Jogee: Joint Enterprise & Retrospective Effect

The judgment of the Supreme Court in R v Jogee [2016] UKSC 8 is out. The Court held that for a secondary party to be guilty of an offence, he or she must intend to assist or encourage the principal. It will no longer be enough, as had been previously held, for the secondary party merely to foresee that the principal might commit the offence. The correct rule is that, whilst foresight might be evidence of an intention to assist or encourage in the commission of the offence (and indeed it may be important evidence), it is not decisive. 

In other words, the law has been wrongly applied for 30 years. 

So what of previous cases that proceeded under the wrong interpretation of the law? The Supreme Court addressed the issue at §100:

“100. 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 Chan Wing-Siu and in Powell and English. The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years…”

This approach, which puts the importance of finality in criminal cases ahead of the need for the criminal law to be fair, sounds a strong note of caution to those unjustly affected by the “old” law and their families. To succeed, an appellant must be able to show that a “substantial injustice” has occurred. That is a nebulous, and perhaps deliberately vague concept, which affords the Court of Appeal a very broad discretion. Nevertheless, some steer is given as to where the line may be drawn by the observation that in many cases the application of the “old” law will not have been important to the facts of the case (in other words, the offender would have been convicted regardless). On the other side of the coin, where it can be shown that the application of the “old” approach was important on the facts, such that a correct application of the law might have produced a different result, then the conviction could be quashed. The challenge for appeals lawyers is to meet that threshold.

Postscript: Since I posted this piece, my chambers colleague Mark George QC has written an excellent piece questioning whether the Supreme Court’s approach is correct. Mark notes that the cases cited by the Court all relate to the interpretation of the meaning of various Acts of Parliament (“change in the law cases”), as opposed to cases involving a misinterpretation of the common law. Mark further notes that the Supreme Court placed substantial reliance on the case of Fletcher [2007] 1 WLR 3262, in which the Court of Appeal distinguished change in the law cases from cases such as Bentley [2001] 1 Cr. App. R.

In Fletcher, the Court suggested that the conviction in the infamous Bentley case was quashed only because the summing up had been unfair. The decision did not depend on a legal view of the principles governing joint enterprise. As regards the outcome in Derek Bentley’s case, that is correct. The ratio of Bentley was that the summing up was unfair. The Court held that the direction on joint enterprise was, if anything, favourable to Mr Bentley. Nevertheless, in setting out the applicable principles, Lord Bingham said (§4):

“Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier. In undertaking that task we conclude…
…(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood”.
 The fact that the appeal in Bentley did not ultimately turn on this principle is nothing to the point. The Court of Appeal in Fletcher failed to recognise the principle, focussing only on the outcome on its particular facts. This could mean that – in turn – the Supreme Court’s approach could be open to challenge.

Wiki-Justice: Should Judges be Allowed to Carry Out Internet Research?


A Judge’s job is to adjudicate impartially on a dispute between the parties in the case before him. It is not to advocate the case for either.

So began the judgment of Mr Justice Langstaff in NHS Trust v Sanders, 17 October 2014 (unreported).

In that case an employment tribunal, having retired to consider its verdict, decided to look on Wikipedia to see whether the dosage of anti-depressants that she was taking helped decide her claim for disability discrimination. The tribunal returned into court to declare the outcome of its research which allowed, in principle, the parties an opportunity to respond.  However, the President of the employment appeals tribunal was not impressed (§26):

 “…it is obvious…that the Internet may be an unreliable source. It is obvious because what is put on the website is rarely vouched by an author; the date of it may be difficult to obtain; there may not be the balance which there needs to be if the matter is objectively to be determined; and particularly in respect of medical or medicinal matters, entries are frequently overlaid by the commercial considerations of those involved in the lucrative trade in remedies. All of this gives rise to considerable risk in drawing any firm conclusions from such material”.

The EAT drew a parallel with the position with juries in criminal trials (§34):

“In accessing the Internet, it did what in our view it should not have done. In the criminal courts…jurors…are reminded at the start of every trial that they should make their decision upon the evidence which is put before them. That is why, having given an oath to do that, they may be guilty of contempt of court as these cases show if they access the Internet to attempt to uncover relevant material. The danger is that the prosecution and defence simply do not know what the information they have received which might influence their decision”.

