Smith, R. v

Factual and Procedural Background

This case concerns a reference from the Criminal Cases Review Commission ("the CCRC") seeking a review of the Appellant's convictions for one count of murder, one count of attempted murder, and two counts of possession of a firearm with intent to endanger life. The Appellant was convicted on 22 March 2013 at Downpatrick Crown Court and sentenced to life imprisonment with a minimum term of 21 years. The co-accused was also convicted of similar offences.

On 13 May 2011, two masked men armed with firearms entered a residence where two males were present. Shots were fired, resulting in the death of one male and injury to the other. The perpetrators fled in a stolen car, later found burnt out, and a second vehicle linked to the co-accused was seen in the vicinity. The Appellant was arrested in the second vehicle approximately 50 minutes after the shooting, with evidence including DNA on gloves and a hat linking him to the vehicle.

The prosecution case was circumstantial, relying on a joint enterprise theory without attributing specific roles to the Appellant or his co-accused. The Appellant did not give evidence at trial. The jury returned unanimous guilty verdicts on all counts, and both defendants were sentenced to life imprisonment.

The Appellant appealed against his convictions, but the Court of Appeal dismissed the appeals in 2014, finding the circumstantial evidence very strong and the convictions safe. The co-accused lodged a second application in 2016 which was declined, with the Court advising an application to the CCRC instead.

The Appellant subsequently applied to the CCRC in 2019, which referred the case to the Court of Appeal in 2022 based primarily on a change in the law regarding secondary party liability following the Supreme Court decision in R v Jogee [2016] UKSC 8.

Legal Issues Presented

1. Whether the change in law regarding secondary party liability established by R v Jogee and clarified in R v Johnson and others applies to the Appellant's convictions.
2. Whether the jury directions at trial, particularly concerning attempted murder and joint enterprise, were compliant with the correct legal standards post-Jogee.
3. Whether the Appellant's convictions are unsafe due to misdirections and inconsistencies in the trial judge's charge and prosecution closing speech.
4. Whether the Appellant suffered a substantial injustice warranting quashing of the convictions in light of the change in law.

Arguments of the Parties

Appellant's Arguments

• The prosecution case was presented to the jury on an incoherent basis, making it unclear on what basis the Appellant was convicted.
• The trial judge misdirected the jury on the correct approach to hindsight evidence.
• The judge misdirected the jury regarding joint enterprise, relying on pre-Jogee law, causing an unfair trial and unsafe convictions.
• The prosecution closing speech was based on the old law of joint enterprise, potentially misleading the jury.
• The jury directions on attempted murder were not Jogee compliant, particularly the use of "contemplation" rather than "knowledge," causing confusion.
• If convicted as a secondary party, there is a real danger the jury convicted on an impermissible basis lacking the necessary intent.
• The convictions for firearms offences are also unsafe as they were linked to the flawed murder and attempted murder directions.
• The Appellant contends the court cannot safely conclude the jury would have convicted with correct post-Jogee directions.

