Regina v Johnson & Ors

Factual and Procedural Background

This opinion addresses a group of individual appeals concerning the impact of the Supreme Court's decision on 18 February 2016 in R v Jogee, Ruddock v The Queen [2016] UKSC 8, which redefined the law of joint enterprise, particularly as it relates to murder convictions. The cases are not connected except by the need to consider, on a case-by-case basis, whether prior convictions remain safe in light of the Jogee decision, which overturned the previous legal principles established in Chan Wing-Siu v The Queen [1985] AC 168 and R v Powell, R v English [1999] 1 AC 1.

The procedural context involves numerous appeals and applications for leave to appeal against convictions, some brought within the statutory time limit and others out of time, with the court required to consider the principles governing retrospective application of the new law and the threshold for exceptional leave to appeal.

The opinion also addresses several specific appeals arising from serious violent offences, including murder, with detailed factual backgrounds and trial outcomes.

Legal Issues Presented

1. What is the scope and retrospective effect of the Supreme Court's decision in Jogee on existing murder convictions based on joint enterprise?
2. How should appeals against conviction be treated when brought within the statutory time limit versus those brought out of time?
3. What constitutes a "substantial injustice" sufficient to justify exceptional leave to appeal out of time based on a change in the law?
4. How should the court assess the safety of convictions where jury directions were given under the pre-Jogee law?
5. What evidential considerations and factual findings are relevant in determining whether a conviction remains safe post-Jogee?
6. What is the proper approach to jury directions on joint enterprise and withdrawal in light of the Jogee decision?

Arguments of the Parties

Applicants' Arguments

• The applicants argued that the change in law effected by Jogee should allow them to challenge their convictions, particularly where the jury was directed on the basis of foresight rather than intention.
• It was submitted that some convictions were unsafe because the jury was misdirected on joint enterprise principles, especially regarding secondary participation and the mental element required.
• Applicants contended that exceptional leave to appeal out of time should be granted where the application of the Jogee principles might have affected the verdict, emphasizing the adverse consequences of convictions based on now-corrected errors of law.
• Interveners, including a non-profit organization representing families affected by joint enterprise convictions, highlighted public policy considerations balancing finality with justice.

Respondent's Arguments

• The court was urged to maintain legal certainty and finality, emphasizing that a change in law does not, by itself, justify reopening convictions unless substantial injustice is demonstrated.
• It was argued that many of the convictions were safe even under the Jogee principles given the factual findings and jury verdicts.
• For out-of-time appeals, the threshold for exceptional leave was contended to be high, requiring proof that the change in law would have made a difference to the outcome.
• The prosecution highlighted that in several cases the jury found facts consistent with the new law's requirements, including conditional intent, making the convictions safe.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Jogee, Ruddock v The Queen [2016] UKSC 8	Redefinition of joint enterprise law; intention replaces foresight as the mental element required for secondary liability in murder cases.	Central to reassessing the safety of prior convictions and establishing criteria for appeals and exceptional leave.
Chan Wing-Siu v The Queen [1985] AC 168	Established parasitic accessory liability based on foresight in joint enterprise.	Overruled by Jogee; prior convictions based on this principle scrutinized for safety.
R v Powell, R v English [1999] 1 AC 1	Refined principles on foresight and liability in joint enterprise; introduced concept of "fundamental departure" regarding weapons used.	Partially overruled by Jogee; "fundamental departure" concept limited post-Jogee.
R v Preddy [1996] AC 815	Clarified that misdirection or error does not automatically render conviction unsafe.	Applied to emphasize fact-sensitive approach to appeals.
R v Graham & others [1997] 1 Cr App R 302	Safety of conviction requires the court to be satisfied the conviction is unsafe to allow appeal.	Reiterated the high threshold for overturning convictions.
Cadder v HM Advocate [2010] UKSC 43	Consideration of retrospective effect of decisions and principle of legal certainty.	Referenced in relation to limiting retrospective application of new legal principles.
R v Cottrell and Fletcher [2007] EWCA Crim 2016	Application of principles limiting reopening of convictions after change in law.	Approved approach to exceptional leave and substantial injustice.
A v Governor of Arbour Hill Prison [2006] 4 IR 88	Principle that final decisions remain lawful despite subsequent ruling that statute was unconstitutional, except in exceptional cases.	Used as analogy to emphasize finality and public interest considerations.
R v Mitchell [1977] 1 WLR 753	Refusal of leave to appeal out of time on ground of change in law.	Illustrates reluctance to reopen old cases based solely on corrected legal misconceptions.
R v Church [1965] 1 QB 59	Objective test for manslaughter liability when violence escalates without intent to kill or cause serious harm.	Applied to distinguish manslaughter from murder post-Jogee.
Director of Public Prosecutions v Newbury [1977] AC 500	Reaffirmed objective test for manslaughter liability in joint enterprise context.	Supports the legal framework for assessing secondary liability.
R v F (J) & E (N) [2015] EWCA Crim 351	Recent reaffirmation of principles distinguishing manslaughter from murder in joint enterprise.	Reinforces the test applied in post-Jogee appeals.
R v R [2006] EWCA Crim 1974	Practice in applications for leave to appeal after reinterpretation of statute.	Guides assessment of substantial injustice in exceptional leave applications.
R v Saik	Interpreting statutory changes and their effect on appeals.	Referenced in relation to approach on substantial injustice and leave to appeal.