But can a distinction not be drawn between a professional tribunal and a lay one? Certainly so, according to Judge Richard Posner of the 7th Circuit Appeals Court in the United States. In Rowe v Wilson, he robustly defended his entitlement to conduct internet research into the medical effects of Zantac, in a case where a prisoner had been refused the drug, and a prison doctor said he no longer needed it. His judgment was indulgent (Posner is a controversialist – some of his other work is here), but very entertaining:

“There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross-examination, but is there no room for anything in between? Must judges abjure visits to Internet web sites of premier hospitals and drug companies, not in order to take judicial notice but to assure the existence of a genuine issue of material fact that precludes summary judgment? Are we to forbear lest we be accused of having “entered unknown territory”?…Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit? This is not the case in which to fetishize adversary procedure in a pure eighteenth-century form, given the inadequacy of the key defense witness.”

Of the two other judges, Judge Rovner sidestepped the issue, but Judge Hamilton took a strongly opposing view:

“The ease of research on the internet has given new life to an old debate about the propriety of and limits to independent factual research by appellate courts. To be clear, I do not oppose using careful research to provide context and background information to make court decisions more understandable. By any measure, however, using independent factual research to find a genuine issue of material, adjudicative fact, and thus to decide an appeal, falls outside permissible boundaries. Appellate courts simply do not have a warrant to decide cases based on their own research on adjudicative facts. This case will become Exhibit A in the debate…”.

A recent example from our jurisdiction was the case of Kevin Thakrar v Secretary of State for Justice, 31 December 2015 (unreported), a case from the small claims court. It is interesting for a number of reasons (and hence on bailii), not least the judge’s stinging criticism of the government’s lawyers (see paragraph 7).

Mr Thakrar, a prisoner, claimed for damage to his property caused by prison officers, and for certain other items that were lost. There was a dispute as to quantum (the appropriate amount of damages), and the government’s lawyers had carried out some research on Amazon to ascertain the current market value of the items (which included good old-fashioned CDs and a stereo, since prisoners can’t access music downloads) . Sceptical as to either side’s valuations, the judge checked for himself. It appears that where he could not achieve the same Amazon results as the government’s lawyers, he accepted the claimant’s estimated valuation.

Was this approach permissible? On a practical level the judge is beyond criticism. He was faced with government lawyers who he had found less than helpful. The case was decided on the papers (by agreement) so there was no cross-examination. The claimant (who was unrepresented) is in a high-security prison so cannot access the internet to carry research of his own.

Nevertheless, on a strict application of the approach taken by Mr Justice Langstaff, the judge’s approach was impermissible. He was not allowed to “enter the arena” by gathering evidence that was not put before him by the parties to the case. Perhaps, adopting the approach taken by Judge Hamilton in the US case, a middle-line can be drawn? Since the question of damages was not decisive of the claim, then it arguably falls the right side of the line.

It is noteworthy that in both the Thakrar case and the American case the claimants were prisoners and so, as Judge Posner put it, helpless to contest the evidence. One theoretical solution might be for the Court to instruct its own expert. But quite apart from escalating the costs of the claim (the Thakrar claim was worth just a few hundred pounds), the Court Service would never pay for such a report, and neither would anybody else.

In the circumstances, the constrained use of the internet by a professional tribunal, in an appropriate case, and regulated by an opportunity for the parties to comment and reply, would surely be a better (and more cost effective) means of achieving a just outcome.  It could not create any serious unfairness, and would prevent unscrupulous parties taking advantage of unrepresented ones. Wiki-Justice need not be so bad. 



Transgender Prisoners: A Simple Solution?

The case of Tara Hudson is causing a storm today, and not without justification. Tara, who has lived as a woman for the duration of her adult life, has been allocated to HMP Bristol, a category B “local” prison, to serve a 12-week sentence for assault. The decision in her case seems wrong. It has been suggested that the Prison Service’s policy lacks clarity. That is incorrect. The policy is published on the MoJ website, and says (as relevant):

“4.1 Prison Rule 12(1) provides that women prisoners should normally be kept separate from male prisoners.

4.2 In most cases prisoners must be located according to their gender as recognised under UK law. Where there are issues to be resolved, a case conference must be convened and a multi-disciplinary risk assessment should be completed to determine how best to manage a transsexual prisoner’s location. See Annex D for more details”.

 Annex D then says:

“D.1 Some transsexual people will be sufficiently advanced in the gender reassignment process that it may be appropriate to place them in the estate of their acquired gender, even if the law does not yet recognise they are of their acquired gender. In such cases establishments may wish to seek guidance from the Women’s Team.

D.3 The case conference should review the prisoner’s individual circumstances and make a recommendation to the relevant senior manager above establishment level who will make the final decision”.

So, a perfectly satisfactory system exists that is capable of producing the right result in cases such as Tara’s.

