Johnson & Ors, R. v (Rev 1)

GENERAL APPROACH

This group of cases are 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 18 February 2016 in R v Jogee, Ruclclock v The Queen [2016] IJKSC 8. [2016] 2 WLR 681 ("Jogee") in relation to the issue of joint enterprise as a consequence of the reversal of the pre-existing law laid down in Chan Wing-Siu v The Queen [1985] AC 168 and R v Powell, R v English [1999] 1 AC l.

Had the change of law identified in Jogee been set out in statute (as opposed to judicial decision of the Supreme Court), there would be no question of re-visiting any such convictions: the new law would apply only prospectively. On the basis that the Supreme Court identifies the law both prospectively and retrospectively, however, review requires consideration of the concept of safe conviction as well as the impact of late (out of time) appeals in circumstances where it is not suggested that judges at trial did not faithfully follow the law as then articulated by the House of Lords but whose directions, as a consequence of Jogee, no longer comply with what the present common law dictates.

In approaching appeals in respect of convictions prior to the decision in Jogee consideration has to be given to the extent to which the verdict could only properly be interpreted in accordance with the common law principles of joint enterprise (two or more people setting out to commit an offence, crime A, or intending to encourage or assist in the commission of that offence) rather than parasitic accessory liability. As Jogee explains (at [2]), the latter arose (following Chan Wing-Siu v The Queen and R v Powell, R v English) where, in the course of that joint enterprise to commit crime A one of the co-adventurers DI, commits another offence, crime B: the others involved in the original joint enterprise were guilty as an accessory to crime B if they or any of them had foreseen the possibility that DI might act as he did, As Lord Hughes and Lord Toulson go on to explain, the law, as then formulated, was that:

In that context, for murder, the law also required consideration of whether a weapon used to cause death was "fundamentally different" from any weapon of which D2 had knowledge although, in Powell & English, Lord Hutton added that if the contemplated weapon was "different to. but as dangerous as" the weapon used, D2 should not escape conviction if he foresaw that the different weapon might be used to kill (or, presumably, cause serious bodily injury): see [1999] 1 AC at 30. The effect of Jogee, however, is that save when death is caused by some overwhelming supervening act,

Thus, by focussing on intention (or conditional intention, that is to say, in circumstances in which D2 expressly or tacitly agreed to a plan to commit crime A which included a common purpose or common intent, if it came to it, to commit crilne B), the knowledge of a weapon (being a critical ingredient of parasitic accessory liability under Chan Wing-Siu v The Queen and R v Powell, R v English) remains highly material in relation to the inference of intention. After Jogee, however, even if the facts of any individual case raise concern as to the safety of a conviction for murder, a conviction for manslaughter does not depend on knowledge of the weapon. The test (articulated at [96]) is put in this way:

In considering the effect of the decision in Jogee on prior convictions it is necessary to distinguish between appeals brought within the time limit of 28 days specified in se18(2) of Criminal Appeal Act 1968 and those brought outside that time.

In relation to appeals brought out of time, leave is required and an extra hurdle is introduced into the processe In some cases, the court could have an inherent power to limit the retrospective nature of its decisions (see Cadder v HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601 and the cases cited at [58], [61] and [100] to [103]). Indeed, in that case, the decision generally to allow those being questioned access to legal advice was specifically limited when applying the law of Scotland by the principle of legal certainty such that it was made clear that cases which had been finally determined (without such access having been granted) should not be reopened.

The judgment in Jogee set out the position in a passage (at following that set out at 8 above in these terms:

As Lord Toulson and Lord Hughes made clear, the position has been repeated and emphasised in more recent decisions: see Hawkins to which we have referred and Cottrell and Fletcher [2007] EWCA Crim 2016; [2007] 1 WLR 3262 (Sir Igor Judge P) together with the cases reviewed in R v R [2006] EWCA Crim 1974; [2007] I Cr App R 150.

Furthermore, the Criminal Cases Review Commission must make its assessment of alleged miscarriages of justice in the light of the approach of this court. Thus, s.16C(1) of the Criminal Appeal Act 1968 (inserted by s.42 of the Criminal Justice and Immigration Act 20()8) applies the provision to appeals following a reference by the Criminal Cases Review Commission and goes on:

Thus, for convictions not brought in time (including second appeals brought through the Criminal Cases Review Commission) it is necessary to identify the considerations the court will take into account in determining whether there has been a substantial injustice. This has been the subject of argument in the present cases. The applicants submitted that we should look at each case and, in particular, at the merits of each case, extending time where the application of the law set out in Jogee might have made a difference to the verdict.

The case, at its highest, was argued in written submissions by Tim Moloney QC and Jude Bunting on behalf of the interveners Joint Enterprise: Not Guilty by Association ("JENGbA"). a non-profit organisation comprised of families where a member is in custody in a case where it is said that the law of joint enterprise was central to the conviction. Guilt by association was, of course, never enough to justify a conviction for murder (nor. indeed, in relation to any other criminal offence) but the arguments advanced include the temperance of public policy in favour of finality because of the unique nature of the mandatory sentence for murder with its lifelong consequences, along with the qualitative and quantitative differences in sentences for murder and manslaughter: such an approach, it is said, is consistent with public and academic opinion.

It is thus argued that the authorities suggest that it is sufficient to justify exceptional leave to appeal to have suffered some adverse consequences as a result of a conviction

In our view, as was accepted, the fact that there has been a change in the law brought about by correcting the wrong turning in Chan Wing-Siu and R v Powell, R v English is plainly, in itself, insufficient. As the Supreme Court stated at paragraph 100, 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 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 re-opened. 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.

It is important to emphasise that the Supreme Court expressly approved the approach taken by this court in Cottrell. At paragraph 43 of that case, this court referred to the judgment of Murray CJ in the Supreme Court of Ireland in A v Governor of Arbour Hill Prison [2006] 4 IR 88.

This decision of the Supreme Court was based on the constitutional arrangements which apply in Ireland. Accordingly, the analogy with change of law cases in this country is not complete. That said, the decision provides valuable illumination of the need to emphasise that appeals against conviction in change of law cases involve significant social and public considerations which go well beyond a narrow focus of an individual conviction."

Thus, it will be for the applicant for exceptional leave to appeal out of time to demonstrate that a substantial injustice would be done. That is a high threshold. For example in R v Mitchell the court said at page 357:

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. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct. It is not, however, in our view, material to consider the length of time that has elapsed, 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.

We invited submissions on whether it was appropriate for the court to take into account the observations of the judge when sentencing in determining the factual basis for the conviction. In our view, the court should not do so. Its duty is to examine the matters before the jury and the jury's verdict (including the findings of fact that would have been essential to reach such a verdict). Such an approach is consistent with the approach the court took in relation to observations made by judges in life sentence cases when it was their practice to make reports to the Home Secretary for the purposes of the determination of the tariff: see Jones [1998] 2 Cr App R 53 and Dillon [1997] 2 Cr App R 104.

