Ennis, R. v

Factual and Procedural Background

On 30 March 2015 at the Central Criminal Court, the Applicant, then aged 19, was unanimously convicted of murder (Count 1) and wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 (Count 2). Two co-accused, referred to as Co-Accused A and Co-Accused B, were also convicted of both offences. On 23 April 2015, the Applicant was sentenced to life custody for murder, with a minimum term of 20 years specified under section 269(2) of the Criminal Justice Act 2003. A concurrent sentence of 9 years’ detention was imposed for the wounding with intent.

The Applicant renewed an application for an extension of time (approximately 5 years and 11 months) to seek leave to appeal against conviction, following refusal by a single judge. Additionally, the Applicant sought leave under section 23 of the Criminal Appeal Act 1968 to introduce fresh evidence.

The incident giving rise to the convictions occurred on 29 June 2014, when three men took a taxi from Wembley to Harlesden. Two men exited the taxi and attacked two young men walking home after a night out, resulting in fatal stabbing of one victim and wounding of the other. The attack was captured on CCTV and lasted approximately 30 seconds. The Applicant and his co-accused had known each other for years, with the Applicant describing one co-accused as his best friend.

The Applicant was arrested on 4 July 2014 and denied involvement in a prepared statement, later admitting at trial that he lied in that statement. The prosecution case relied upon witness testimony, CCTV footage, medical evidence, and agreed facts including hospital visits and telephone call records. Knives wrapped in patterned bandanas were found near a location linked to the taxi journey.

The prosecution contended the attack was a premeditated joint enterprise involving a knife attack, with one man remaining in the taxi to control it as a getaway vehicle. The Applicant’s defence was that he remained in the taxi and did not participate in the assaults, blaming one co-accused for the attack. The co-accused also gave conflicting accounts, each blaming the other for direct involvement.

The Applicant sought an extension of time to appeal and to admit fresh expert psychological and contextual evidence. The court considered the merits of the grounds despite difficulties with the delay in filing the extension application.

Legal Issues Presented

1. Whether the Applicant should be granted an extension of time to seek leave to appeal against conviction.
2. Whether fresh evidence, including expert psychological reports and contextual reports relating to joint enterprise, silence, rap music, and racial issues, should be admitted under section 23 of the Criminal Appeal Act 1968.
3. Whether the jury was wrongly directed on the law of joint enterprise, particularly in light of the Supreme Court decision in R v Jogee.
4. Whether the admission of evidence relating to rap music and bandanas was improper and rendered the conviction unsafe.
5. Whether the adverse inference direction relating to the Applicant’s silence in police interviews was wrongly given.
6. Whether the summing up contained inappropriate judicial comment affecting fairness.
7. Whether the circumstantial evidence direction was inadequate.
8. Whether the fresh evidence of the Applicant’s cognitive disabilities indicated procedural unfairness affecting the safety of conviction.

Arguments of the Parties

Applicant's Arguments

• The Applicant argued that the jury was wrongly directed on joint enterprise, particularly regarding foresight and intent, in light of the change in law from R v Jogee.
• The Applicant contended that the admission of rap music evidence and bandanas introduced racial bias and was prejudicial.
• The Applicant submitted that the adverse inference direction given for silence was inappropriate given his cognitive disabilities (ASD and ADHD) and psychological evidence.
• The Applicant claimed that judicial comments, especially the initial direction that the attack was premeditated and armed, were inappropriate and prejudicial.
• The Applicant argued the circumstantial evidence direction was inadequate and imbalanced.
• The Applicant contended that fresh expert evidence on his disabilities was relevant to issues of intent and procedural fairness and should have been before the jury.
• He challenged the high threshold of “substantial injustice” required to rely on the change in law from Jogee, arguing it restricts access to justice and disproportionately affects defendants with disabilities and minority ethnic backgrounds.

Respondent's Arguments

• The Respondent maintained that the jury directions on joint enterprise were legally correct and sufficient, including the role of the person remaining in the taxi.
• The Respondent argued that the rap music and bandana evidence was admissible as directly connected to the facts of the offence and not as generic bad character evidence.
• The Respondent submitted that the adverse inference direction was properly given based on the evidence and that the fresh psychological evidence did not undermine the decision to give that direction.
• The Respondent contended that the judicial comment on premeditation was corrected during trial and did not render the conviction unsafe.
• The Respondent argued the circumstantial evidence direction was appropriate and fair given the facts and the Applicant’s admitted presence at the scene.
• On the fresh evidence of disabilities, the Respondent submitted that the reports did not suggest incapacity to form intent and did not affect procedural fairness significantly.
• The Respondent relied on established case law requiring demonstration of substantial injustice to justify extension of time and out-of-time appeals based on Jogee.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the factual and evidential matrix, focusing on the correctness of jury directions, admissibility of fresh evidence, and the merits of the grounds for appeal.

Regarding joint enterprise, the court found the trial judge’s directions legally sound and sufficient, addressing the prosecution’s case that the Applicant’s role as the man controlling the taxi constituted active participation. The court rejected submissions that the directions were unclear or insufficient regarding the plan, intent, and knowledge of the Applicant.

The court considered the impact of the Supreme Court’s restatement in Jogee and confirmed that the Applicant must demonstrate substantial injustice to justify an out-of-time appeal. Given the strength of the prosecution case, including evidence of planning and shared intent to cause serious harm, the court concluded the change in law would not have made a difference.

On the rap music and bandana evidence, the court accepted that while there are concerns about racial bias and misinterpretation, the evidence was relevant and admissible as it was closely connected to the facts of the offence, including timing and potential links between the video and the knives. The judge’s directions to the jury appropriately framed the evidence and its inferences.

Regarding the adverse inference direction relating to silence during police interviews, the court found the direction was properly given based on the evidence and that the fresh psychological reports did not undermine this. The Applicant’s cognitive disabilities did not necessarily impair his decision-making in a way that would have negated the direction or made it unfair.

The court addressed the Applicant’s claim of inappropriate judicial comment and found that the correction made during trial mitigated any potential prejudice, with no basis to consider the conviction unsafe on that ground.

The circumstantial evidence direction was found to be appropriate and balanced, particularly as the Applicant admitted presence at the scene, and the jury was aware of the defence case that he was unaware of the assaults.

Finally, the court considered the fresh evidence of the Applicant’s disabilities and concluded that while these may have affected his cognitive function, they did not amount to a defence or undermine the ability to form intent. The Applicant’s legal team and family had not identified issues with his capacity to follow proceedings or give evidence, and the trial judge’s observations were not prejudicial.

Overall, the court found none of the grounds arguable and no basis to extend time or admit fresh evidence to support an appeal with prospects of success.

Holding and Implications

The court REFUSED the Applicant’s renewed application for an extension of time to seek leave to appeal against conviction and declined to admit the fresh evidence proposed.

The direct effect of this decision is that the Applicant’s convictions and sentences stand as imposed. No new precedent was established, and the court reaffirmed established principles regarding the high threshold for out-of-time appeals based on changes in the law, the admissibility of fresh evidence, and the proper approach to jury directions in joint enterprise cases.