25 October 2016

The Court of Appeal today refused applications by six applicants to re-open appeals in light of the UK Supreme Court decision in R v Jogee which overturned previous case law on joint enterprise. Each of the applicants has been convicted of murder and each has unsuccessfully appealed that conviction to the NI Court of Appeal before the advent of the Jogee case. The Court held that the Criminal Cases Review Commission is the proper avenue for making such an application. R v Jogee The UKSC judgment in R v Jogee [2016] UKSC 8 and the Privy Council judgment in Ruddock v The Queen [2016] UKPC 7 (“R v Jogee” or “the Jogee case”) overturned previous case law on joint enterprise. The UKSC determined that: •Accessory liability required proof of a conduct element accompanied by the necessary mental element; •The requisite conduct element was that the accessory has assisted or encouraged the commission of the offence by the principal; •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; •If the crime required a particular intent, the accessory had to intend to assist or encourage the principal to act with such intent; •Foresight was not to be equated with intent to assist – foresight was evidence from which intent could be inferred. The Court stated that 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. The UKSC said that the effect of putting the law to right is not to render invalid all convictions which were arrived at over many years as the error identified, of equating foresight with intent to assist, will have been important on the facts to the outcome of the trial or the safety of the conviction. Where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time. That court may do so if substantial injustice can be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. The cases before the NICA The applicants were: Barry David Skinner; Mark Kincaid; Brenda Dolores Meehan; Nigel James Brown; Peter Greer; and Stephen Charles McCaughey. All counsel agreed that the application of Brown was to operate as the lead case in these proceedings and to deal with all relevant issues arising out of the judgment in R v Jogee and the circumstances in law in which an appeal may be reopened. The main issue is whether the NICA has power to reopen these appeals. A brief summary of the facts of each applicant’s conviction is set out at paragraphs (10) to (57) of the judgment. Guiding Principles for the Issue in this Case Under section 1 of the Criminal Appeal (Northern Ireland) Act 1980, a defendant may appeal against his conviction on indictment with the leave of the court, or if the trial judge grants within 28 days a certificate that the case is fit for appeal. A person convicted of any offence on a non-jury trial may appeal against his conviction without leave or a certificate. If the Court allows an appeal where it thinks that the conviction is unsafe, it shall quash the conviction. The conventional wisdom has always been that if an appeal is unsuccessful (either because leave is refused or leave is granted and the appeal is dismissed), there is usually no opportunity for a further appeal even if the point to be argued is that new or fresh evidence has arisen. Two caveats to that rule were acknowledged in R v Pinfold [1988] QB 462 (“Pinfold”) namely: •Where the appeal has been abandoned, the court may in exceptional circumstances treat the abandonment as a nullity; •If the dismissal of the first appeal involved some procedural defect which led to injustice for the appellant, the court may treat the dismissal as a nullity. In Pinfold, the Court also said that it is in the interests of the public that there should be a limit or a finality to legal proceedings. The rationale behind this need for legal certainty is illustrated in case law which affirmed that the common law position is that judicial decisions which set a precedent in law have a retrospective effect except where the case has already been finally determined. Without this legal certainty, it would in principle suggest that every final verdict of a trial or decision of a Court of Appeal in a criminal case should be set aside or, where possible, re-tried in the light of subsequent decisions where such subsequent decisions could be claimed to provide a potential advantage to a party in such a re-trial. Parliament has provided an alternative remedy in the creation of the Criminal Cases Review Commission (“CCRC”). Under section 9 of the Criminal Appeal Act 1995 (“the 1995 Act”), the CCRC may at any time after a conviction on indictment refer a case to the Court of Appeal where there is a real possibility that the court will quash the original conviction or sentence. The reference will ordinarily only be made in respect of an argument or information not available to the court of first instance or on appeal, however, in exceptional circumstances, the CCRC may refer a case without any such development in the proceedings. If the CCRC decides to make a reference to the Court of Appeal, it stands as if leave has been granted and no question of time extension arises. On the other hand, the general practice is that the CCRC would not refer cases while it remained open to the applicant to apply to the Court of Appeal for leave to appeal out of time. The NICA referred to the case of R v Walsh [2007] NICA 4 where Kerr LCJ said the Court concluded that the power of the Court of Appeal to relist a case has not been removed by the 1995 Act: “The occasion for the exercise of such a power will only arise in the most exceptional of circumstances, however. In virtually every conceivable case it is to be expected that where the possibility of an injustice is