Garwood & Ors v REGINA

Factual and Procedural Background

The opinion arises following the Supreme Court's decision in R v Jogee, Ruddock v The Queen [2016] UKSC 8, which redefined the legal test for exceptional leave to appeal against conviction or to amend pre-existing grounds out of time, requiring demonstration of substantial injustice. The cases involving three appellants—referred to here as Appellant A, Appellant B, and Appellant C—were considered under this new framework but none met the threshold of substantial injustice. The current matter concerns an application for certification that a point of law of general public importance arises from the court's approach to the substantial injustice test, and whether the court has jurisdiction to grant such a certificate when leave to appeal has been refused. Additionally, one appellant's counsel seeks certification on the legal standard for participation necessary to found a conviction for joint enterprise murder.

Legal Issues Presented

1. Whether the Court of Appeal has jurisdiction to grant a certificate of a point of law of general public importance in circumstances where leave to appeal has been refused.
2. Whether the Court of Appeal’s approach to the test of substantial injustice, as articulated in R v Johnson and other cases [2016] EWCA Crim 1613, imposes an unduly onerous standard that ought to be reviewed by the Supreme Court.
3. Whether a certificate can be granted concerning the participation necessary to found a conviction for joint enterprise murder, specifically the liability of a defendant who neither orchestrated nor physically or assistively participated in the attack.

Arguments of the Parties

Appellant's Arguments

• Appellant B’s counsel argued that the Court of Appeal’s test for substantial injustice is new, unduly onerous, and should be subject to Supreme Court review via certification.
• It was contended that without certification, the Court of Appeal would remain the final arbiter of this important legal test, creating a barrier to further appellate scrutiny.
• Regarding the joint enterprise murder issue, it was submitted that a certificate should be granted to clarify the law on participation, particularly where a defendant is found to be part of a plan but did not physically or assistively partake in the attack.
• Appellant C’s counsel sought certification on the joint enterprise participation question, relying on the recent judgments and the need for legal clarity in this area.

Crown's Arguments

• The Crown submitted that the Court of Appeal lacks jurisdiction to grant a certificate absent a decision on an appeal determined on its merits with leave granted.
• It was argued that the term "appeal" in the relevant statute refers only to appeals pursued with leave and decided substantively, not to applications for leave.
• On the joint enterprise point, the Crown maintained that the court’s prior judgments clearly answer the question, and no new point of law of general public importance arises.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the statutory framework under the Criminal Appeal Act 1968, particularly s.33 which governs appeals to the Supreme Court. It emphasized that the right of appeal lies only with leave granted and that certification of a point of law of general public importance is a prerequisite for such leave. The court interpreted the term "appeal" as referring to a substantive appeal determined on its merits rather than an application for leave to appeal.

The court examined relevant statutory provisions and prior case law, including R v Stafford & Luvaglio and R v Mealey & Sheridan, which consistently held that the power to certify arises only after a decision on an appeal, not on an application for leave. The court rejected submissions that the definition of "appellant" in s.51(1) of the 1968 Act broadened this meaning to include leave applications for the purposes of Part II of the Act.

It further considered the procedural history and legislative amendments, including provisions introduced by the Criminal Justice and Immigration Act 2008, which reinforced the established approach to applications for leave and appeals. The court noted that if Parliament had intended to alter this jurisdiction, it would have done so explicitly.

Regarding the argument that the substantial injustice test should be reviewed by the Supreme Court, the court observed that the current statutory scheme and case law preclude certification absent a granted appeal. It acknowledged the Supreme Court’s recognition in Jogee of the need for exceptional leave and the requirement to prove substantial injustice but emphasized that leave would not be granted merely because a law has been declared mistaken.

On the joint enterprise participation issue, the court found no jurisdictional basis to grant a certificate and agreed with the Crown that the question posed was fact-specific and already addressed by existing authorities, including Jogee and Johnson.

Holding and Implications

The court REFUSED the applications for certification of points of law of general public importance in these cases.

The holding establishes that the Court of Appeal lacks jurisdiction to grant certification for Supreme Court appeal in circumstances where leave to appeal has been refused. Consequently, the approach to the substantial injustice test as applied by the Court of Appeal cannot be challenged further by certification. The decision also confirms that no new certification will be granted on the legal test for participation necessary to found joint enterprise murder liability as it is a fact-specific issue already settled by precedent.

This ruling directly affects the parties by denying further appellate review on these issues but does not establish new precedent beyond confirming existing statutory interpretation and procedural principles.