R v T'Shai Ennis

The grounds and written submissions on behalf of the applicant focussed on the argument that the jury had been wrongly directed on joint enterprise in light of Jogee. At the outset of the hearing Dr Gerry QC indicated that her primary position was that this was not in fact a “change in law” case. However, her submissions reiterated concerns over the trial judge’s approach to the issue of foresight, the central issue raised by Jogee, and so this was clearly her secondary position.

We deal first with the submissions that the judge’s directions to the jury were flawed based on the law as it was at the time of the trial.

First, it was argued that the directions to the jury were insufficiently clear as to the concept of joint enterprise in particular with respect to the prosecution case against the man in the taxi. We disagree. The jury was told that:

“The essence of joint responsibility for the targeted crimes alleged here is that the Defendant whose case you are considering shared with one or more of his co-accused the intention to commit that offence or foresaw the risk of such harm and took some active part, underlined, so as to achieve that contemplated aim. One can lead and others can follow but mere presence at the scene without prior involvement in the criminal enterprise is insufficient” (see pages 16B-16C of the summing).”

Further, there were only two people shown on the CCTV directly engaged in the stabbing of the deceased. The jury was directed that the prosecution case against the third man was that his role in the “common enterprise” was:

“…helping control the taxi to ensure it arrived at the scene, giving directions within the scope of the joint enterprise so that it could be then a getaway vehicle” such that “there are a variety of ways…in which a third person in the context of this case can be involved without offering the physical violence directly to the victim” (page 16D-E of the summing up).”

We are satisfied that those directions were correct in law and were sufficient in the circumstances of this case.

Second, it was argued that the judge did not direct the jury sufficiently clearly as to whether there was a plan between the defendants, what the nature of any such plan was, whether it was an intentional plan, what the applicant knew of the plan and whether he acted in accordance with it.

We cannot accept this. The judge referred to the following “key factual issues” for the jury in relation to each of the defendants who they found went to Harlesden that night: “1) Did he bring the knife in the taxi? 2) Did he know that either or both of the other passengers were carrying knives?” (page 17E of the summing up).

Further, the judge directed the jury as follows in the steps to verdict with respect to count 1:

“To convict any defendant of either murder as indicted on count 1 or the lesser alternative of manslaughter you must first be sure that the individual defendant whose case you are considering knew that one or more of the three passengers in the taxi was armed with a knife before these Harlesden assaults began. Of course, that knowledge could be in two ways: either because he was armed himself or because he knew one of his co-passengers was. If he was not there at all, of course, the issue does not arise. If you are not sure that was so, that he had that knowledge of his armed expedition, then you acquit the defendant of count 1. If you are sure he knew this fact, then part (b) is engaged, and you go next to it.

Part (b) sets out in a similar structured way to count 2 the necessary elements: physical and mental. To convict the defendant whose case you’re considering of murder you must be sure that (1) he joined in the contemplated assault on David Headlam. In other words he was present and participated in the contemplated assault in the ways portrayed; and (2) at the time he did so, and then either of two things under (2), (i) he intended that David Headlam would be caused at least grievous, ie really serious bodily harm or (ii) he realised that one or more of the other assailants might intentionally do David Headlam a grievous injury; and (3) which is the final causation element, David Headlam thereafter sustained the stab wounds to his right thigh that caused his death” (page 19C-G of the summing up).

At times Dr Gerry QC appeared to suggest that “merely” staying in the taxi would be insufficient to render the applicant “criminally culpable”. However, this was not the prosecution case, which relied on the taxi driver’s evidence of the directions he was given by the person who remained in the vehicle, so as to facilitate the escape from the scene.

Third, criticism was made of the judge for initially directing the jury, erroneously, that it was not in dispute that this was a premeditated, armed attack. However, the judge later corrected this to make clear to the jury that the applicant and Daud did not accept this characterisation of the attack and invited the jury to amend their written directions to this effect (see the discussion with counsel, the correction and the summary of the applicant’s case at pages 64C-67B, 80E-F and 101G-102B of the summing up). It is unrealistic to suggest that the jury should have been discharged at this point rather than the correction made. We note that the experienced counsel who represented the applicant at the trial did not make any application to discharge the jury.

For these reasons we do not consider it arguable that the summing up was wrong, based on the law as it was before Jogee. The ground of appeal framed in this way crystallised during the trial and so it is also very substantially out of time, with no fresh evidence or good reason in support of an application to extend time.

