R v Lewis Johnson and Others
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ,Sir Brian Leveson,Hallett LJ,Or |
| Judgment Date | 31 October 2016 |
| Neutral Citation | [2016] EWCA Crim 1613 |
| Docket Number | Case Nos: 2013/04599/B5, 2013/04600/B5, 2015/02931/B5, 2015/02317/B5, 2015/01239/B5, 2014/05801/B5, 2013/04602/B5, 2015/02337/C3, 2015/02394/C3, 2016/01050/B3, 2016/01541/C1, 2014/04866/C2, 2014/04800/C2, 2014/04719/C2, 2016/02407/C2, 2016/01769/C2, 2014/04869/C2, 2016/01965/C4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 October 2016 |
[2016] EWCA Crim 1613
The Lord Chief Justice of England and Wales
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION
Case Nos: 2013/04599/B5, 2013/04600/B5, 2015/02931/B5, 2015/02317/B5, 2015/01239/B5, 2014/05801/B5, 2013/04602/B5, 2015/02337/C3, 2015/02394/C3, 2016/01050/B3, 2016/01541/C1, 2014/04866/C2, 2014/04800/C2, 2014/04719/C2, 2016/02407/C2, 2016/01769/C2, 2014/04869/C2, 2016/01965/C4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Oliver S P Blunt QC, Alexia Power and Hannah Burton for the Appellant Lewis Johnson
S Bennett-Jenkins QC (who did not appear at the trial) for the Appellant Asher Johnson
S Forshaw QC for the Applicant Garwood
J Wood QC for the Applicant Burton
A Lakha QC for the Applicant Terrelonge
I Mahmood for the Applicant Moises
Nigel Power QC for the Applicant Hore
Michael Turner QC (who did not appear at the trial) for the Appellant J Miah
Michael Wolkind QC (who did not appear at the trial) for the Applicant Hussain
David Hislop QC (who did not appear at the trial) and Piers Marquis for the Applicant Khan
Jo Sidhu QC for the Appellant R Miah
Christopher Sallon QC (who did not appear at the trial) for the Applicant Hall
John McGuinness QC and Duncan Atkinson QC (who did not appear at the trials) for the Respondent, together with Jacob Hallam on the Appeal of Terrelonge and Burton
Tim Moloney QC and Jude Bunting for the Intervener, Joint Enterprise: Not Guilty by Association
Hearing dates: 21–22 June and 29–30 June 2016
Approved Judgment
Lord Thomas of Cwmgiedd, CJ, Sir Brian LevesonPQBD andHallett LJ, V-P:
I GENERAL APPROACH
Introduction
This group of cases are not connected save for the need to consider, individually for each case, the impact on convictions (mainly, but not entirely, for murder) of the decision of the Supreme Court on 18 February 2016 in R v Jogee, Ruddock v The Queen [2016] UKSC 8. [2016] 2 WLR 681 (" Jogee") in relation to the issue of joint enterprise as a consequence of the reversal of the pre-existing law laid down in Chan Wing-Siu v The Queen [1985] AC 168 and R v Powell, R v English [1999] 1 AC 1.
Had the change of law identified in Jogee been set out in statute (as opposed to judicial decision of the Supreme Court), there would be no question of re-visiting any such convictions: the new law would apply only prospectively. On the basis that the Supreme Court identifies the law both prospectively and retrospectively, however, review requires consideration of the concept of safe conviction as well as the impact of late (out of time) appeals in circumstances where it is not suggested that judges at trial did not faithfully follow the law as then articulated by the House of Lords but whose directions, as a consequence of Jogee, no longer comply with what the present common law dictates.
The scope of the decision in Jogee
In approaching appeals in respect of convictions prior to the decision in Jogee consideration has to be given to the extent to which the verdict could only properly be interpreted in accordance with the common law principles of joint enterprise (two or more people setting out to commit an offence, crime A, or intending to encourage or assist in the commission of that offence) rather than parasitic accessory liability. As Jogee explains (at [2]), the latter arose (following Chan Wing-Siu v The Queen and R v Powell, R v English) where, in the course of that joint enterprise to commit crime A, one of the co-adventurers D1, commits another offence, crime B: the others involved in the original joint enterprise were guilty as an accessory to crime B if they or any of them had foreseen the possibility that D1 might act as he did. As Lord Hughes and Lord Toulson go on to explain, the law, as then formulated, was that:
"D2's foresight of that possibility plus his continuation in the enterprise to commit crime A were held sufficient in law to bring crime B within the scope of the conduct for which he is criminally liable, whether he intended it or not."