If exceptional leave is granted, the court will then, and only then, consider the question as to whether in the light of the direction given to the jury the conviction is unsafe. It was submitted by Mr Moloney QC that the observations of Hughes LJ at paragraph 40 of R vR and others [2006] EWCA Crim 1974, [2007] 1 Cr App R 10 in respect of the practice to be followed in applications for leave to appeal after the reinterpretation of a statute by the House of Lords in R v Saik meant that the consideration of substantial injustice should begin with the primary consideration of whether the conviction should now be regarded as unsafe. It is clear from what Hughes LJ said and from the authorities cited, that the task of the court is first to determine whether there may have been a substantial injustice which involves the wider considerations to which we have referred. Having said that, if the threshold required to justify exceptional leave to appeal is reached, it is likely to be difficult to conclude that the conviction remains safe.

Although in our judgment, the considerations we have set out will govern the large majority of appeals, there are cases where appeals or applications for leave to appeal ^orounds were pending,

One type of case is where an application for leave to appeal was made within 28 days on non-Jogee grounds and either granted (as in the appeal of Lewis and Asher Johnson) or refused, but renewed to the Full Court, as in the appeal of Garwood. Subsequently, an application was made to add grounds based on the decision in Jogee. It was submitted that exceptional leave was not needed or alternatively leave should readily be granted as these were cases where there had been no finality and thus the considerations of establishing substantial injustice did not arise. In such cases, leave to put forward the new grounds is required. As we have set out above, the

A second type of case is where the application was made within 28 days on non-Jogee grounds, but the issue of leave to appeal not determined by either the Single Judge or the Full Court, as progress in the case was adjourned by the Registrar pending the decision in Jogee. An application was then made on Jogee grounds.

The appeal of Terrelonge and Burton is an illustration of such a case, but with the particular feature that counsel in the case drew the attention of the trial judge to the fact that the Court of Appeal had certified a question for the Supreme Court in the appeal of Jogee (see paragraph 72 below). Counsel was therefore, in effect, asking the trial judge to reserve the question as to the correctness of the decision of the Court of Appeal in Jogee. In such circumstances, it is just to allow the issue to be argued: see paragraph 84 below.

The final scenario is one in which one appellant appealed on Jogee grounds in time and a co-defendant (who did not) then seeks to appeal on similar grounds out of time. Given that the appeal in time has to be determined in accordance with the usual principles (unhampered by the need to seek exceptional leave), the potential substantial injustice as between defendants is likely, depending on the circumstances, to require that a co-defendant who seeks leave should be permitted to argue his appeal.

THE SPECIFIC APPEALS

We turn to the individual cases. In some of the applications and appeals, there were applications or appeals against sentence. Save in the first case, where we were asked simply to correct the error of omitting the time spent on remand that was to count against sentence, we have adjourned all issues relating to sentence and other relief.

JOHNSON, JOHNSON, GARWOOD AND GREEN

It was not in issue that the actual killing of the deceased was the consequence of his having been stabbed by Greens His defence had been self-defence in the course of defending himself when the deceased produced the knife and, alternatively, loss of control. The jury by their verdict plainly rejected these defences.

The appellants Lewis and Asher Johnson originally sought leave to appeal against conviction in August 2013 within the prescribed time on grounds unrelated to the decision in Jogee (see paragraphs 45 and 47 below). They were granted leave on those grounds by the single judge. In April and May 2016, they sought leave, out of time, to add to their grounds of appeal a ground based on the decision in Jogee. Garwood also applied for leave to appeal in August 2013 on grounds unrelated to Jogee (see paragraph 48 below) but was refused leave. He applied within the requisite time to renew that application to this court. He sought leave, out of time, in March 2016 to add a ground based on the decision in Jogee.

In August 2010, Reice Okosi, a known associate of Asher Johnson, Garwood and Mitchell, was shot and left paralysed. In June 2011, the deceased was tried and acquitted of being responsible for the shooting.

On 2nd November 2012, the appellants and their co-accused went to the Bell public house in Ilford. A group of the deceased's friends chose to visit the Bell that same night. The deceased drove them there, but refused to join them for fear of encountering friends of Reice Okosi. CCTV footage showed Asher Johnson and Jerome Green standing outside the Bell, apparently interested in his car and trying to make out the identity of its driver. Inside the Bell they asked Kabi Nathan "Do you know that guy?" Asher Johnson, Green and Mitchell went back outside shortly afterwards and pointed to where the deceased's Ford Focus had been.

When the deceased returned to collect his friends at about 03:14, with him in the back of the car were Nicole Allan-Chinamana and Chloe Brown. He parked on the nearby Shell garage forecourt. CCTV showed further interaction between the appellants and Kabi Nathan inside the Bell at about this time, during which Kabi Nathan may have innocently alerted the appellants to the fact that the deceased was outside in the care

What followed was captured on CCTV footage of the two minute period between 03:15, when the first of the attackers arrived at the car and 03:17, when the deceased collapsed and the first 999 call was made. The evidence had been carefully analysed and presented. We have very carefully considered the CCTV and the analysise What it showed was as follows:

The deceased had fourteen stab and slash wounds on his body and several areas of bruising. The two most serious injuries were a stab wound to his lower left chest which had punctured his lung and a stab wound to his right thigh which had severed the femoral artery and vein.

Days later the accused were arrested and in interview they all declined to answer any questions put to them.

The prosecution relied principally upon the CCTV footage and the evidence of eye witnesses. Additionally, against Garwood they relied on what was said to be a confession to murder in the form of a letter written by Garwood and sent to Lewis Johnson from Feltham Young Offenders' Institute on 19 March 2013. It read as follows:

Although the prosecution referred to the law on joint enterprise as it then stood, preJogee, namely that the prosecution only had to prove that each of them knew Green had a knife and realised he "might — not would - use it intentionally to cause really serious injury their case was that each of the accused in fact planned and participated in an attack knowing a knife would be used with intent to inflict at least really serious injury.

The defence case was that the events at the petrol station had nothing to do with the shooting of Okosi, but this was a drugs deal that went wrong. It was claimed that the two Johnson brothers and the co-accused Mitchell approached the deceased in his car in the early hours to sell him drugs. The deceased wrongly feared he was about to be attacked and started to kick and punch them. As Asher Johnson sought to defend himself, the deceased reached for and got hold of a knife which was eventually turned on him by Green who used it in self-defence.