We turn now to the submissions based on the change in law effected by Jogee. In that case, the Supreme Court rejected the principle that if two people set out to commit an offence and, in the course of it, one of them committed another offence, the second person is guilty as an accessory to the second crime if he foresaw its commission by the principal as a possibility, but neither intended it, nor agreed to it, expressly or tacitly, even on a conditional basis. The Court held that the correct approach to foresight is to treat it as evidence (albeit sometimes strong evidence) of intent to assist or encourage, but not as an inevitable yardstick of common purpose.

Individuals affected by the restatement of the law of joint enterprise in Jogee are not automatically entitled to leave to appeal their conviction out of time. Rather they must demonstrate that a “substantial injustice” would be caused if the grant of exceptional leave was denied. This is a high threshold. In order to determine whether it has been met, the court will have regard to the strength of the case advanced that a change in the law would in fact have made a difference. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct: R v Johnson[2016] EWCA Crim 1613 and R v Crilly [2018] EWCA Crim 168.

Dr Gerry QC contended that the substantial injustice hurdle sets far too high a threshold, which has proved impossible to surmount in practice. It amounts to a lack of access to justice and involves the surreptitious return of the proviso previously set out in section 2(1) of the Criminal Appeal Act 1968 which was repealed on 1 January 1996. Further, it is discriminatory. Dr Hulley and Dr Young’s work illustrates the over-representation of black and ethnic minority men in cohorts of people convicted under joint enterprise principles. She argued that the test also raises particular issues relating to the convictions of those with disabilities which may have complicated the approach to foresight.

However, the substantial injustice test is well established. It flows directly from the Supreme Court’s observations as to the rationale for it in Jogee. The approach to cases of this nature was clearly set out by this Court in Johnson. We do not consider that there is any basis for us to depart from it. It follows that to the extent that the applicant relies on the change of law since Jogee, in order to justify an exceptional grant of leave to appeal his conviction, he must show substantial injustice.

In our view the evidence against the applicant was strong. He had travelled from Slough to the Wembley area on the evening before the attack and had met with both his co-defendants by 9.30pm. He attended hospital with Daud, to assist in giving Daud a reason for being in breach of his curfew. There was the evidence that the taxi stopped minutes into the journey, which the jury could conclude was to retrieve the knives which PC Clark had in fact already seized. There was evidence that all three men had left the taxi when Mr Hewitt was stabbed before one returned to the taxi. There was evidence that the man who did so was controlling the taxi in the ways described above. The applicant was also found guilty of other, though less serious, criminal conduct.

More fundamentally, however, this was not a case that depended on foreseeability or events developing unexpectedly. Rather, there was strong evidence of a planned knife attack and it could therefore easily be inferred by the jury that all the defendants, including the applicant, shared the intent to do at least really serious harm.

As we have already set out, the directions (pages 16B-16F of the summing up) and the steps to verdict (pages 19C-19E) made clear to the jury that they had to be sure that this was a planned knife attack and that knowledge that a knife or knives were being taken to the scene was a necessary element of conviction. The judge later strengthened the initial directions by making clear that an accessory present at the scene had to have the same intent as the principal (page 102).

For these reasons we do not consider that the restatement in the law effected by Jogee would have made any difference in this case. The applicant therefore cannot meet the test set by Johnson and Crilly. It follows that we see no basis on which Ground 1 could be argued.

This ground relates to a rap video involving the applicant and Daud. The applicant wrote the lyrics in April 2013 and the lyrics included talk of the enemy being stabbed such as “He got cut so I know that he’s scheming; Fucking with my niggas that’s the reason; I’ll creep up on your yard, leave your brains on the ceilin’”. The video of it was made on 21 June 2014 on the Chalkhill Estate. Daud organised the video and the applicant was the main artist within it. The blue bandanas in the videos were said to be similar to those in which the knives had been found by PC Clark and to evidence a “sort of badge of association” between the Defendants based on photographs found on Koshin’s phone.

On 25 June 2014, Daud informed the person who made the video that the name of the track was “Chalkhill Catch You Slipping”. At 9.35pm on 28 June 2014 Daud sent a text message to that person asking if the video was going to be uploaded that night. Daud was told that it would be, and it was uploaded to YouTube the next day. On the evening of 29 June 2014, the applicant and Daud watched the video together.