Court's Reasoning and Analysis

The court began by clarifying the scope of the Jogee decision, emphasizing that it replaced the prior law equating foresight with intent to assist with a requirement of actual or conditional intention to assist or encourage the principal offender. This change affects the mental element necessary for secondary liability in murder cases.

The court recognized that if the change in law had been statutory and prospective only, prior convictions would not be revisited. However, as Jogee applies retrospectively, appeals require an assessment of whether convictions remain safe under the new legal framework.

For appeals within the statutory time limit, the court applied the well-established statutory test that the conviction must be unsafe to allow an appeal. Mere misdirection or error does not suffice unless it renders the conviction unsafe in light of the facts.

For out-of-time appeals, the court held that exceptional leave is required and is granted only if the applicant demonstrates substantial injustice. The court stressed the importance of finality, legal certainty, and public interest, referencing prior authority that cautions against reopening numerous old cases solely due to corrected legal errors.

The court rejected the argument that the mere fact of a change in law justifies reopening convictions. Instead, the applicant must show that the change would have made a difference to the verdict and that a substantial injustice would otherwise result.

The court also considered the factual findings of juries in the individual cases, concluding that in many instances the verdicts reflected findings consistent with the Jogee principles, including conditional intent, rendering the convictions safe.

Regarding jury directions, the court analyzed whether the directions given pre-Jogee misled the jury in a way that undermined the safety of the convictions. It found that in many cases the directions, while not perfectly aligned with Jogee, did not result in unsafe convictions given the evidence and jury verdicts.

The court declined to consider sentencing issues except to allow adjustments for time spent on remand when appropriate.

In sum, the court applied a fact-sensitive, principled approach that balances the rights of appellants with the public interest in finality, requiring clear demonstration of substantial injustice before reopening convictions based on the Jogee decision.

Holding and Implications

The court refused the applications for leave to appeal and appeals against conviction based on the Jogee decision where it was satisfied that the convictions were safe and no substantial injustice was demonstrated.

Where appropriate, the court granted extensions of time and allowed appeals against sentence solely to correct the calculation of time spent on remand.

The direct effect of the decision is to uphold the majority of the prior convictions for serious violent offences, including murder, despite the change in the law governing joint enterprise liability. The court emphasized that the change in law does not automatically invalidate convictions where the jury's factual findings support the necessary intent under the new legal test.

The court confirmed the high threshold for exceptional leave to appeal out of time based on changes in the law, reinforcing the principles of legal certainty and finality. No new precedent beyond the application of Jogee and established appeal principles was set.