the group. He went to the ground. He was punched and kicked. One of the blows, which could have been a punch or a kick, caused a tear of a major artery in his neck close to his brain. This led to catastrophic brain damage. Mr Newlove died two days later in hospital.

3

Between 13 November 2007 and 16 January 2008, in the Crown Court at Chester before Andrew Smith J and a jury, five young men stood trial for Mr Newlove's murder. Stephen Sorton, Adam Swellings and Jordan Cunliffe were convicted of murder; the other two were acquitted. Jordan Cunliffe was 16 at the date of sentence. He was sentenced to custody for life with a minimum term of 12 years.

4

Sorton and Swellings pursued unsuccessful appeals (see [2009] EWCA Crim 3249). Jordan Cunliffe applied unsuccessfully for leave to appeal out of time against his conviction (based on fresh evidence and the failure to provide a tailored good character direction): [2010] EWCA Crim 2483. An appeal against sentence was technically successful in that he should have been sentenced to detention at Her Majesty's Pleasure subject to a minimum term rather than custody for life. The Court of Appeal substituted such a sentence but did not alter the minimum term.

5

In August 2014, Jordan Cunliffe applied to the Criminal Cases Review Commission (“CCRC”) seeking a referral of his case to the Court of Appeal (Criminal Division) pursuant to s. 9 of the Criminal Appeal Act 1995. The grounds of the application related to the visual disability to which he was subject at the time of the attack on Mr Newlove. In August 2015, further submissions were made to the CCRC based on the decision in R v Childs and Price [2015] EWCA Crim 665: these submissions concerned the issue whether proper directions were given in respect of a defendant whose participation in the joint enterprise began only after the fatal blow was struck. Finally, in February 2016, the Supreme Court handed down its decision in R v Jogee, Ruddock v The Queen [2016] UKSC 8, [2017] AC 387 (“ Jogee”). In the light of that decision, further submissions were made to the CCRC concerning the directions on joint enterprise given at trial.

6

On 2 June 2017 the CCRC made a provisional decision that it would not refer Jordan Cunliffe's conviction to the Court of Appeal. Submissions were made on his behalf in respect of that provisional decision. In October, the CCRC made a second provisional decision in the same terms. After further representations, on 12 January 2018, the CCRC made its final decision not to refer the conviction.

7

With leave of the single judge, Jordan Cunliffe now applies for judicial review of the decision of the CCRC. His application is made on three grounds. First, it is argued that the statutory test has been misapplied. Second, the decision of the CCRC was irrational and unreasonable in the Wednesbury sense because, having concluded in its decision that there must be a real possibility that a different direction on the issue of joint enterprise might have made a difference at trial, it nonetheless went on to decide that there was not a real possibility that the Court of Appeal would find that it would have done so. Third, it is argued that the decision of the CCRC was irrational and unreasonable in relation to the participation of Jordan Cunliffe at the time that the fatal blow was struck. No other ground is pursued. The detailed submissions in relation to visual disability are no longer pursued as a separate ground but the impact of this disability is said to be relevant to the other issues that fall to be considered.

The Trial

8

The prosecution case at trial was that Jordan Cunliffe intended to inflict really serious injury as part of a joint enterprise with four other young males, all of whom were concerned in a joint attack on the victim who had done no more than intervene and seek to prevent loutish behaviour damaging cars parked in the street.

9

The material on which the prosecution relied consisted of several different strands of evidence. The first strand was the eyewitness evidence from Tracey Cassidy and Zoe Newlove (Mr Newlove's daughter). Ms Cassidy was in her bedroom at 10.30 pm when she saw a group of youths surround a man (who was Mr Newlove) and begin to punch him. Mr Newlove staggered but did not fall over. She ran down to the road where some youths were still present. She described one of them pulling their leg back from Mr Newlove as if he had kicked a football. She assumed that he had kicked Mr Newlove but did not see the kick. A little later she saw the same youth again and noticed that he had no shoes on.