The applicant gave evidence that the rap video had been made because he and Daud shared an interest in the same music. The lyrics were not an indication of past or future violence and were merely part of the genre of that type of music. He said that on the evening of 29 June 2014 Daud attended his house unexpectedly. They watched their rap video on YouTube. He had no idea what had happened in Harlesden apart from some messages of sympathy he saw on Facebook for the deceased. He did not connect it to the incident he had seen from the back of the taxi.

According to Mr Georgiou a computer expert was instructed on the applicant’s behalf and established that the lyrics had been written in 2013, which the prosecution accepted. It appears that leading counsel initially sought to argue that the video should not be played to the jury but then conceded that it was admissible because it was connected with the facts of the offence within the meaning of section 98(a) of the Criminal Justice Act 2003. It was not admitted as generic “bad character” evidence.

The judge directed the jury that the prosecution’s contention was that “from the lyrics and the attitude displayed on the video” the Defendants were “letting the world know they were not to be messed with” and that the “central message” was that “anybody who crossed them would wind up dead”. The judge also told the jury that the applicant and Daud emphatically denied this interpretation of the video and said that the video was simply an example of the rap genre and was not sinister (see pages 31A-E of the summing up).

At section 10 of their report, Dr Hulley and Dr Young refer to this passage in the summing up. They argue that there is a risk of police officers, prosecutors and juries misinterpreting rap lyrics; that presenting rap (and its derivatives, such as grime and drill) music and videos in court is embedded in racial biases; and that doing so presents a significant risk of disproportionate, prejudicial impact on black defendants. These broad themes are developed further in ‘The Irrelevance of Rap’ by Dr Abenaa Owusu-Bempah, Associate Professor or Law, London School of Economics (provided by the applicant to the Court in draft form in December 2021 but published in 2022 at Criminal Law Review [2022], 2, 130-151). Dr Gerry QC also argued that the type of clothing in question (bandanas) carries with it racial tropes.

The judge told the jury that the prosecution had accepted that “viewed alone” the video “could be regarded…as either harmless boasting or merely an expression of that particular genre of youthful musical activity” (page 36B-C of the summing up).

However, the evidence in this case relating to the rap video went well beyond potentially murderous lyrics, a fact that Dr Hulley and Dr Young do not engage with. The prosecution argued that there was a “chilling significance” to the timings, given that three hours before the knife attacks the three Defendants were together, not far from where PC Clark had recovered the knives two days before, and enquired whether the video would be uploaded to YouTube imminently (page 36C-E of the summing up). There was also the evidence as to when the video had been made (relatively shortly before the killing) and watched by the applicant and Daud (soon after it). We agree with the single judge that the evidence of the proximity in time to the killing at which the video was made, uploaded and viewed was evidence capable of establishing knowledge and planning. The bandanas also provided potential links between the video and the knives found by PC Clark and between the defendants.

In light of these factors the trial judge was entitled to conclude that the rap video evidence was “to do with the alleged facts of the offence with which the defendant is charged” under section 98(a) such that it was admissible. The inferences to be drawn from it, if any, were a matter for the jury. We reiterate that this material was not admitted as generic bad character evidence but rather had a specific relevance to the issues in the trial.

We also note that the judge gave the jury careful directions as to the relevance of the rap video evidence, summarising the inferences the prosecution drew from the video and the applicant’s evidence about it (see pages 29H-32F, 35G-37A and 110F-111C of the summing up).

For these reasons we do not consider it arguable that the fact that this evidence went before the jury renders the applicant’s conviction unsafe, even if the evidence contained in the report from Dr Hulley and Dr Young was admitted.

Dr Gerry QC argued that the adverse inference direction on silence should not have been given by the judge for two reasons.

First, the fresh expert psychology evidence from Dr Marriott indicates that the applicant’s cognitive abilities fall between the Low (Borderline) to Low Average ability ranges and place him between 4-10 per cent of the population. He meets the criteria for diagnoses of ASD and ADHD. This evidence is directly relevant to how reasonable it was for him to decline to answer questions and should have been placed before the jury.

Second, Dr Hulley and Dr Young’s research suggests that for those convicted of serious violence using joint enterprise, the fear of legal risks was the most common explanation for silence in police interviews; and that the feeling of powerlessness which encouraged many young people to stay silent was particularly so for young black men.

As to Dr Marriott’s evidence, the mere fact of a subsequent diagnosis, after trial, of a mental disorder such as ASD or ADHD will not necessarily result in a successful appeal. The task of the Court is to identify the issues at trial to which the fresh evidence would have been relevant and to assess the likely evidence on those issues: R v Grant-Murray and others [2017] EWCA Crim 1228 at [53].