In that context, for murder, the law also required consideration of whether a weapon used to cause death was "fundamentally different" from any weapon of which D2 had knowledge although, in Powell & English, Lord Hutton added that if the contemplated weapon was "different to, but as dangerous as" the weapon used, D2 should not escape conviction if he foresaw that the different weapon might be used to kill (or, presumably, cause serious bodily injury): see [1999] 1 AC at 30. The effect of Jogee, however, is that save when death is caused by some overwhelming supervening act, relegating what had gone before to history, there would "normally" be no occasion to consider the concept of "fundamental departure". Lord Hughes and Lord Toulson observed (at [98]):
"What matters is whether D2 encouraged or assisted the crime, whether it be murder or some other offence. He need not encourage or assist a particular way of committing it, although he may sometimes do so. In particular, his intention to assist in a crime of violence is not determined only by whether he knows what kind of weapon D1 has in his possession. … If that crime is murder, then the question is whether he intended to assist the intentional infliction of grievous bodily harm at least … Knowledge or ignorance that weapons generally, or a particular weapon, is carried by D1 will be evidence going to what the intention of D2 was, and may be irresistible evidence one way or the other, but it is evidence and no more."
Thus, by focussing on intention (or conditional intention, that is to say, in circumstances in which D2 expressly or tacitly agreed to a plan to commit crime A which included a common purpose or common intent, if it came to it, to commit crime B), the knowledge of a weapon (being a critical ingredient of parasitic accessory liability under Chan Wing-Siu v The Queen and R v Powell, R v English) remains highly material in relation to the inference of intention. After Jogee, however, even if the facts of any individual case raise concern as to the safety of a conviction for murder, a conviction for manslaughter does not depend on knowledge of the weapon. The test (articulated at [96]) is put in this way:
"If a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will be not guilty of murder but guilty of manslaughter. So also if he participates by encouragement or assistance in any other unlawful act which all sober and reasonable people would realise carried the risk of some harm (not necessarily serious) to another, and death in fact results: R v Church [1965] 1 QB 59, approved in Director of Public Prosecutions v Newbury [1977] AC 500 and very recently re-affirmed in R v F (J) & E (N) [2015] EWCA Crim 351: [2015] 2 Cr App R 5. The test is objective. As the Court of Appeal held in Reid, if a person goes out with armed companions to cause harm to another, any reasonable person would recognise that there is not only a risk of harm, but a risk of the violence escalating to the point at which serious harm or death may result. Cases in which D2 intends some harm falling short of grievous bodily harm are a fortiori, but manslaughter is not limited to these."
In considering the effect of the decision in Jogee on prior convictions it is necessary to distinguish between appeals brought within the time limit of 28 days specified in s.18(2) of Criminal Appeal Act 1968 and those brought outside that time.
Appeals against conviction brought within time
Appeals against conviction brought in time must be judged in accordance with the well-established statutory requirement identified in s.2(1) of the Criminal Appeal Act 1968: it is not sufficient only for there to have been some misdirection or error in the conduct of the trial. What is critical is that the verdict is thereby rendered unsafe. Indeed, s. 2(2) emphasises that position by underlining that the court shall allow the appeal if they "think that the conviction is unsafe" but "shall dismiss such an appeal in any other case". Thus, the decision in any case must be fact sensitive: a misdirection of law which was not, in reality, in relation to a true (or real) issue in the trial, does not thereby (and certainly not necessarily) render a conviction unsafe. That much was made clear in the series of appeals that followed R v Preddy [1996] AC 115 which also modified previously understood common law. In R v Graham & othercases [1997] 1 Cr App R 302, Lord Bingham CJ put the matter in this way:
"If the court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe."
That a successful appeal will not necessarily follow from a conviction based on the pre- Jogee law was also emphasised by the Supreme Court which made it clear that the approach applies to convictions however recently determined. Thus, in Jogee, Lord Hughes and Lord Toulson said (at [100]):
"The effect of putting the law right is not to render invalid all convictions which were arrived at over...
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