10

Ms Cassidy later attended eight Viper identification procedures. In four cases she identified innocent volunteers as having been involved in the attack. However, in one procedure she identified Jordan Cunliffe whom she described as the youth she saw pulling his leg back. Significantly, in interview and at trial (but not in the interim), Jordan Cunliffe's case was that he was not wearing shoes.

11

Ms Cassidy accepted that her evidence was in some ways different from statements she gave to police. In her first witness statement she referred to seeing the kick from her bedroom. Her explanation before the jury was that this statement was signed in the early morning. She was at the time concerned about her children. At that time, she explained that she was in such a state that she would have signed anything.

12

Zoe Newlove saw the group form a semicircle around her father and saw the first punches. After her father went to ground he curled up and put his hands over his head (though the evidence of Thomas Sherrington, another eyewitness, was that he had been “completely inert” when he fell). The group then started to kick him, including the youth who first hit him. They kicked him on his head, shoulders and body, like kicking a football, and laughed as they did so. When the youths were backing away, she grabbed one of them whom she thought had been kicking her father. There was evidence that this was Jordan Cunliffe.

13

Two girls, Natalie Domville and Nicole Bate, who were friends of Jordan Cunliffe and the other defendants also gave eyewitness evidence. Both girls said that Jordan Cunliffe was with the others standing around Mr Newlove. Natalie Domville said that she saw only one person, Adam Swellings, strike Mr Newlove. Nicole Bate said that Swellings and Stephen Sorton had struck blows. Another friend of the defendants, Ashley Roberts said he saw Mr Newlove pull back and kick someone whom he believed to be Jordan Cunliffe. Mr Newlove ended up on the ground and Jordan Cunliffe and other defendants were near Mr Newlove.

14

The second limb relied upon by the prosecution came from two individuals who gave evidence of what Jordan Cunliffe said shortly after the incident. First, Jack Chisnall asserted that he had met Jordan Cunliffe, who was with Sorton, on Station Road very shortly after the attack on Mr Newlove. Mr Chisnall said that Jordan Cunliffe had said “we have just battered the fuck out of this fellow, he's lay there on the floor and all of his mates say he's fucking dead”. Ian Gerraghty gave evidence in similar terms but it was Jack Chisnall who had told him that the name of the person who said this was Jordan Cunliffe. Second, Sian Lloyd-Jones said that Jordan and Gareth Cunliffe both ran over to her and said that they had beaten someone at the end of the road. She identified Jordan Cunliffe at a Viper identification procedure. In her first police interview she had said that only Gareth Cunliffe had spoken to her and had said that he had just hit a man and he thought he was dead.

15

The third limb of the prosecution case was evidence that the defendants were involved in a number of other assaults in the week before and on the night of the attack on Mr Newlove. This was said to be evidence of their propensity to act violently together and, in particular, against someone who had remonstrated with them.

16

The two incidents most relevant to Jordan Cunliffe both took place on 3 August 2007, a week before the assault on Mr Newlove. The first involved Philip Harrison. He said that he had had a quarrel with Sorton or Bate the day before the incident. The following day the two came to his house and then they all went to the bench area in Parkfield. Bate asked him for a telephone number and while he looked for it someone punched him on the mouth. He backed away but Jordan and Gareth Cunliffe, Bate and Sorton all ran towards him. He fell to the floor and curled up while they kicked him, though Gareth Cunliffe told them to get off him. Norman Penson, a 10-year-old boy, said that he saw Sorton hit Harrison and then saw Jordan Cunliffe, Bate, Sorton and possibly Gareth Cunliffe chase after Harrison.

17

The second incident involved Stephen Ormerod. He was a man in a similar position to Mr Newlove i.e. a householder who went out into the street from his home when he became aware of a disturbance outside. Mr Ormerod had parked his company van outside his house. At around 10.00 pm after...

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