This was a case where the applicant accepted that he lied in his prepared statement but said that he did so to protect himself and Daud from Dills because he feared what might happen if he was a ‘snitch’. He answered no questions in his police interview and provided no defence case statement. He then gave a detailed account in his evidence at trial that differed from that in his prepared statement.

In those circumstances, the judge was entitled to give the adverse inference direction based on the information available to him. The judge also gave a full Lucas direction, ensuring the jury were properly directed as to how to approach the question of why the applicant had lied in his prepared statement. It is unrealistic to suggest that the jury should not have been able to draw inferences from these facts.

In our view Dr Marriott’s evidence would not properly have resulted in the judge declining to give the adverse inference direction. Her evidence does not suggest that the applicant’s cognitive abilities necessarily impaired his decisions with respect to the various accounts he gave and did not give. Further, we do not accept the submission that even if her evidence had been provided to the jury it would “inevitably” have led to the conclusion that it was reasonable for the applicant to have remained silent in his interview.

As to the evidence of Dr Hulley and Dr Young, the decision as to whether to give an adverse inference direction and the details of it must be made on the basis of the facts in each case. We are not persuaded that the judge’s decision to give the direction in this case was wrong, or that further direction as to the reasons why the applicant may have stayed silent were required.

We therefore do not consider that this ground is arguable even if the evidence contained in the further reports relied on were admitted.

Dr Gerry QC confirmed in submissions that the only judicial comment on which she relied for the purposes of this ground was the judge’s initial comment that it was not in dispute that this was a premeditated, armed attack. We have considered this in detail under Ground 1 and do not consider it arguable that the conviction was unsafe for the reasons given there. This ground is also very substantially out of time.

It was argued that the circumstantial evidence direction given as part of the summing up (page 13D-G of the summing up) was inadequate and should have been clearer on eliminating other possibilities, in accordance with R v Kilbourne [1973] AC 729. It was submitted that the summing up was, overall, imbalanced.

We consider that the direction given was appropriate for the facts of the case, which did not rely solely on circumstantial evidence, not least as the applicant admitted presence at the scene. Other than his complicity in the attacks, the only other realistic possibility was that the applicant remained in the taxi unaware of what the other two men were doing. The jury was well aware that this was his case. We consider that the summing up was overall fair.

We therefore do not consider this ground arguable, and again it faces significant time limits difficulties.

Dr Gerry QC argued that the jury should have received evidence relating to the applicant’s cognitive disabilities, as these would have affected his ability to plan a common purpose or be complicit with others.

Dr Marriott’s evidence suggests that the applicant’s low IQ, ADHD autism, suggestibility and compliance would have impacted significantly on his ability to foresee the risk of an offence happening. However, these cognitive difficulties are not at a level that would have afforded the applicant a defence to the charges against him.  We agree with the prosecution’s interpretation of the reports that they do not suggest that the applicant was incapable of forming the requisite intent. Further, as explained above in the context of Ground 1, this was not a case that relied on foreseeability or events developing unexpectedly.

In terms of procedural fairness, the applicant’s grounds argued that knowledge of the applicant’s conditions would have allowed for a more relaxed court environment and a lower likelihood that the trial judge would treat his evidence as “anecdotal”.

While Dr Marriott’s evidence is that the applicant may have masked some of his difficulties, neither his legal team who had known him for some time, nor his mother, identified any concerns about his ability to follow proceedings or about him giving evidence or, nor did he raise any himself. He was able to give evidence and advance a complex cut-throat defence. For example, in cross-examination he advanced his case by responding to the prosecution’s suggestions about the rap lyrics, explained how he had used Koshin’s phone and responded to the case put on behalf of Daud (see pages 31D, 60G-61B, 85D-F and 95H-96C of the summing up). The judge referred to the “anecdotal” details of his account in evidence. However, this was not a general comment about the applicant’s demeanour but an observation that he, and his co-defendants, had provided many more details in evidence at trial than when questioned by the police.

We therefore do not consider this ground arguable, even if Dr Marriott’s evidence were admitted.

For these reasons we are satisfied, despite the detailed submissions of Dr Gerry QC, that none of the grounds of appeal are arguable. It follows that no purpose would be served by our granting an extension of time, even if the applicant were able to overcome the difficulties he faces in that regard, because an appeal would have no prospect of success. This renewed application is therefore refused.