Jackson, R v

LORD JUSTICE HOLROYDE: In January 2012, after a trial in the Crown Court at Sheffield before McCombe J (as he then was) and a jury, this applicant and three others were convicted of the murder of Adam Vincent. The applicant was also convicted of conspiracy to pervert the course of justice. He was acquitted of a charge alleging conspiracy to supply controlled drugs of class A.

He was sentenced for the offence of murder to life imprisonment with a minimum term of 29 years. A concurrent sentence of eight years' imprisonment was imposed for the other offence.

No appeal against conviction was brought at the time, although the applicant did bring an appeal against sentence which succeeded to the extent that his minimum term was reduced to 25 years.

In January 2018 he lodged an application for an extension of time of nearly six years to apply for leave to appeal against his conviction for murder, relying on the decision of the Supreme Court in R v Jogee [2016] UKSC 8. His application was refused by the single judge. It is now renewed to the full court.

The deceased was 33 years old at the date of his death. He was addicted to drugs. He had lived in the same house as the applicant and the other accused. The cause of his death was blunt force trauma to his head. The evidence of a pathologist was that the deceased had been struck with severe force at least three times with a weapon such as an axe or golf club to the head. He had sustained other head and facial injuries, and also broken ribs and contusion to the spleen, probably caused by stamping. Five pellet shot wounds were found which had been inflicted with an air rifle.

The prosecution case was that all of the accused had been engaged in the supply of drugs, specifically heroin, and that they had jointly murdered the deceased as part of a joint enterprise to silence him and/or as revenge for their belief that he had provided assistance to the police resulting in the accused being arrested and/or had stolen money or drugs from them. The prosecution case was that the deceased had been subjected to violence and physical abuse, behind the closed doors of the house in which they were all living, for a period of about two weeks before he died. His body was then taken to another location where it was dismembered and the parts disposed of in an attempt to conceal the crime. Two particular vehicles, a Ford Escort and a van had been respectively purchased and hired by some of the accused to assist in disposing of the body.

It is unnecessary for present purposes to go into the details of the evidence against this applicant. It is sufficient to say that a number of witnesses gave evidence of things said to them by the applicant which plainly implicated him in the killing of the deceased. There was undoubtedly evidence on which the jury could properly convict if they were satisfied so as to be sure that the evidence was truthful, accurate and reliable. It is to be noted that no submission of no case to answer was or could be made. Neither the applicant nor any of his co-accused gave evidence.

In his directions of law to the jury, the learned judge emphasised the need for them to give separate consideration to each of the accused and to each of the different charges. He explained in conventional terms that two or more persons may commit an offence jointly. At page 8A to C of the transcript, he said this:

In the light of the law as it stood at the time of the trial, the judge went on to add that the direction just quoted was subject to a further point which he explained as follows:

The judge later summarised his directions by saying at page 9E:

Towards the end of his summing-up, the judge provided the jury with a written route to verdict consistent with the directions which he had given.

In his applications for an extension of time and for leave to appeal against conviction, the applicant makes clear that he was advised at the time of his trial that he had no grounds of appeal against conviction. He says however that the law relating to joint enterprise has now been redefined by the Supreme Court in Jogee. In his grounds of appeal, he says:

The applicant relies on essentially the same points as being exceptional circumstances justifying the grant of leave to appeal so long out of time. The need for that long extension of time arises, he submits, simply because the appeal is based on a comparatively recent development in the law.

The applications are opposed by the Crown in a Respondent's Notice which submits that Jogee does not assist the applicant in the circumstances of this case.

The court in Jogee considered cases of what had become known as parasitic accessory liability. In a series of decisions, including the decisions of the House of Lords in Powell, English and Daniels [1999] 1 AC 1 and Rahman [2008] UKHL 45, it had been held that if D1 and D2 agreed to commit crime A, and in the course of that joint enterprise D1 commits a different crime B, D2 is guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as he did. The case law had however recognised an exception to this principle where offence B involved a "fundamental departure" from what had been agreed in relation to offence A. It was in that context that in cases of murder issues arose as to whether D1 had unexpectedly used a much more dangerous weapon than anything which D2 had foreseen as a possibility. Hence the direction which McCombe J gave in this case as to foresight of the possibility that a deadly weapon might be used.

In Jogee it was held that the law had previously taken a wrong turning. Although foresight of what might happen could be evidence from which a jury might infer the necessary intention, it could not be the test for the mental element of secondary participation in murder. Murder requires an intention to kill or to cause really serious injury and a secondary party must intend to assist the principal to act with such intent. It will generally be sufficient if the secondary party himself intends to kill or to cause really serious injury. In the light of this restatement of the principles, the Supreme Court indicated that questions of "fundamental departure" will rarely arise for consideration.

The Supreme Court went on to state at paragraph 100 that where a court had correctly applied the law as it previously stood, exceptional leave must be sought to appeal out of time against conviction and exceptional leave will only be granted if there would otherwise be a substantial injustice.

In Johnson [2016] EWCA Crim. 1613, the Court of Appeal stated that it is for the applicant to demonstrate substantial injustice, which is a high threshold. At paragraph 21 the court said:

In the passages which we have quoted from the learned judge's summing-up, he repeatedly emphasised the need for the jury to be sure that a defendant intended to kill or to cause really serious injury. His direction relating to the use of a heavy weapon was set in the context of the jury being sure that a defendant intended at least to cause really serious injury. The jury's verdicts therefore show that they were sure that the applicant himself intended that the deceased should be killed or seriously injured. The decision in Jogee cannot assist a defendant who has been convicted on that basis.

The applicant's submission that there was no evidence that he was present when the deceased met his death cannot assist him either. As a matter of law, his guilt did not depend on whether or not he was present at that time.

The applicant submits, as we have said, that he had no motive to harm the deceased and that there was no evidence sufficient to prove that he participated in the killing. But those were issues which the jury had to consider at trial and which they resolved against the applicant. There is, in our judgment, no basis for saying that the jury would have reached any different decision if they had been directed in accordance with Jogee. The only difference would be that if the jury were sure, as they must have been, that the applicant assisted or encouraged the killing of the deceased with the intent that he be killed or seriously injured, then questions as to whether he foresaw the use of a particular type of weapon would be irrelevant. In short, the only effect of Jogee would be to make the applicant's case weaker not stronger.

We are therefore satisfied that there is no arguable ground for granting exceptional leave to appeal out of time. The renewed application accordingly fails and is refused.