Queen v Skinner (Barry David), Mark Kincaid, Brenda Dolores Meehan, Nigel James Brown, Peter Greet, Stephen Charles McCaughey
| Jurisdiction | Northern Ireland |
| Judge | Gillen LJ |
| Judgment Date | 25 October 2016 |
| Neutral Citation | [2016] NICA 40 |
| Year | 2016 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 25 October 2016 |
1
Neutral Citaiton no: [2016] NICA 40
Ref:
GIL10068
Judgment: approved by the Court for handing down
Delivered:
25/10/16
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_______
THE QUEEN
-v-
BARRY DAVID SKINNER
MARK KINCAID
BRENDA DOLORES MEEHAN
NIGEL JAMES BROWN
PETER GREET
STEPHEN CHARLES McCAUGHEY
__________
Before: Gillen LJ, Weatherup LJ and O’Hara J
________
GILLEN LJ (giving the judgment of the court)
Introduction
[1] These are six conjoined applications before this court arising out of the
judgment of the United Kingdom Supreme Court (UKSC) in Regina v Jogee [2016]
UKSC 8 and the Privy Council in Ruddock v The Queen [2016] UKPC 7 (hereinafter
called ”R v Jogee” or “the Jogee case”). Five of the applicants have been convicted
of the offence of murder and Ms Meehan was convicted of murder but later on
appeal that conviction was substituted with a conviction for manslaughter. Each has
unsuccessfully appealed their conviction to the Northern Ireland Court of Appeal
(“NICA”) before the advent of the Jogee judgment.
[2] Each of these cases, whilst couched in terms of an application seeking
exceptional leave to appeal to the NICA out of time by demonstrating substantial
injustice, is in effect an application to re-open appeals which have already been
determined by the NICA.
R v Jogee
[3] Before turning briefly to the facts of the cases of each of these applicants , it is
necessary to advert to the recent seminal decision of R v Jogee. Because of the
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determination which we have reached in these matters, a brief summary of the
decision will suffice at this stage.
[4] The Jogee case overturning in Chan Wing Siu v The Queen [1985] AC 168 and
R v Powell and R v English [1999] 1 AC 1 - determined that accessory liability
required proof of a conduct element accompanied by the necessary mental element;
that the requisite conduct element was that the accessory has assisted or encouraged
the commission of the offence by the principal; that 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; that if the crime
required a particular intent the accessory had to intend to assist or encourage the
principal to act with such intent; that foresight was not to be equated with intent to
assist. Foresight was evidence from which intent could be inferred. The law had
taken a wrong turn when it had equated foresight with intent to assist.
[5] Juries frequently have to consider questions of intent by a process of inference
from facts and circumstances proved. Foresight that one accused may well commit a
specific crime may be evidence in support of an allegation that another accused had
the appropriate intent. This is a matter to be determined by the jury.
[6] We make no apology for rehearsing into the highly relevant contents of
paragraph 100 of the judgment in the context of these applications:
“100. 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 Chan Wing-Siu and in Powell and English.
The error identified, of equating foresight with intent
to assist rather than treating the first as evidence of
the second, is important as a matter of legal principle,
but it does not follow that it will have been important
on the facts to the outcome of the trial or to the safety
of the conviction. Moreover, where a conviction has
been arrived at by faithfully applying the law as it
stood at the time, it can be set aside only by seeking
exceptional leave to appeal to the Court of Appeal out
of time. That court has power to grant such leave, and
may do so if substantial injustice be demonstrated,
but it will not do so simply because the law applied
has now been declared to have been mistaken. This
principle has been consistently applied for many
years. Nor is refusal of leave limited to cases where
the defendant could, if the true position in law had
been appreciated, have been charged with a different
offence. An example is Ramsden [1972] Crim LR 547,
where a defendant who had been convicted of
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King v James Alexander Smith
...his appeal, concluding that the proper approach was to make an application to the CCRC. The judgment, R v Skinner & Ors is reported at [2016] NICA 40 and was delivered by Gillen LJ. [21] Within paras [56]-[81] of R v Skinner the guiding legal principles are set out. These principles require......