Mixed reaction from lawyers as 13 convictees’ applications dismissed
The Court of Appeal has shrugged off a raft of post-Jogee appeals this morning, sparking a mixed reaction from the profession.
Readers may remember the 2016 criminal law case of Ameen Jogee, a hugely important Supreme Court judgment that saw the law of joint enterprise drastically changed.
Jogee was convicted of the murder of a police officer under the doctrine of joint enterprise, which — at its most basic — states all participates in a joint criminal enterprise will be criminally liable for the harm that results from that enterprise.
He successfully challenged the doctrine in the highest court in the land, with Lord Neuberger and co agreeing the law had been “wrongly interpreted”. More than 30 years of case law was overruled, making way for a more defendant-friendly mens rea requirement.
Jogee himself was retried and eventually convicted of manslaughter, and others are now attempting to rely on the Supreme Court case to challenge their convictions.
Thirteen such applications were considered by three of the country’s top judges this morning. The Lord Chief Justice, Sir Brian Leveson and Lady Justice Hallett had to decide whether — given the Supreme Court judgment — the convictions at hand amounted to a “substantial injustice”. The Court of Appeal said it didn’t.
The news has prompted a polarised reaction.
Anonymous blogger the Secret Barrister said the ruling was “not unexpected”, while Garden Court barrister Joanne Cecil went for “unsurprising”.
Unsurprisingly CACD conclude not a single case meets substantial injustice test and refuse to even grant leave #JointEnterprise #jogee
— Joanne Cecil (@JoanneCecil) October 31, 2016
Others have taken issue with the decision — known as Johnson after the lead appellant Lewis Johnson — largely because of the court’s adoption of the “substantial injustice” test.
Take Leicester law professor Martin George.
'Substantial injustice' is a fraught concept, because all injustices are substantial to the people who suffered them. #jointenterprise
— Martin George (@martingeorge) October 31, 2016
Doughty Street Chambers’ Harriet Johnson echoed this.
The "substantial injustice" element of #Jogee never sat well; partly because it's founded on a notion that *some* injustice is acceptable https://t.co/PfAl3twGxv
— Harriet Johnson (@HarrietEJohnson) October 31, 2016
Barrister Adam Wagner, who represented Jogee in the Supreme Court alongside Felicity Gerry QC, said the “substantial injustice” terminology wasn’t part of either party’s submission but the court’s “surprise conclusion”, which makes it obiter.
3/3 So on one view "substantial injustice" part of Supreme Court totally obiter. So today's CoA judgment should be appealed to UKSC
— Adam Wagner (@AdamWagner1) October 31, 2016
Today’s ruling, he concluded, should be appealed.