Respondent's Arguments

• The Appellant must demonstrate a substantial injustice and consider the strength of the case that the change in law would have made a difference.
• This is not a parasitic accessory liability case; the CCRC erred in applying Jogee to this case.
• The offence was a carefully planned assassination with a clear intention to kill; no other crime was intended.
• The prosecution was not required to identify specific roles of the accused; proving participation with intent suffices.
• The jury was correctly directed in accordance with Jogee regarding the murder charge, the main focus of the trial.
• Any misdirection regarding attempted murder does not amount to a substantial injustice on the facts.
• The circumstantial evidence against the Appellant was very strong, supporting the safety of the convictions.
• The prosecution had to prove intent to kill or cause grievous bodily harm and that the Appellant intentionally encouraged or assisted with that intent, which the evidence supported.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Jogee [2016] UKSC 8	Corrected the law on the mental element required for secondary party liability, clarifying that foresight is evidence of intent, not intent itself.	The court considered whether the change in law applied to the Appellant’s case and concluded it did not, as this was not a parasitic accessory liability case.
R v Johnson and others [2016] EWCA Crim 1613	Clarified the application of Jogee, emphasizing the high threshold for finding a substantial injustice from the change in law.	Referenced in assessing whether misdirections amounted to substantial injustice warranting quashing of convictions.
R v White (Lindsay) [2017] NICA 49 & R v Wallace and Kerr [2017] NICA 57	Indicated that the Northern Ireland Court of Appeal would follow the principles in R v Johnson.	Supported the court’s approach to applying Jogee and related case law in the present appeal.
R v Skinner & Ors [2016] NICA 40	Set out principles governing re-opening of appeals and the high threshold for doing so.	Guided the court’s consideration of whether to re-open the appeal and the role of the CCRC reference.
R v Maughan (Re-hearing of Appeal) [2004] NICA 21 & R v Walsh [2007] NICA 4	Examples of exceptional circumstances permitting re-opening of appeals due to procedural defects or overlooked evidence.	Referenced in discussing the limited circumstances in which appeals may be re-opened.
Christopher Boughton-Fox v Regina [2014] EWCA Crim 227 & R v Barry Jones Strettle [2013] EWCA Crim 1385	Advocated a restrictive approach to second appeals outside the CCRC route.	Supported the court’s view on the importance of finality and the role of the CCRC in preventing miscarriages of justice.
R v Yassain [2015] 3 WLR 1571	Allowed re-opening of appeal due to procedural defect causing real injustice.	Used to illustrate the residual discretion of the Court of Appeal to avoid real injustice.
R v Kincaid [2009] NICA 67	Set out the correct approach to circumstantial evidence.	Applied in assessing the trial judge’s directions on circumstantial evidence and whether they were adequate.
McGreevy v DPP [1973] 1 All ER 503	Established that circumstantial evidence does not require special directions on burden or standard of proof beyond the usual beyond reasonable doubt standard.	Referred to confirm that the jury must be satisfied beyond reasonable doubt on the totality of evidence.
R v Robinson [2021] NICA 65	Restated principles governing circumstantial evidence and jury directions.	Supported the court’s view that the trial judge’s directions were consistent with established law.
R v Dreszer [2018] EWCA Crim 454 & R v Crilly [2018] 4 WLR 114	Cases involving parasitic accessory liability where secondary party liability principles apply.	The court found these cases distinguishable and not applicable to the present facts.

Court's Reasoning and Analysis

The court began by reviewing the legal framework governing the re-opening of appeals, emphasizing the high threshold required and the central role of the CCRC in preventing miscarriages of justice. It acknowledged the change in law established by R v Jogee concerning the mental element for secondary party liability, clarifying that foresight is evidence of intent, not intent itself.

Examining the facts, the court found that this case did not involve parasitic accessory liability as addressed in Jogee. Instead, it involved a pre-planned assassination where all participants were responsible for the crime, whether as principals or secondary parties. The prosecution case did not seek to identify specific roles, which is legally permissible.

The court scrutinized the trial judge’s directions, noting that the directions on murder and firearms offences were Jogee compliant, while the attempted murder direction was not, due to the use of the term "contemplation" rather than "knowledge." However, considering the charge as a whole and the strength of the circumstantial evidence, the court concluded this did not amount to a fatal flaw or substantial injustice.

The court also addressed the Appellant’s submissions on circumstantial evidence and hindsight presentations, finding that the trial judge’s directions were consistent with established legal principles and that no misdirection occurred. The absence of written directions was not considered fatal given the practice at the time.

In assessing whether the change in law would have made a difference, the court emphasized the strength of the prosecution’s circumstantial case and the logical inference that the Appellant possessed the necessary intent. The jury was entitled to convict the Appellant as a secondary party with intent to kill or cause serious harm.

Finally, the court rejected the contention that the prosecution case was left to the jury on an incoherent basis, referencing the previous Court of Appeal’s findings and the overall clarity of the prosecution’s approach.

Holding and Implications

The court dismissed the CCRC reference.

The court held that the change in law articulated in R v Jogee did not apply to this case as it was not a parasitic accessory liability situation. The trial judge’s directions, when considered as a whole, were not so flawed as to render the convictions unsafe. The circumstantial evidence was strong, and no substantial injustice arose from any alleged misdirection.

The direct effect is that the Appellant’s convictions remain upheld and the reference is dismissed. The court did not set any new precedent but reaffirmed established principles regarding the application of Jogee, the approach to circumstantial evidence, and the high threshold for re-opening appeals.