Joint enterprise law upheld in test case

Test case fails despite coming after a Supreme Court ruling suggested that hundreds of convictions were unsafe because the law had been wrongly interpreted for more than 30 years

(AFP/Getty Images)

Three leading judges have refused to overturn guilty verdicts in the first test case of the “joint enterprise” law since it was called into question by a Supreme Court ruling.

In February the Supreme Court had ruled that the law which has allowed people to be convicted of murder even if they did not inflict the fatal blow has been wrongly interpreted for more than 30 years.

This raised the possibility that hundreds of convictions could be unsafe.

At the heart of the Supreme Court ruling was the so-called "foresight principle" in joint enterprise cases. Used over the years to tackle gang violence, defendants have been convicted if they could have foreseen that a murder or violent act was likely to take place.

But the Supreme Court ruled that the foresight rule was being misinterpreted and juries should instead decide "on the whole evidence" whether a person had the "necessary intent" to join in the commission of a crime.

The Supreme Court ruling paved the way for a number of men convicted of group attack murders to bring a test case to the Court of Appeal, hoping to see their convictions quashed.

But on Monday three senior Appeal Court judges upheld the convictions, signalling the defeat of the test case.

Lord Chief Justice Lord Thomas, who heard the cases with Sir Brian Leveson, and Lady Justice Hallett, was greeted by cries of protest by supporters of the men sitting in the public gallery as he gave decisions in the individual appeals.

Speaking outside court ahead of Monday’s ruling, Gloria Morrison, the co-ordinator of the grassroots group JENGbA (Joint Enterprise Not Guilty by Association), had said: “It makes no sense to find people guilty of murder based purely on foresight alone - the idea that you know what someone is going to do.

“It is totally illogical and it has led to juries coming to conclusions based on assumptions.”

But the judges threw out challenges brought by 13 individuals involved in six separate crimes.

Lord Thomas said the cases were not connected "save for the need to consider, individually for each case, the impact on convictions - mainly, but not entirely, for murder - of the decision of the Supreme Court on February 18.

The first of the test cases concerned the safety of the conviction of Asher Johnson, his brother Lewis, and Reece Garwood, all in their 20s, who were jailed for life for murdering Thomas Cudjoe in an attack on a garage forecourt near a pub in Ley Street, Ilford, east London, in November 2012.

A fourth convicted man, Jerome Green, was seen in CCTV footage holding a knife and apparently stabbing Mr Cudjoe as he sat in the driver's seat of a Ford Focus.

Lawyers for the Johnson brothers and Garwood told the court there was no evidence of common enterprise between them and Green, the CCTV did not show they had been involved in a planned attack, and there was no evidence that they had given verbal encouragement to Green to carry out the killing.

Announcing the decision in that case, Lord Thomas said that, "given the jury's findings of fact, their verdicts would have been no different" after the Supreme Court ruling.

The Court of Appeal was "satisfied that there was no injustice, let alone substantial injustice".

The second case heard by the judges challenged the safety of the convictions of Tyler Burton and Nicholas Terrelonge, who were found guilty of murdering young father Ashley Latty in a group attack after a birthday party in Dagenham, east London, in May 2014.

Lord Thomas said a direction given to the jury based on the Supreme Court judgment "would not have made a difference to the jury's verdicts". The convictions, he concluded, "were and are safe".

Before announcing the test case decisions, he said it was "important to emphasise" a particular paragraph in the ruling of the Supreme Court.

The justices said 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 previously laid down.

Lord Thomas said: "As the Supreme Court stated ... a long line of authority clearly establishes that if a person was properly convicted on the law as it then stood, the court will not grant leave (to appeal) without it being demonstrated that a substantial injustice would otherwise be done.

"The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law.

"The requirement takes into account the requirement in a common law system for a court to be able to alter or correct the law upon which a large number of cases have been determined without the consequence that each of those cases can be reopened.

"It also takes into account the interests of the victim, or the victim's family, particularly in cases where death has resulted and closure is particularly important."

Lord Thomas said it was for an applicant for "exceptional leave to appeal out of time" to demonstrate that a substantial injustice would be done, which was a "high threshold".

He added: "In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference."

It was not material to consider the length of time that had elapsed since conviction when deciding on whether or not to grant leave: "If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice."

JENGbA had estimated that the cases of some 700 individuals could have been affected by the Appeal Court ruling.

Outside court, Ms Morrison said: "Today's Court of Appeal judgment is a huge disappointment, not just for all the families involved but all those wrongfully convicted ever since the law took a 'wrong turn' over 30 years ago.

"It our understanding that the applicants are taking legal advice on whether this judgment can be appealed. JENGbA intends to support them in every way we can."