The judge handed the jury a Route to Verdict, as well as written Legal Directions and a Chronology. The first set of seven questions related to the guilt/innocence of Green as the principal. In terms of directions on joint enterprise there were 4 questions framed as follows:

The appellant Lewis Johnson had been granted leave, as we have set out, to argue the following "non-Jogee•• grounds of appeal.

Lewis Johnson sought leave to add a third ground, based on the judgment in Jogee, that the judge wrongly directed the jury that Lewis Johnson could be convicted of murder on the basis of foresight that Jerome Green might commit murder in accordance with Chan Wing-Siu v The Queen.

Asher Johnson had been granted leave to advance similar "non-Jogee grounds' He too sought leave to add the Jogee ground and an additional ground that the judge erred in failing to deal with the issue of withdrawal.

Reece Garwood renewed his application for leave to appeal conviction on the grounds that the judge erred in admitting the 'prison' letter. It should have been excluded under s. 78 of the Police and Criminal Evidence Act 1984 on the ground that its prejudicial effect far outweighed any probative value it might have had. It was not a confession, but simply the expressions of a twenty year old charged with murder speculating about his options. He admitted presence and participation in violence, Nothing in the letter went to the primary issue in his case which was whether he knew any of his co-accused had a knife.

He sought leave to add a second ground of appeal based on the judgment in Jogee to the effect that the judge misdirected the jury as to the basis on which they could find a secondary party guilty of murder. Had the jury been directed in accordance with the judgment in Jogee that •if a person is a party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, he will not be guilty of murder but guilty of manslaughter-. the verdict in Garwood's case may have been different.

Lewis Johnson, Asher Johnson and Green all applied for an extension of time of approximately 18-20 months and leave to appeal sentence on the basis the judge failed to state that the period that the appellant spent in custody (namely 308 days) should count toward his minimum term of imprisonment. Garwood has leave to appeal on the same points

Conviction — non Jogee grounds

First, there is nothing in the ground that the judge introduced alternative routes to verdict that had never been the prosecution case. All trial counsel were content with the original directions that the judge gave. After a short discussion on the jury note where counsel for Lewis Johnson and Asher Johnson made submissions to the judge, the judge slightly expanded the direction he gave in response to the jury note, It appears from the transcript that the result of the discussion resulted in a direction which appeared satisfactory to all. In any event the judge did not misdirect the jury or fundamentally alter the way the case had been put. The expanded version was always a possible route to verdict and one of which experienced trial counsel were no doubt aware. If any counsel needed more time to assist the judge on answering the jury note they should have pressed the judge for more time.

Second, we do not infer from the jury notes that the jury was deadlocked in relation to Lewis and Asher Johnson. The notes suggest the jury working their way painstakingly through the directions and a considerable body of evidence. Nothing was put before us to suggest anything unsafe about verdicts or any irregularity.

Third, we reject the suggestion that the judge erred in failing to deal with the issue of withdrawal. It was not a live issue and the judge's directions on joint enterprise and common purpose were more than adequate.

The letter sent by Garwood in which he considered the various options in relation to this case was plainly admissible. The question of what weight should be attached to it was a matter for the jury. It was prejudicial only in the sense that it provided some acknowledgment on Garwood's part of his guilt. His counsel had ample opportunity to make the kind of submissions to the jury that she made to us as to his age and the circumstances in which he wrote it.

We infer from the jury's verdicts. that the jury made the following factual findings:

In this case, given the jury's findings of fact, their verdicts would have been no different post Jogee. We refuse leave as we are satisfied that there was no injustice, let alone substantial injustice. The application to add the grounds based on the decision in Jogee is therefore refused

We can deal with the appeal and the applications for leave and extensions of time shortly. Where necessary we grant leave and the extension of time and allow the appeals of each appellant, as he now is, to the extent of ordering that the period of 3()8 days counts towards his minimum term of imprisonment.

On 23 April 2015, at the Central Criminal Court before His Honour Judge Gullick and a jury, the applicants Burton and Terrelonge were convicted of the murder of Ashley Latty on 18 May 2014. Terrelonge had earlier pleaded guilty to attempting to cause grievous bodily harm to the deceased. On 27 April 2015, the judge sentenced them both to life imprisonment with a minimum term of 20 years less time spent on remand.

Terrelonge and Burton applied for leave to appeal in May 2015 within the requisite time. Their application was not considered by the Single Judge, but referred by the Registrar to the Full Court. In March 2016 both sought to add further grounds to the appeal based on the decision in Jogee.

At their trial there had been five co-accused, Oppong was acquitted of murder, but pleaded guilty to attempting to cause grievous bodily harm with intent. Dyer and Joseph were also acquitted of murder, but convicted of attempting to cause grievous bodily harm with intent. Agyeman and Carnegie were acquitted of murder and attempting to cause grievous bodily harm. There was another defendant, Penfold, who was not alleged to be involved in the attack; she was acquitted of perverting the course of public justice.

The convictions arose out of an incident in the early hours of Sunday 18 May 2014. The deceased attended a party held at the Beaver Centre in Dagenham, Essex. It finished at about 05:30. The deceased was standing outside the venue with some friends when he was set upon by a group of men. A fatal attack followed in which the deceased was kicked, punched and stabbed to death. A post mortem examination revealed five stab wounds: two non-fatal to the back, two to the right side of the chest

The prosecution alleged that Terrelonge had a grudge against the deceased, initiated what occurred and recruited others to attack the deceased. This was confirmed to an extent by the evidence of Oppong, Dyer and Terrelonge's cousin, Burton.

The prosecution case that each man at the scene was party to a joint enterprise to attack the deceased with a knife depended to a large extent on CCTV footage analysed by Detective Constable Wren, the prosecution's principal witness. The footage showed:

Analysis of the decease&s injuries, his clothing and blood spatter at the scene indicated that the fatal stab wounds were inflicted at the beginning of the attack when he was confronted by Terrelonge, Burton, Oppong and Dyer and while he was still wearing a grey jumper around his shoulders. Accordingly, there were four potential knifemen: Terrelonge, Burton, Oppong or Dyer.

The CCTV footage showed that Dyer was carrying something in his right hand several seconds after the fatal blow was inflicted. The jury was invited to conclude that it was a knife. Between 05:31:52 and 05:32:49, the defendants left the scene*

Terrelonge did not give evidence. His case was that there was a single knifeman who was engaged on frolic of his own. He had picked up a bottle and handed it to Carnegie: as far as he was concerned, this was to be an attack with feet, fists or a bottle only: he was unaware of a knife. He used the bottle on the deceased after the fatal wound had been inflicted and he would not have needed to arm himself with a bottle if he knew a knife was to be used. His conduct was properly reflected in his guilty plea to attempting to cause the deceased grievous bodily harm. It was suggested on his behalf that Dyer was the lone knifeman.

