It is always welcome when senior courts admits mistakes have been made and seek to remedy the errors. Since legal systems are created and developed by human beings who do make mistakes it should not come as a great surprise that from time to time this does happen. It is how the system reacts after acknowledging its errors that is important. So hats off to the justices of the UK Supreme Court for their recent judgment in the case of R.v. Jogee; Ruddock v R. UKSC 8 and  UKSC 7
However, and a the risk of sounding churlish, it is a pity it has taken thirty years for this error to be noticed and a bit more than just a shame that the some of the finest jurists in the country did not spot this “wrong turn” a long time ago. They nearly corrected the error as long ago at R.v. Powell and another; R.v. English  1 A.C. 1. The official law report which includes a summary of counsel’s argument suggests that counsel for the appellants argued the very point that the case of Chan Wing-Siu v. R blurred the distinction between foresight and intention. Lord Mustill very nearly got the point. Having wrestled with the question of how to fit the Crown’s contention within the concept of joint enterprise Lord Mustill pondered:-
“How can a jury be directed at the same time that S is guilty only if he was party to an express or tacit agreement to do the act in question, and that he is guilty if he not only disagreed with it, but made his disagreement perfectly clear to P? Are not the two assertions incompatible?”
However, finding himself in a minority of one Lord Mustill threw in his lot with the majority concluding:
“There are some instances where the delivery of a minority opinion is a duty, the performance of which is not simply a matter of record, but also makes an important contribution to the future understanding and development of the law. This is not such a case.”
Thus was a chance to put things right nearly twenty years ago missed. Happily in this jurisdiction none of those who may well have been wrongly convicted of murder as a result of the court’s misinterpretation of the law has been executed. Just as well, you may think, that the UK had the sense to abolish the death penalty more than half a century ago otherwise how many more wrongful victims of the hangman’s noose would we be counting tonight? Pity the same cannot be said of a number of countries that follow the English common law and do still have the death penalty. One of those is Jamaica from which the sister case to Jogee, namely Ruddock came. The present judgment does not record whether Mr Ruddock was sentenced to death and happily there have not been any executions carried out in Jamaica since the turn of the century.
Sadly the same is not true of Pakistan or Malaysia which also follow the English common law. According to the charity Reprieve, more than 300 executions took place last year in Pakistan after a number of years with very few executions. Government estimates of the numbers on death row range from 6-8000. The deathpenaltyworldwide.org website suggests there are more than 1,000 people on death row in Malaysia although no executions have been carried out since 2014. How many under sentence of death in both countries were convicted as a result of a misunderstanding of the law about the criminal liability of accessories is not clear.
The other issue that is worth further consideration relates to what the Supreme Court said about other appeals as a result of their ruling. It is obvious this ruling will require re-consideration of a large number of convictions in the past thirty years to see if the new ruling affects the safety of those convictions. Many although not necessarily all will be murder cases. Not surprisingly the SC is not keen to have hundreds of hopeless appeals clogging up the system over the next few years. Since most of those convicted would have to apply first to the Criminal Cases Review Commission the SC sent a clear reminder, some might say warning, to the CCRC not to refer too many cases to the Court of Appeal.
It is a well established rule of English law that just because the law changes from time to time does not mean that convictions obtained under the law as it stood at some earlier time are rendered invalid or unsafe. If the government passed legislation tomorrow to say that stealing goods worth under £50 was no longer a criminal offence that would not mean that all previous convictions involving the theft of goods worth less than £50 would be unsafe or invalid. Or if the government passed legislation to increase the age of criminal responsibility from 10 at present to say 16 that would not mean that anyone convicted of an offence before their sixteenth birthday would be able to appeal against their conviction. But in both of those situations the government would have passed legislation to change the law not merely to clarify it. And that is the point. The Supreme Court in Jogee has not changed the law. The law as it has always been has simply been clarified.
So when the Supreme Court said in paragraph 100 of the judgement
“where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.”
it seems to me that that is open to challenge. The interpretation of the law over the last thirty years may have changed as a result of the decision in Chan Wing-Siu but the law itself did not change. So in that period the courts have not been “faithfully applying the law as it stood at the time”, they have been misinterpreting what the law always was.