So why then has she ended up at HMP Bristol? The answer lies in the fact that no decision is taken before the prisoner is received at the prison. Such procedures are often justified by the fact that decisions should be taken at a local level. But this is not a good example of such a circumstance. The question of whether Tara is entitled to be regarded as a woman is not a local issue, or one that should be subject to the discretion of the individual governor. True it is that there must necessarily be some discretion involved, but why could the decision not be taken before the prisoner is sentenced? It is recognised that it will be a breach of Article 8 ECHR for the Court to make no enquiry into the circumstances of an offender’s children before sentencing. That must apply equally here. There is no reason why the “case conference” could not take place before sentencing, as part of the pre-sentence report process. It would impose a minimal administrative burden. It would ensure that those such as Tara do not have to be subject to what may be a time-consuming process, and therefore subject to the type of unpleasant abuse that she has apparently suffered. It is a simple solution which, as with many things, seems to have passed the MoJ by.

Pants, Pizza, and Purposeful Activity

Stuart Horner today abandoned his rooftop protest at Strangeways prison. After 60 hours, sometimes in his underpants, he came down on the promise of a pizza and a coke (as yet there is no confirmation that he received them; nor any indication of the topping). Horner’s protest has attracted widespread media attention: not because of the issues he sought to raise, but rather because the images of the iconic Victorian rooftops evoke the Strangeways Riots. Since the riots, Strangeways has been rebranded as HMP Manchester, but the authorities have long since realised that whilst they could change its name, they could not erase its history.

Programme Name: Strangeways - Britain's Toughest Prison Riot - TX: 01/04/2015 - Episode: Strangeways - Britain's Toughest Prison Riot (No. n/a) - Picture Shows: April 1990. Riot at Strangeways prison, Manchester - “prisoners on the prison roof” - (C) Rex - Photographer: Unknown
Prisoners rioting en masse at Strangeways, April 1990
Stangeways Horner
Stuart Horner cuts a lonelier figure, September 2015

Horner declared that he was protesting against prison conditions; most notably that he is confined to his cell for 23 hours each day. With the budget cuts at the Ministry of Justice, this is more common than ever. In the ordinary run of things prisoners will be locked up during the evening and night time, but will be “unlocked” during the day-time to access work, education, and training. However, those who are not involved in those activities, whether through some fault of their own or (more commonly these days) because of a lack of staff and resources, will be locked up for all but one hour each day. Little wonder, perhaps, that Horner maximised his time on the roof until the lure of fast food and a good night’s sleep became too much for him.

I have no idea whether, in truth, Horner was simply sticking it to “the man” rather than mounting a serious protest. But the lack of purposeful activity at HMP Manchester is not an imagined problem. The most recent prison inspectorate report, from November 2014, said that: “Time out of cell had deteriorated, and too many prisoners were locked up during the working day”. Since then the incoming Justice Secretary, Michael Gove, has been making all the right noises about penal policy. He has abolished Chris Grayling’s ludicrous ban on books, and has promised a review of prison education.

Those moves are symbolic, and give encouragement to prison reformers, but a speculative promise of better education is not a great priority for most prisoners. First and foremost they need a prison regime that is fair and humane. It is a noteworthy feature of this case that Horner is serving a 27-year tariff (minimum term) for murder. There are many who will think this is richly deserved. That viewpoint is legitimate, but it is often the result of a misunderstanding of the parole process. It is perfectly possible that a prisoner will not be released at the expiry of his tariff; indeed in my experience it is highly probable. By imposing lengthy punitive tariffs period, rather than trusting the Parole Board, those in Horner’s position are left with little to lose. When his tariff expires in 2040, this protest will be a distant memory. It will not influence the outcome in any way; it may even provoke amusement. That leaves little incentive for somebody in Horner’s position to keep to the rules.

It is highly likely that Horner is a “category A” prisoner, which means that he is ensnared in a Kafkaesque category A system, in which the keys to the gate are held by civil servants at the Ministry of Justice. The Parole Board will never release a prisoner directly from category A, such that he must first convince the “Category A Team” (CAT) that he should be downgraded. In my experience the CAT lacks any of the objectivity of the Parole Board, and is not fit for purpose.  For a prisoner in Horner’s position the CAT will loom large, and whilst his 60 hours might not cost him more time in prison, he is likely to be penalised heavily in terms of privileges, and his ability to progress in the medium term.

If he has succeeded in highlighting the plight of those confined to their cells, and denied purposeful activity, then it might all have been worth it. It might even have all been worth it just for the views across Manchester. But in truth, unless Michael Gove can act quickly on his fine intentions, the protests will surely continue, and the Ministry of Justice’s Dominos account will need regular top ups.