Burton's case was that he did not know a knife was to be used, he did not at any point see a knife or see that the deceased had been stabbed and was only present to support his cousin, Terrelonge, in a verbal confrontation with the deceased. It then became

The other defendants gave evidence each denying that they were a party to a knife attack.

At the close of the evidence, Mr Lakha QC, for Terrelonge, supported by counsel for Burton, submitted that the jury should be discharged in respect of the murder charge. They complained that it had never been the prosecution's case that Terrelonge was the knifeman and the prosecution had not placed any emphasis on footage that appeared to show an arm motion by Terrelonge towards the deceased. Yet, the prosecution in cross-examining the co-accused appeared to suggest that Terrelonge was the stabber o Mr Lakha QC complained that this amounted to a volte face on the part of the prosecution and undermined Terrelonge's decision not to give evidence based as it was, in part, on the state of the case at that time.

The judge rejected the application. He observed in the course of a detailed and careful ruling:

The judge circulated draft directions on the question of secondary participatiom During the course of oral submissions, the judge's attention was drawn to the certified question in Jogeee Mr Wood QC, for Burton, invited the judge to consider changing his direction from "realised a knife might be used" to "realised a knife would be used". The judge declined to do so. His route to verdict where relevant read:

Terrelonge originally sought leave to appeal against conviction on the following grounds:

As we have set out, he subsequently sought leave to appeal on the basis that the decision in Jogee made the conviction unsafe.

Burton originally sought leave to appeal against conviction on the following grounds:

He subsequently sought leave on the basis that in light of the Supreme Court's ruling in Jogee, the trial judge ^s s directions on joint enterprise were flawed.

Burton's application for leave to appeal sentence on the grounds of disparity has been adjourned.

First, we deprecate the increasing tendency on the part of some advocates to apply to discharge the jury simply on the basis the prosecution has or may have changed its

In this case there was no dramatic change in the prosecution case. The prosecution did not pin their colours to any one mast as to the identity of the stabber. Terrelonge was always one of the four candidates. In any event, we have no doubt experienced Queen's Counsel and junior would have advised Terrelonge on the possibilities of the case against him changing as his co-accused gave evidence. On that basis he took the tactical decision not to give evidence.

Second, there was nothing perverse or inconsistent about the verdicts. The test to be applied is a simple one: have the applicants satisfied the burden on them to establish that no reasonable jury applying their minds properly to the facts of the case could arrive at their conclusions? (per Fanning and others [2016/ EVVCA Crini 550). In our view, a reasonable jury could properly distinguish between the men in the docka The jury was not bound to follow the approach advocated by the prosecution. Here there were differences in the cases and in the evidence against each of the accused. Terrlonge bore the deceased a grudge and recruited the others to attack the deceased. Terrelonge equipped Carnegie with a bottle. Terrelonge's case was that they intended to fight the deceased with fists, feet or a bottle. Burton knew Terrelonge intended a "confrontation" with the deceased. Both Burton and Terrelonge were at the forefront of the attack and both repeatedly assaulted the deceased. Dyer was also there but it is reasonable to assume that when he gave evidence, his account raised a doubt in the minds of the jury whereas Burton did not. Terrelonge did not give evidence.

We infer from the jury's verdicts, that the jury made the following factual findings:

For these reasons, in our judgment, a post Jogee direction would not have made a difference to the jury's verdicts; the convictions were and are It therefore follows that the applications must be refused.

Although we have reached our conclusion on the basis of the safety of the conviction, it is our view that, although leave would have been required to argue the Jogee grounds, it would in the circumstances of the case have been granted if the applicants had shown the conviction was unsafe. That is because, as we have set out at paragraph 27, trial counsel had in fact done what was open to them to reserve the correctness of the law at the trial; it would in those circumstances be unjust to require the applicants to show more than the conviction was unsafe.

MOISES

On 12 February 2016 the applicant Moises was convicted in the Crown Court at Woolwich, before Mr Recorder Evans QC of wounding Jordan Joseph with intent to do grievous bodily harm (count 1) and having a bladed article in a public place (count 3). He was sentenced to six years' imprisonment on count 1 and six months concurrent on count 3. His co-accused offered guilty pleas and were dealt with separately: Kaba pleaded guilty to affray and possessing an offensive weapon (a belt); Bambgboye pleaded guilty to affray.

As this was an application brought within 28 days of conviction on the grounds that the judge misdirected the jury in law in the light of the decision in Jogee, we apply the normal principles in relation to safety as set out at paragraphs 7 to 9 above.

The convictions arose out of an incident on 17 August 2015. The complainant, Jordan Joseph, was with two male associates (Lamin and Wiggan) in Carphone Warehouse in Streatham, south London. At around 16:20:00, five males entered the shop: two unknown males, the applicant, Kaba and Bambgboye, in that order. The complainant Joseph was then stabbed in his arm and buttocks; he was uncooperative in the police investigation and refused to give evidence at trial.

The prosecution case was that the applicant had stabbed the complainant with the knife intending to cause really serious bodily injury or had participated in a joint attack sharing the common purpose of intending to wound the complainant with the intention of causing him really serious bodily injury. It was a planned knife attack in which the applicant was an active and enthusiastic participant,

The case was based primarily on CCTV evidence with a commentary from the case officer, and the evidence of Helen Polymon, a shop assistant. The prosecution identified the applicant on the CCTV entering the Carphone Warehouse behind the

In summing up, Mr Recorder Evans QC gave a number of directions to the jury both orally and in writing. In the Route to Verdict document Question 1 concerned selfdefence.

The third basis on which the judge left the case to the jury had not been the prosecution case which we have described above.

In relation to the offence of possession of a bladed article the jury were directed they could only convict if they were sure he had a knife with him in the Carphone Warehouse without good reason or lawful authority.

Moises applies for leave to appeal against conviction on the ground that in the light of the judgment in Jogee the judge misdirected the jury in relation to secondary participation.

Although the judge did leave the case to the jury on a third basis which was a misdirection in the light of the decision in Jogee, in truth, on the evidence and the findings of the jury, the case was proved against him as a principal or as an accessory on normal accessory principles. The conviction was safe. The application is refused.

On 24 June 2015, in the Crown Court at Liverpool, before the Recorder of Liverpool, HHJ Goldstone QC and a jury, the applicant Hore and his co-accused Kenny

Hore applies for an extension of time of 8 months in which to appeal against conviction on grounds based on the decision in Jogee. This application has been referred to the court by the Registrar. The applications of Mello and Walmsley to appeal against conviction on grounds unrelated to the decision in Jogee were refused by the single judge and have been renewed. As no ground relating to the decision in Jogee is raised in these applications, they will be considered separately.

