Article published by Felicity Gerry KC

Published: 23rd September 2022

On 22 September the Times Law section published an article by our Dr Felicity Gerry KC on the Criminal Appeal (Amendment) Bill or ‘Joint Enterprise’ Bill under the title “A glimmer of hope for hundreds wrongfully convicted of crimes”. You can read the article (paywall) here: – some of it is reproduced below.

A Private Members’ Bill currently before Parliament identifies the miscarriage of justice in ‘joint enterprise’ cases and passed its first reading in the House of Commons on 6 September 2022. The Criminal Appeal (Amendment) Bill or ‘Joint Enterprise’ Bill, seeks to amend the test which prevents those affected by an error of law from appealing their conviction unless they can prove they ‘would not have been convicted’ (the test articulated in R v Johnson and others [2016] EWCA Crim 1613). As is well known, hundreds, if not thousands, of people, often young, black and/ or with a disability were convicted of crimes they did not commit and have thus far been refused leave to appeal. In murder trials they were alleged to be accessories merely because they ‘foresaw’ a friend might commit a crime. In R v Jogee [2016] UKSC 8 (Jogee), now 6 years ago, the UK Supreme Court decided there had been an error of law which had been wrongly adopted for 30 years and only those who intended to assist or encourage a crime should be convicted as accessories. Subsequently, the Court of Appeal set the bar for appeal so high that only one case has passed the threshold. That person went on to be one of the London Bridge heroes who tackled the terrorist attacker.

Others who have been prevented from appealing are Alex Henry who lives with autism and did not touch the victim. Asher Johnson, a young black youth who withdrew before a knife was produced and T’Shai Ennis, a black youth with a cognitive disability whose application for leave to appeal was refused last month, who also did not touch the victim. Dr Gerry KC currently represents all three of these young men. Henry and Johnson’s cases are current at the Criminal Cases Review Commission after filing petitions for mercy. Following the refusal of leave in Ennis’ case [2022] EWCA Crim 1088, the UK Supreme Court is ‘functus’ so it cannot consider the race and disability issues raised both in relation to evidence of bad character and knowledge of the essential facts for the purposes of complicity. The Ennis decision at paragraphs 38 and 39 reads as follows:

  1. Dr Gerry QC contended that the substantial injustice hurdle sets far too high a threshold, which has proved impossible to surmount in practice. It amounts to a lack of access to justice and involves the surreptitious return of the proviso previously set out in section 2(1) of the Criminal Appeal Act 1968 which was repealed on 1 January 1996. Further, it is discriminatory. Dr Hulley and Dr Young’s work illustrates the over-representation of black and ethnic minority men in cohorts of people convicted under joint enterprise principles. She argued that the test also raises particular issues relating to the convictions of those with disabilities which may have complicated the approach to foresight.
  2. However, the substantial injustice test is well established. It flows directly from the Supreme Court’s observations as to the rationale for it in Jogee. The approach to cases of this nature was clearly set out by this Court in Johnson. We do not consider that there is any basis for us to depart from it. It follows that to the extent that the applicant relies on the change of law since Jogee, in order to justify an exceptional grant of leave to appeal his conviction, he must show substantial injustice.

Accordingly, the Court of Appeal has cemented its view that the substantial injustice test will apply in a very broad range of factual circumstances. This will not be a case-by-case approach. Priority is given to finality before the court and the opinion of the court on guilt.

It seems remarkable that, whilst the UK Supreme Court was brave enough to admit an error, there is no movement to correct the consequences. At present the solution seems to be a matter for the Executive.

There is a current review by the Law Commission into the functioning of the Court of Appeal, so the Bill is timely. It can only be hoped that Parliament will have the political will to support those families affected who have seen their children and other loved ones incarcerated because of a miscarriage of law.

It is notable that the famous appeal by Derek Bentley was successful decades after he was hanged when it was accepted that his jury were wrongly directed. There is therefore a conflict between court of appeal authorities – now wrongful judicial directions are not sufficient to overturn a conviction. In Ennis, submissions on incorrect directions were specifically rejected.  Justice is always slow but, as these prisoners grapple with a sentence that research by Cambridge University has shown lacks legitimacy, the pressure is on to bring some trust back to the appellate system.

The story does not end there: Since 2016, cases have been before the courts using the ‘intention’ test, but the law has developed to allow people to be convicted on little or no contribution to the crime. In one recent trial which Dr Gerry KC defended, where CCTV literally showed the defendant did not join in, the fact that he got out of a car was said to be enough to convict him of murder. Fortunately, the jury saw sense and he was acquitted. It is at least arguable that the law on complicity has lost sight of the element of causation.

It is not entirely clear why there is any appetite to convict people who make no contribution to a crime but in murder this puts people’s children and family members at risk of a mandatory life sentence with a minimum term of 25 to 35 years for a killing they did not do. It is a crisis in criminal justice that needs to be rectified and the Bill is a first step in that direction.