The brilliant Elbow performing Lippy Kids at Blueprint Studios, featuring the iconic Strangeways Tower.

Penal Policy: Will Gove’s Conservative Heart Keep Beating?

Michael Gove has a rather busy in-tray. His brief to oversee the repeal of the Human Rights Act increasingly looks to be a poisoned chalice. His decision to implement a further cut to solicitors’ fees has led to widespread direct action by an increasingly united profession, and has reached new heights. And if that were not enough, he has also to address the ongoing prisons crisis, the existence of which was repeatedly denied by his predecessor in the face of overwhelming evidence to the contrary.

The prison population continues to steadily grow. It currently stands at more than 86,000, with 768 more people in prison this week than at the same time last year. Self-inflicted deaths are at an alarmingly high level, with 83 such deaths last year alone. There have been at least 3 homicides in our prisons already this year. The Harris Review, published earlier this month, provides a devastating assessment of the state of our prisons.  Lord Harris noted that if the aim of prisons is to rehabilitate, then they are an “expensive failure”. He described the prison environment as “grim” and “impoverishing to the spirit”.

Chris Grayling might well have worn those descriptions as a badge of honour. He envisaged “reform” as a revised incentives and earned privileges (IEP) scheme that was far more stick than carrot. The IEP scheme, designed to encourage good behaviour, was created following a recommendation of Lord Woolf in his report into the 1990 Strangeways Riots. But Lord Woolf also recommended that decisions should be taken by prison governors, at a local level, rather than by Ministers. Grayling turned that on its head, bringing in an overly prescriptive national scheme which embraced the simplistic idea that overcrowded, underfunded prisons could reform prisoners simply by making them not want to come back.

Notoriously, Grayling’s IEP policy included a ban on prisoners having books sent in to them by family or friends, which came to be seen as symbolic of his devil-may-care approach to policy-making.  Following a successful judicial review claim, which cost the taxpayer £72,000 in legal fees, Grayling was forced to revise the policy. But he did so to the minimum extent, providing that books could only be sent in through four approved retailers, and that “volumetric controls” would remain, limiting the number of books allowed “in possession” to 12.

Another of Grayling’s flagship policies was a plan to create a super-size “secure college”, intended to hold 320 young offenders at a cost of £80 million. It was widely criticised, including by a number of respected charities, who called the plan “expensive and dangerous”, and suggested that it amounted to “warehousing” of children. Grayling had already spent almost £6 million on this vanity project, and passed enabling legislation in the dying days of the last parliament, hoping to make it happen. 

It is potentially significant, therefore, that in the past few days Michael Gove has decreed an end to the remaining book restrictions, and announced that the secure college project will be abandoned.

So what, if anything, can be read in to these announcements?

The decision to end the restrictions on books is both provocative and symbolic. Grayling had stubbornly refused to do anything more than the bare minimum require of him by law. By ripping the policy up altogether, Gove appears to be signalling a fresh approach to penal policy. Importantly, in announcing the move Gove cited US conservative social policy “guru” Arthur Brooks as a key influence,. Brooks has authored a number of books, including “the Conservative Heart”, which seeks to put forward a compassionate conservative solution to social problems. More notably, perhaps, he has also expressed some pretty liberal views on penal policy, including this interview in which he argued that the US locks too many people up, and locks them up for the wrong reasons, which is hardly the type of rhetoric that David Cameron has produced of late. This must provide some encouragement as to the road ahead, and serves as a counterbalance to concerns that arise from Gove’s previously expressed support for the death penalty.

The decision to abandon the Secure College project is also encouraging, but appears to be more of a pragmatic move. The youth custody population is falling, and the project was an expense that the MoJ could do without. The move does at least show a willingness to ditch some of Grayling’s pet projects when the need arises; but would the position have been the same if policy change meant injecting additional millions from the MoJ’s budget?

If Gove is to implement lasting change, such as that proposed by Lord Harris, it would be seem near impossible to do so whilst maintaining the sort of budget levels that the MoJ is currently operating under. And alarm bells begin to ring further when one considers that, despite fine words about an end to two-tier justice, Gove was quite content to put into effect the latest round of cuts to solicitors’ fees, which only serves to widen the gap between the first and second tiers. This certainly therefore seems a bad omen, and calls for caution over whether Gove’s conservative heart, now worn on his sleeve, can keep beating in the face of MoJ budget constraints. 

Nevertheless, and putting aside the legal aid question, on penal policy there is cause to be hopeful and, yes I may as well say it, at least he’s not Chris Grayling.