The deceased, Anthony Duffy was a drug dealer. Shortly before his death he asked the applicant Hore to burgle a house and cannabis "farm" at 6 Hall Lane, Walton Vale and steal a crop of cannabis owned by the co-accused Kenny and Walmsley. In an attempt to curry favour, Hore contacted Kenny and Walmsley and told them what the deceased had asked him to do. Kenny and Walmsley decided they would exact revenge. It was the prosecution case that Hore's role was to lure the deceased to a rendezvous on a disused railway (known as the "loop line"), where the deceased thought Hore would hand over the cannabis whereas, in truth, the plan was to attack him.

Whilst Hore was with Kenny and Walmsley discussing the arrangements, a call was made to Mello (who was the person who supplied the weapons used in the attack). Telephone evidence showing the frequent contact and the contents of text messages between Hore and the deceased between 26 and 27 May 2014 was placed before the jury.

Hore arranged a meeting on the night of 27 May 2014 and gave the deceased directions to the location. The deceased's sister, Julie, drove the deceased to the scene. She knew her brother was going to meet someone called ' 'Horey". Whilst they were en route the deceased was on the phone to "Hore. After one call the deceased said to her "I'm sure he's just said, don't come". He hoped it was not a "stitch up' and called backe After that call the deceased told her to drive on. Telephone evidence showed frequent telephone traffic between Hore's phone and the deceased between 23.12-23.40 and a flurry of contact or attempted contact which ended at 23.46.

The deceased was brought to the ground in the street and stabbed to death in a brutal and sustained knife attack. During the attack one of the assailants was heard to say, "you house-robbing bastard". A 999 call to the emergency services was made at 23.53.

Notwithstanding the swift attendance of the emergency services, the deceased died as a result of the multiple stab wounds. The pathologist identified twenty eight wounds to the left side of the face, left upper arm, left hand, left side of the chest, the right shoulder and the left leg as well as from the head to the left side of the lower back.

Matching bin bags full of grass cuttings (intended to be taken for cannabis and the proceeds of the burglary) were found nearby. On one of the bags the police identified Hore's fingerprint and a mixed DNA profile which could be that of his co-accused Kenny and Walmsley and one other person.

Following the murder, there was contact between Hore and his co-accused Kenny and Walmsley and evidence that they each disposed of their mobile phones. Kenny and Walmsley changed their clothes and booked flights to Amsterdam. They were arrested on 3() May at Manchester airport.

The prosecution suggested the telephone contact between Hore and the deceased and the fact that Hore sent a text message indicated he had plenty of time and opportunity between seeing the weapons and the arrival of the deceased to call the meeting off.

Hore was arrested in the morning of 28 May 2016 and made no comment in his earlier police interviews but in a prepared statement he named Kenny and Walmsley as the two men who had chased and attacked the deceased; he did not mention Mello or anyone arriving at the loop line with weapons. In his final interview he told the police that everything had been set up by Kenny and Walmsley, that he did not know what was going on and that when he did he was frightened. In his defence statement he mentioned an Asian man arriving with a gun; the police identified that person as Mello who was arrested and charged.

The defence case was that Hore was not party to any joint enterprise to cause reallv serious harm to the deceased; but if he was, he withdrew from it.

He admitted presence at the scene of the attack, but claimed the killing of his friend by Kenny and Walmsley, with a weapon supplied by Mello, was something that he never intended, or wanted to happen. He had been asked by the deceased to steal the cannabis, but since it was not his style, he had chosen two other men, his co-accused Kenny and Walmsley, to do it instead. It was an unfortunate co-incidence that they were the very men who owned the crop. He thought that his presence on the evening of the attack was to effect an introduction between the deceased and his co-accused. It was only when they were together and Mello had arrived with the knife and the gun with the silencer that he realised that the situation had got very much more serious. He did the best that he could, in very difficult and potentially dangerous circumstances, to prevent the deceased from coming to the rendezvous.

Kenny, Walmsley and Mello denied that they had been involved in the fatal attack accusing Hore of lying to protect himself.

The judge's directions on joint enterprise began with an explanation that there was no doubt the deceased was murdered: whoever stabbed him intended he should be killed or suffer really serious injury. He continued:

⁸01n the 115. The judge equated "withdrawa1' with taking "effective steps to withdraw fi joint enterprise by what he said over the phone to Anthony Duffy". In relation to communication of withdrawal, in this case there was no evidence of communication: the judge directed the jury to consider whether exceptional circumstances existed that

If the jury accepted Hore was a party to a plan to attack the deceased but withdrew or might have withdrawn from the plan, they were directed then to consider the alternative count of conspiracy to cause grievous bodily harm with intent

The judge provided the jury with written directions to the same effect and a route to verdict. The first of three questions was:

Accordingly, the central issues for the jury in respect of Hore were:

This is a case where the safety of the conviction could not be challenged on the basis of the law as it stood at the time of the conviction; hence Hore was advised against appealing. There is therefore just one ground of the application, namely, that the judge misdirected the jury in relation to the mental element required for a secondary party to murder in the light of the judgment in Jogee.

It was submitted that the judgment in Jogee is of particular relevance to the applicants case because the question of intent was never posed for the jury in this cases The difference between joint enterprise on foresight and joint enterprise on intention on the facts here was stark. Had the jury been given the post-Jogee direction it would, or could, have made a fundamental difference to the verdict in the applicant-s case and the murder conviction must therefore be unsafe. There would be a substantial injustice if he was refused exceptional leave and his conviction was upheld.

The prosecution case was that when Hore lured the deceased to the meeting he did so "in the certain knowledge of what was to happen to him". By its verdict, the jury clearly rejected his defence both that he was not a party to an enterprise where what was intended at least was grievous bodily harm to the deceased and that he withdrew from the plan.

He was convicted therefore of luring the deceased to an isolated place where he was to be attacked with weapons including firearms. In this case the reference to foresight only arose because Hore admitted in his evidence that when the weapons arrived he foresaw that the deceased could have been robbed, badly hurt or killed yet continued to lure the deceased to the scene. This was not, on analysis, a parasitic accessory liability case; the issue was as crystallised in the first question the judge left for the jury

It follows that this is not a conviction where there is a case, let alone a strong case, that Hore would not have been convicted of murder under the law as explained in the decision in Jogee. The case against him fell clearly within the principles set out in Jogee; there was a clear agreement between Hore, Walmsley and Kenny to lure the deceased to the loop line with intent to cause, at least, really serious bodily injury and considerable intentional assistance in carrying out the agreement. We therefore refuse leave.