reasonably apprehended, CCRC will refer the case. If it decides not to refer, however, the circumstances in which a challenge to that decision can be made are necessarily limited … Where CCRC has been invited to refer a conviction to the Court of Appeal for a second time and has declined, if this court considers that because the rules of well-established practice have not been followed, or the earlier court was misinformed about some relevant matter and, in consequence, if the appeal is not relisted, and injustice is likely to occur, it may have recourse to its inherent power to relist (or effectively reopen) the appeal.” Submissions in respect of Brown were made to the effect that the NICA did have power to hear the applications and could re-open the earlier appeal if the court was satisfied that a substantial injustice had occurred. The prosecution, however, contended that the courts should be careful not to trespass on the function of the CCRC and it is to this body that the applicant should turn: “No injustice is caused by refusing to re-open these cases given the presence of the CCRC. If a case is merely out of time, then an application can be made to the Court of Appeal to extend time. If the appeal has already been completed, then the avenue of remedy is the CCRC”. The NICA concluded that it should not re-open cases which have already been determined by the Court of Appeal absent features which bring them within the general confines of the finality principles as outlined in Pinfold. The appropriate recourse for these applicants in such circumstances is to turn to the CCRC. The NICA held that there is no authority for the proposition that every time there is a judicial adjudication clarifying or interpreting the law in a particular manner which could have some bearing on previous and finally decided cases, such cases should be re-opened or the decision set aside. To do so would render a legal system uncertain, incoherent and dysfunctional. Such clarification, even where it is correcting a wrong turn in the law as in Jogee, does not render a nullity any previous decision based on the position as understood prior to that clarification. Jogee unflinchingly asserts that 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 the previous authorities. Where, as in the Jogee cases, there has been no final determination by the Court of Appeal, the conviction can be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time. In those circumstances the court has power to grant such exceptional leave to appeal and may do so if substantial injustice can be demonstrated. However, if the appeal against conviction is effectively based on a change of law and nothing else, and the conviction was properly returned after a jury trial, it is unlikely that a substantial injustice will have occurred. The Jogee case of course did not deal specifically with cases, such as the instant applications, where appeals have already been determined adversely to the appellants and applications to reopen were made. Such matters have for years been governed generally by the Pinfold principles. The NICA did not consider that this is a moment to challenge conventional wisdom. Not one authority was opened, including Northern Ireland cases, which had done other than cite with approval the general nature of the Pinfold exceptions, that is, that cases will be re-opened only where there is a nullity or procedural defect. All of the cases cited to the NICA which have been re-opened after an appeal, have effectively been fitted into that genre of exception. These exceptions will obviously embrace instances of substantial injustice but they are confined within that category. The NICA recognised that there is no algorithmic formula or easy to apply rule for recognising all the circumstances that may fall within the second ground of Pinfold. Nonetheless if the second limb of Pinfold, a defect in procedure, is to be invoked, such a defect is a required desideratum. If this test is performed with integrity, the orthodoxy of the principle will not be punctured. A fundamental change to this settled principle is neither easily established nor to be lightly inferred absent some solid and persuasive authority. The NICA found no such unravelling threads in the authorities cited and held that Jogee’s case contains no material to persuade otherwise. The maintenance of Pinfold restraints do not elevate finality over injustice. It was the constraints of Pinfold and the determination of the legislature to uphold that principle that led to the discretion, originally exercised by the Home Secretary, being vested in the CCRC. The formation of the CCRC has closed any potential loophole of injustice in this context. The CCRC may refer a conviction “at any time”. Normal time limits are disapplied in the event of a reference. The Commission refers cases where there is a real possibility that the conviction will not be upheld. The Court of Appeal quashes convictions which are unsafe: “It seems to us inescapable that the proper avenue for these applicants is to consider the option of the CCRC unless they can bring their current applications broadly within the confines of the principles in Pinfold. Outside the general remit of Pinfold, the right to re-open appeals lies beyond the reach of this court. In short we have concluded that the Jogee concept of “exceptional leave” is neither a fresh Pinfold ground nor an additional basis for reopening an appeal.” Accordingly, the applications to reopen these appeals are refused. The NICA said these applicants should consider, if they deem it appropriate and if they have not already done so, referring their cases to the CCRC.