Proving Innocence: Miscarriage of Justice Compensation Claims Dismissed

The Divisional Court has today rejected judicial review claims by Victor Nealon and Sam Hallam: [2015] EWHC 1565 (Admin). The men, who were both wrongfully convicted and spent many years in prison, argued that the new scheme for compensating victims of miscarriages of justice offends the requirements of Article 6(2) of the European Convention on Human Rights (the presumption of innocence). In order to obtain compensation they were required to show that the new facts which led their convictions to be quashed proved that they are innocent.

The issue has proved controversial ever since Charles Clarke abolished the ex gratia payment scheme (and possibly before). The initial problem was identifying what was meant by the term “miscarriage of justice” in s.133 of the Criminal Justice Act 1988 (which provides for the compensation scheme). It had been thought this argument was put to bed by the Supreme Court’s decision in R (Adams) v Secretary of State for Justice [2011] 2 WLR 1180, in which the Court held (by a 5-4 decision) that a “miscarriage of justice” involves cases where the evidence against the person was so undermined that no conviction could possibly be based upon it. It rejected the argument that the test was limited to cases where the new facts proved the person’s innocence.

In response, parliament introduced s.175 of the the Anti-Social Behaviour Crime & Policing Act 2014, so that the definition rejected by the Supreme Court became the legal standard for establishing a “miscarriage of justice”. In the Adams case, 3 of the 5 in the majority also held that Article 6(2) ECHR had no part to play in all of this. The justices in the minority agreed, although its reasons for doing so were different. Mr Nealon and Mr Hallam argued that the view of the justices on Article 6(2) did not bind the lower court, as the minority view resulted from a line of reasoning that was otherwise rejected by the majority (that s.133 required clear proof of innocence). It did not therefore, they said, form part of the ratio (the rationale) of the decision.

The Divisional Court disagreed, and considered itself bound by  to reject the claims. The matter is complicated further by the fact that since the Supreme Court’s decision, the European Court of Human Rights (ECtHR) took a different view on the applicability of Article 6(2). In Allen v United Kingdom [2013] 36 BHRC 1, which concerned a decision under the old test, the Grand Chamber held that compensation decisions of this type were (at least in theory) justiciable under Article 6(2). Although it dismissed Ms Allen’s claim, it indicated that the outcome would likely have been different had Ms Allen been subjected to a “clear innocence” test.

In the spirit of the type of dialogue that sometimes gets lost in the argument on the Human Rights Act, the Divisional Court disagreed with the ECtHR. It held that, even if it was not bound by the Supreme Court’s decision, it would have rejected the ECtHR’s reasoning . It considered that the Supreme Court was right to find that compensation claims of this type are in a special category (“lex specialis”), and do not engage Article 6(2) (thus reminding us, once again, that the Supreme Court is the final arbiter of human rights in the UK, and that the Courts do not slavishly follow Strasbourg rulings). The Court endorsed remarks by Lord Phillips in Adams that the application of Article 6(2) in the present context is “one of the more remarkable examples of the fact that the Convention is a living instrument”. The riposte to which is, perhaps, that there is little surprising about the proposition that requiring a person to establish his innocence offends the presumption of innocence. The controversy lies in whether the compensation application is sufficiently linked to the criminal proceedings to invoke Article 6, which is concerned with the right to a fair trial. There is now a divergence of opinion between the UK courts and Strasbourg on that issue.

Fundamental to the Divisional Court’s reasoning was its acceptance of the Secretary of State’s submission that an applicant for compensation is not required to prove his innocence. That, it said, is because the test is whether the new fact establishes the person’s innocence, not whether in fact he is innocent. Although this was a distinction that Lord Phillips made in Adams, it was not one that the other justices had made, and the claimants submitted that it was not one of substance. Circumscribing the method by which innocence must be proved, they said, did not alter the fact that innocence must still be proved. Nevertheless, the Court found that there was a proper distinction to be made. Applying that reasoning, it held that the new test does not offend Article 6(2) ECHR.

The claimants have sought permission to appeal the decision, including on the grounds that the Supreme Court should have the opportunity to consider the effect of Allen v United Kingdom. Some, including Lord Hope, have suggested that the Justice Secretary Michael Gove needs to look at this issue again. In the meantime, those who have been wrongly convicted are likely, absent the very clearest proof of innocence, to go uncompensated by the state.

Legal blog edited by Matt Stanbury, Barrister at Garden Court North. Commenting mostly on criminal and public law. If you didn't arrive via Twitter, I'm on there too: @thepubliclawyer