On 16 September 2014 at the Luton Crown Court before HH Judge Foster, Javed Miah, Rubel Miah, Mohammed Hussain and Fahim Khan were convicted of the murder of Isaac Stone on 25 January 2014 and two counts of possession of an offensive weapon. Rubel Miah and Fahim Khan were also convicted of wounding Shajidur Rahman with intent (as an alternative to a count of attempted murder); Javed Miah and Hussain were acquitted of both the attempted murder and the wounding with intent of Shajidur Rahman.

They were all sentenced to life imprisonment with a minimum term of 28 years for Rubel Miah and Fahim Khan, a minimum term of 26 years for Javed Miah and a minimum term of 25 years for Mohammed Hussain.

Javed and Rubel Miah lodged an application for leave to appeal against conviction within the requisite period of 28 days on non-Jogee grounds (see paragraph 15() below) and were granted leave to appeal. In April 2016, they sought leave to add a further ground based on the decision in Jogeee In the same month, April Khan sought leave to appeal and an extension of time with grounds based on the decision in Jogee. Hussain did the same in May 2016.

The convictions arose from a fight that occurred at about 18:45 on 25 January 2014 during the course of which Isaac Stone was stabbed to death and another man

The fight was said to have been triggered by the uploading of a You Tube rap video "Go missing" at about midnight on 24 January 2014. It had been directed by the deceased and prominently featured the deceased with Marfuz Ahmed. Some of his friends, including Shajidur Rahman, also appeared in it.

The next morning, Saturday 25 January 2014, Javed Miah contacted Glamour Cars in Luton to hire a luxury white Range Rover, saying it was for a birthday. He arrived to pick up the car with Mohammed Hussain and his brother Rubel Miah; Mohammed Hussain signed the hire agreement because he was over twenty one and had a driving licence. At 16:00, they left Glamour cars in the Range Rover which had a tracking device.

The tracker information revealed that the vehicle arrived in Bedford shortly before 17:()0 and was driven around the area, making a number of stops including to pick up Khan and Hussain. At 17:32 the Range Rover pulled up on Greenhill Street near Habison's Hardware store. Rubel Miah and Khan went into the shop and purchased two meat cleavers; it was the evidence of Khan that Rubel Miah made the purchase when he was present. Khan said the cleavers were bought to cut up blocks of cannabis which he was engaged in selling.

Shortly before 18.00 the Range Rover stopped near a McDonald's at Castle Lanee Rubel Miah and Khan got out and made an attempt to find the deceased. CCTV evidence showed Rubel Miah and Khan meeting and speaking to Shajidur Rahman on two occasions. It was Shajidur Rahman's evidence that they said there was no problem with him, but there was a problem with Marfuz Ahmed and the deceased and they wanted to sort it out that night. His evidence was that he thought they wanted a fist fight and asked him to get hold of Marfuz and the deceased to sort it out. Rubel Miah and Khan got back into the Range Rover,

The evidence before the court was that the deceased and Marfuz Ahmed had spent that afternoon together, for some of the time driving around the centre of Bedford in the deceased's Corsa car.

The Range Rover then dropped Mohammed Hussain off at his home in Maitland Street (an adjoining street to Costin Street where the Miah family lived) at about 18:11. The car followed the road round and parked at one end of Costin Street at 18:14. Within minutes of being dropped off, Mohammed Hussain made two very short calls to Javed Miah. It was the prosecution case that Mohammed Hussain had seen the Corsa driven by the deceased as it passed his house and wished to alert his friends. The deceased arrived in Costin Street from the other end and parked, expecting a confrontation: with him in the car were Shajidur Rahman, Marcus Izwani« Marfuz Ahmed and a man referred to as Zacks Within moments, Mohammed Hussain had left his home armed with a weapon and had cut through an alleyway to join his co-accused in the attack.

The group led by Khan and Rubel Miah approached them and four of those in the Corsa got out. Zack appears to have played no part.

A fight started. Shajidur Rahman was attacked by Khan who had a weapon in his hand, most probably one of the meat cleavers (wrapped in a blue bag). Khan "hacked" at Shajidur Rahman's face causing several deep and heavy cuts and cutting off his nose. As Shajidur Rahman was under attack, he saw Rubel Miah and another man go for the deceased. Izwani and Marfuz Ahmed ran away when they realised they were outnumbered and weapons were involved.

The CCTV cameras picked up Marfuz Ahmed running up the middle of Costin Street past a witness, Mr Islam, and heading for Midland Road. Shajidur Rahman, already injured, staggered in the same direction. The deceased can be seen followed probably by Rizwani. They were being chased by three men and then attacked; at the conclusion of the evidence, the Crown contended that these were Khan, Rubel Miah and Hussain, with Javed Miah standing close by (on the other side of a row of cars). Hussain had something in his hand which appeared to be a bladed weapon; Hussain said it was his phone. In relation to the attack, the deceased was brought to the ground with a series of blows. About ten seconds later a man in a white t-shirt could be seen walking back down the pavement with what appeared to be a blade in his right hand, probably a cleaver. The prosecution case, at the time of the closing speech, was that this was Rubel Miah. He was followed by Mohammed Hussain. As Mohammed Hussain went out of view he passed Shiuly Begum (the Miah brothers' sister) in her dressing gown. Khan had been left with the deceased and was still assaulting him with a weapon covered by a blue plastic carrier bag. The deceased was trying to grab at the bag. Shiuly Begum and Mr Islam tried to restrain Khan but he made a further fifteen to twenty strikes at the deceased using both hands. Ms Begum and Fahim Khan then walked back down Costin Street. Members of the public gathered to assist the deceased.

Thato Moleke. the next-door neighbour of the Miah family who lived in Costin Street in had gone into the street when he heard a commotion. He purported to identify during an identification procedure Rubel Miah as having a knife and Javed Miah as shouting in the street. In his evidence he described Rubel as wearing a white t-shirt on which there were blood stains. He saw Javed Miah coming away from the group to go back inside his house. He had his hands on the waist of his jacket as if he was hiding something.

Samantha Willis's evidence was that while the victim was lying on the floor, an Asian man in a white t-shirt walked towards the white Range Rover shouting two or three times • ^e rm going to fucking kill him". He was walking with a bit of a limp and appeared to be putting something down his trousers, The prosecution case was this was Rubel Miah. The engine of the Range Rover was already running and the man she had seen got into it on the driver's side. Just four minutes or so after the fight started it drove off,

When the deceased's friends realised he was not with them, they returned and discovered him dying in the streets He was clutching in his hand a blue carrier bag. Paramedics arrived swiftly but could not save him. He had received multiple stab wounds, one of which, a single penetration of his left lung by a narrow bladed knife (not a cleaver), caused his death. A discarded knife was found nearby.

Mr Maruf, the Glamour Cars broker, was surprised to receive a phone call from Javed Miah that evening, just before 20:00 saying that he wanted to return the car. He told him that something had happened. The car was returned by Rubel Miah and Fahim Khan.

