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Jogee: Court of Appeal refuses to grant leave to appeal in swathe of joint enterprise cases

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Mixed reaction from lawyers as 13 convictees’ applications dismissed

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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”.

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.

Doughty Street Chambers’ Harriet Johnson echoed this.

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.

Today’s ruling, he concluded, should be appealed.

You can read the full judgment here:

13 Comments

Anonymous

“Substantial injustice” should not have been, with respect to Adam Wagner, a surprise conclusion. It is the test that the CA has adopted when dealing with ‘change of law’ appeals in the criminal jurisdiction for many years.

The Judgment today highlights the previous cases of Hawkins (Bingham LCJ), Cottrell (the future Judge LCJ) and R (the future Lord Hughes) which are powerful previous authorities. They could as easily have cited a raft of other decisions (Bestel etc) The result? Even if the Supreme Court had not commented on the test to be applied, the CA would have been bound by its own decisions.

Even if this decision were appealed, it would be a very surprising conclusion if a constitution of the Supreme Court could be found which was prepared to re-visit this issue given the powerful court which made the obiter remark in Jogee and the lack of English criminal law experience elsewhere in the Supreme Court.

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Anonymous

You must be top bantz down the pub

(3)(14)

Pepe Macht Frei

Banter is a sexist, racist, misogynist and imperialist construct perpetuated by cishet white men in order to marginalise and oppress queer, plus size refugee transwomyn of color.

(6)(5)

Anonymous of Counsel

Sounds like a cop-out to me, but what do I know?

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Honey

You have the monopoly on useful ina’emation-frrnot monopolies illegal? 😉

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Litevsky of the Grund Norms

One should have expected the Bengal Lancers. There is a grund norm called Justice, universally depicted as a set of scales. Those who would call themselves lawyers ought to know the grund norms before commenting. An alternative terminology is the overriding objective.

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Pepe Macht Frei

Justice is a sexist, racist, misogynist and imperialist construct perpetuated by cishet white men in order to marginalise and oppress queer, plus size refugee transwomyn of color.

(2)(3)

Merlin of the Grund Norms

I have been unable to transcend Greek Knowledge herein, wizened of Egyptian knowledge thereof, so let me revert:
who invented the scales?
who invented the lever and fulcrum?
who invented the crane?
In the hall of Ma’at.
Learn and discern the grund norms , for’tis the Woe of man that he forgets.
– Merlin the Magician

(2)(2)

Anonymous

It was pretty obvious when Jogee was decided in the Supreme Court that few PAL cases were going to get quashed and re-tried. If foresight of murder (or other crime) is evidence of intent to assist or encourage, any moderately clear foresight is likely to sink an appeal.

Quite right too.

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Lal of Bengal Lancers

A compos mentis Anon comment! Well done Anon of 1255. So how come these Bengal Lancers pushed these hopeless applications? Why would any compos mentis lawyer , yeah even QCs take these cases?
How many will try and blag it in the House of Lords , or whatever it’s called now and where’s the money coming from?

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Dindu nuffin (doin' loyfe)

Dis iz a outrage!

Wot about ma yuman rahts, man?

Ah woz jus dere, innit?

It were ma mate wot dun it.

Ah woz jus bayin’ for blood wiv da utha animals, innit?

Lemme out, now man!!!

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Garnet

Many people are serving life sentences because they were in the wrong place at the wrong time. The law was faulty and all cases which included foresight should be revisited. The substantial injustice is that the judges presided over this error for 30 years

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Anonymous

This post has been removed because it breached Legal Cheek’s comments policy.

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