Examination of the Range Rover revealed plastic packaging from a meat cleaver in the footwell, the same as that used by the store in which the cleavers were bought, The packaging in the footwell bore the fingerprints of Javed and another part of the packaging that of Rubel Miah. A mixed DNA profile found on a meat cleaver handle recovered from the scene (which had been used to attack Shajidur Rahman) was predominantly that of Fahim Khan, but the profile suggested at least three, possibly four, contributors of DNA one of whom could have been Javed Miah. This could have come from direct transfer through handling of the cleaver by him or by secondary transfer through the cleaver coming into contact with a surface which had Javed Miah's DNA on it. The knife was found to have Shajidur Rahman's DNA on it but that may have come from his blood trail.

Each of the four defendants chose to make no comment when they were interviewed although Khan handed in a prepared statement.

The defence case at trial was that there had been no planned attack; the meat cleavers had not been purchased to be used as weapons; Mohammed Hussain and Javed Miah were not even aware that they had been purchased at all. The occupants of the Corsa were the aggressors. Any violence in which they were involved was in their selfdefence or the defence of a friend.

The Miah brothers did not give evidence.

The judge gave the jury one document called "Legal Directions Upon Offence Definition" and another called "Routes to Verdict". During his summing up, he took the jury through the Routes to Verdict in the following terms:

During their deliberations, the jury handed up two notes concerning the correct interpretation of the legal directions on the law of joint enterprise. The judge discussed the correct approach with counsel. Defence counsel invited him to expand the direction he had already given. He declined to do so for fear of confusing the jury. When he answered their questions he was at some pains to make clear that these were answers to the questions and did not supersede the written directions already given. He said:

He emphasised that mere knowledge of a plan was not enough. In answer to their third question he directed the jury in clear terms that being party to a plan to fight the deceased or simply present at the scene would not be sufficient to amount to murder. The prosecution had to prove the mental element and participation in the plan,

The appellants have leave to appeal against conviction on the following ground:

Thus, the arguments were as follows.

Khan sought leave to appeal against his sentence within the prescribed time and was granted leave. He applied in April 2016 for an extension of time of eighteen months in which to apply for leave to appeal against conviction on the one ground that the judge misdirected the jury in relation to joint enterprise in the light of Jogee; in support of this grounds, he sought to rely on other criticisms of the summing up which are very similar to those made by Javed and Rubel Miah. He contended that the principals to the killing were the man in the white t-shirt and Hussain. There was no evidence of participation by him. He also seeks leave to appeal on the basis that the ground of appeal on manslaughter was incomplete and inadequate.

Similarly, Hussain applied for leave to appeal against sentence within the prescribed time and was granted leave. He applied in May 2016 for an extension of time of approximately 19 months for leave to appeal against his conviction for murder on the one ground that the judge's directions on joint enterprise were materially inadequate or mistaken. He also seeks leave to rely on the criticisms of the summing up which are very similar to those made by Javed and Rubel Miah.

The appeals against sentence of Javed Miah, Fahim Khan and Hussain and the renewed application for leave to appeal against sentence of Rubel Miah have been adjourned.

We reject the assertion that the judge's directions to the jury on participation were not sufficiently tailored to the facts of the case. The judge ensured his original directions in the body of his summing up were circulated between counsel and agreed by thenv he did the same in relation to his proposed answers to the jury's questions.

Trial counsel did not advance the kind of argument before him that has been advanced before us. This was, no doubt, because they were satisfied that the directions as delivered were sufficiently tailored to the facts of the case. It was a matter for the judge the extent to which, if at all, he wished to expand upon his original directions when the jury sought further help. He was wise to avoid it if at all possible. Having considered the directions as a whole and in context, we reject the criticisms made in respect of all the applicants and appellants.

Suggestions were made during the course of argument that the judge should have given a direction on withdrawal. As the Single Judge rightly observed this was not a case where the issue of withdrawal arose.

We consider that there is no merit in the application made by Khan to seek leave to appeal on the basis that the direction on manslaughter was inadequate. The judge's direction was sufficient.

Based upon the clear directions of the judge, the objective evidence of hiring by Javed Miah of the Range Rover (together with its use to find the deceased and its return after the murder), the purchase of the meat cleavers by Khan and Rubel Miah, the finger prints of Javed Miah on the wrapping and the inconclusive evidence of his DNA on the cleaver found in Costin Street, together with the CCTV footage, leave, in our view, no room for doubt that the jury made the following factual findings:

Given the facts that the jury must have found (including the planning involving the Range Rover and the evidence of joint enterprise to engage in violence with a bladed weapon), we conclude that the conviction was safe on the basis of the route to verdict in the third question. In any event, we conclude that substantial injustice was not demonstrated. These applications should be refused.

On 18 September 20()7 at the Bradford Crown Court before HH Judge Gullick, [he then Recorder of Bradford, the applicant Hall, Laura Mitchell and Henry Ballantyne were convicted of the murder of Andrew Ayres and violent disorder. They were each sentenced to life imprisonment with a minimum term of 13 ¹/2 years, with concurrent sentences for the violent disorder. Carl Holmes pleaded guilty to murder and was sentenced to life imprisonment with a minimum term of 13 ¹ 2 years. Jason Fawthrop was acquitted.

On the basis of the advice of leading trial counsel, no application was made by Hall for leave to appeal against conviction. It was accepted on the application before us that there was no proper basis on which to challenge the conviction on the law as it then stood. His application for leave to appeal against sentence was refused and no

At 01:46 on Sunday 28 January 2007 Craig Powell ordered a taxi to collect him and his girlfriend, Claire Francis, his brother Dean and Dean's girlfriend from the King's Head public house, Bradford. When the taxi arrived, probably about two minutes later in the car park, it waited for a few minutes. Michael Hall and his co-accused then came out and took the taxi. The taxi driver realised they were not his fare and asked them to leave. At the same time Craig Powell came out and he, too, asked them to get out. By that time, ail concerned had had drunk substantial quantities of alcohol.

Although there was a short lull in the violence, it was the prosecution case that there was one single joint enterprise in which there was a common intent to cause serious bodily injury through the use of shod feet or other weapons to the Powell brothers and the deceased so as to teach them a lesson because they had dared to stand up to them

During the lull, the co-accused. including at least Holmes and Wood (although on the evidence neither Hall nor Laura Mitchell) crossed the Halifax Road and went to 8 Buttershaw Lane, home of Jason Fawthrop. Craig Powell, Dean Powell and the deceased walked to the mouth of Buttershaw Lane: it was Craig Powell's evidence that Dean Powell and the deceased were uninjured and that the deceased gave him his jumper to wipe has face as it was covered in blood.

The co-accused obtained a knuckleduster, a CS spray canister and what was described as a mace or flail, Accompanied by Henry Ballantyne, Fawthrop and his girlfriend, they returned to the car park. Dean and Craig Powell and the deceased anticipating they were about to be attacked with weapons (as they said they saw a flash of metal). retraced their steps back over the Halifax Road to the King •s Head but found themselves locked out. Their evidence was that they were both sprayed with CS gas.

A chase ensued, Craig Powell escaped but Dean Powell was caught by three attackers in the car park, including Hall who accepted in his evidence that he grappled with

The deceased was also caught by the group in the car park. He was knocked to the floor where he was kicked. Carl Holmes stamped on his head and upper neck brutally and repeatedly, causing injuries from which he subsequently died in hospital. His injuries were caused by shod feet and not any other weapon. There was no evidence that it was anyone other than Holmes who was engaged in stamping on the deceased's head. There were no injuries to his legs, other than scuff abrasions over the right knee. There were no marks of any significance to the back or chest other than a mark in the region of the left nipple

There was, however, evidence that a group were involved in the attack. Some were kicking and hitting a person on the floor and the head of that person was then stamped on: that evidence was given by witnesses who had been in a car which was passing by and which stopped, but the witnesses gave accounts that varied and the evidence that the person on the floor was being kicked by others was not consistent with the pathology evidence to which we have referred. Other witnesses in cars that were passing by (or which stopped) gave evidence.

The police were called at ()2:02 by Craig Powell and one of the persons in the passing car; the whole incident therefore only lasted a few minutes. The police were on the scene at 02:09.

Forensic examination revealed the deceased's blood on Hall's left trainer. The pattern was indicative of an airborne splash rather than a contact stain. Although it was unlikely that this was a contact stain from the deceased at the time of the fatal assault, the prosecution contended that it was open to the jury to conclude that the blood came during close proximity to the attack on the deceased. Bloodstains on Hall's jeans suggested that he had interacted with the Powell brothers when they were injured or bleeding.

DNA testing of the knuckleduster revealed the blood of Craig Powell and skin from Dean Powell on its leading edge; the evidence of the forensic scientist was that it had come into forceful contact with Dean Powell because of the impacted skin and also with Craig Powell when he was injured and bleeding. Ballantyne's DNA was on the knuckleduster; it may have come from his blood or from wearing the knuckleduster. Other bloodstains on the clothing of the co-accused also indicated their contact with the Powells.

After the deceased had been attacked, the fighting stopped. Hall and his girlfriend* Laura Mitchell. went to 8 Buttershaw Lane from where they left by taxi shortly afterwards.

Hall, who had made no comment in interview, gave evidence that, with regard to the first phase, as soon as he got out of the taxi, he and Craig Powell started fighting. He did not intend to cause anyone really serious harm and was just punching and not kicking. He was acting in lawful self-defence. During the lull in the violence, he and Laura Mitchell went back into the carpark to fetch Laura Mitchell's shoes.

At that point, that is to say in what was described as the second phase, Dean Powell grabbed Hall and they started fighting; they were grappling with each other. Ballantyne came over and punched Dean Powell causing him to release his grip. He stepped back and Carl Holmes sprayed Dean Powell with gas: he had no prior knowledge anyone had a CS spray or any other weapon. Dean Powell ran off, chased by three or four others including Carl Holmes. He had been at the side of the King's Head all the time; he was not at the front of the pub where the deceased was killed. After being told that everyone had gone to Fawthrop's house, he went towards Buttershaw Lane where he saw Laura Mitchell and then onto Fawthrop's house.

The judge provided the jury with written directions upon which he elaborated in the course of his summing up. The steps to verdict in relation to Hall were:

Hall applies for an extension of time of 8 years and 6 months in which to apply for exceptional leave to appeal against conviction on two principal grounds:

It is Hall's case on this appeal that given the question from the jury and the judge's response, the jury convicted Hall on the basis that he realised, rather than intended, that really serious harm would be inflicted by Carl Homes on the deceased. This is

This is a case where it is accepted that the safety of the conviction could not be challenged on the basis of the law as it stood at the time of the conviction. It is therefore necessary for Hall to demonstrate a substantial injustice would be done. This was not the case of a man who had committed no crime; he had joined in an attack and engaged in inflicting serious violence. It is plain on the facts that he would have been convicted of manslaughter had he not been convicted of murder.

We turn to consider the strength of the case advanced by Hall that he would not have been convicted of murder if the law had been explained to the jury as explained in Jogee.

We see nothing in the point that the judge should have left manslaughter to the jury. No complaint was made at the time and no application for leave madee If the application based on Jogee were to succeed, it was accepted that this court should substitute a verdict of manslaughter.

The jury's verdicts indicate they made the following findings of fact:

The case was opened on the basis Hall joined in a violent attack in which he must have realised one of his fellow attackers might kill or cause Mr Ayres grievous bodily harm with the intent to do so. The transcript of Hall's cross examination makes clear that the prosecution hoped to establish the necessary participation and mens rea on his part by proving:

In the light of the jury's findings which we have set out at paragraph 185 and the evidence that Hall gave, he participated in the second phase of the incident. There was clear evidence that the attack on Dean Powell in that second phase was made by a group that included Hall and Ballantyne and that they were intent on teaching the Powells and the deceased a lesson; on the forensic evidence the knuckleduster must have been used in that attack.

At paragraph 94 of the decision in Jogee the court concluded:

In our view, the jury must have concluded on the evidence before them that Hall was, in the second phase of the incident, a party to the common purpose of inflicting unlawful violence on the group that comprised the Powell brothers and the deceased, when the group were shouting "Come on, let's have you". He then inflicted unlawful violence to Dean Powell with Ballantyne and Holmes in the second phase of the incident. He accepted he saw Holmes use a CS canister on the Powell brothers. It is the clear inference from the forensic evidence that the knuckleduster was used in that attack. The jury must by their verdict have concluded that he foresaw that Holmes would attack the third member of the group, the deceased, with intent to cause really serious bodily injury. In the circumstances it would have been open to them to infer that he had the necessary conditional intent now required.

Furthermore, we turn to the jury question which proceeded on the premise that there were no fewer than eight acts (which can only have been acts of violence) directed at the deceased which Hall realised would have caused him serious harm. The jury must have concluded that notwithstanding that realisation after the first acts of violence. he continued to be a party to the common enterprise thereafter.

Can it therefore be said that there is a sufficiently strong case that the defendant would not have been convicted of murder if the law had been explained to the jury as set out in Jogee? We do not consider that there is and therefore we do not consider that a substantial injustice would be done. We refuse leave.