The judgment refers to a number of previous cases cited in support of the proposition that the mere fact of a change in the law or perhaps more accurately a re-interpretation of statute law does not afford proper grounds for an appeal against conviction. But there is a difference between re-interpreting what Parliament meant when passing a statute the effect of which is to change the law and a court declaring what the common law always was. All of the cases cited relate to interpretation of the meaning of various Acts of Parliament. None of them involves a comparable situation to that now created by this decision of the Supreme Court that for the last thirty years the courts have been mis-interpreting the true position in the common law.
R.v. Mitchell (1977) 65 Cr. App. R. 185, involved the interpretation of s.37 of the Misuse of Drugs Act 1971 and specifically the definition of “cannabis”. R.v. Hawkins  1 Cr. App. R. 234 concerned false mortgage applications. The case involved the interpretation of s.15 of the Theft Act 1968 as a result of the change in law brought about by the House of Lords decision in R.v. Preedy (1996) A.C. 815. The decision in R.v. Cottrell; R.v. Fletcher  1 W.L.R. 3262  EWCA Crim 2016 relied upon a decision of the House of Lords in R.v. J  A.C. 562 that where only evidence of sexual intercourse with a girl under 16 was relied on, it was impermissible to charge indecent assault as a device to get around the then 12 month limit for USI cases. As Sir Igor Judge P giving the judgment of the court said at paragraph 25, “it is artificial to pretend the law was not changed” by the decision in R.v. J. From paragraph 42 of the judgment under the heading “Change of law cases”, the court spends almost the whole of the rest of the judgment dealing with the impact of its decision on other cases and how to avoid a flood of similar appeals, including distinguishing the cases before it from that in R.v. Bentley  1 Cr. App. R. 307. Given that Cottrell was undoubtedly a case that turned on a change in the law , not a re-interpretation of the law as it has always been, it is rather ironic as well as misleading that that case is then cited in Jogee [not a change in the law case] as a reminder to the CCRC that it too should be slow to refer appeals in the light of the present decision.
It is a regrettable that the Supreme Court has chosen to make this statement. The last thing the CCRC needs is any encouragement to decline to refer cases to the Court of Appeal. It is an organisation that I have previously characterised as one that likes to say “No”. Cowed by the Court of Appeal and in thrall to its own success rate of overturning convictions in 70% of the cases it does refer many campaigners think the CCRC is now less inclined to take a risk with a referral in a case which ought for a number of reasons to be reconsidered by the Court of Appeal but may not succeed once it gets there. It is a sure fire bet that the CCRC will be ready to quote paragraph 100 of the Jogee judgment in its reasons for not referring cases as a way of ensuring its decisions are bomb-proof against challenge by way of judicial review.
Whilst this article should not be taken to be giving legal advice it is very important that any applications to the CCRC as a result of the decision in Jogee address the argument made by the Supreme Court that old convictions should not be referred back. The argument will need to include why it is said that the case does not involve a change in the law but simply a recognition that whilst the law had not changed the courts have realised that their interpretation of the law has been wrong for the last thirty years. Such arguments cannot be left until after the CCRC has issued its provisional reasons in the hope that this can be corrected at a later stage.
It may be inconvenient to the appeal courts to have to clean up the mess left by previous courts but if injustice has been caused then obviously that must be corrected. Jogee is not a case in which the law has changed. If it were then what the SC says about fresh appeals would be perfectly valid. However, what the SC has done in this case is to acknowledge not that the law was wrong and needed correction but that the courts interpretation of the law was wrong. It is that misinterpretation that has been corrected not the substantive law itself. In those circumstances what the SC has said about fresh appeals seems to me to be open to doubt. If people have been convicted of murder when on the law as it stood at the time they should not have been convicted of anything more than manslaughter that is an obvious miscarriage of justice that the courts should be keen to correct
It is interesting that at the end of the judgment in Cottrell / Fletcher the LCJ said – “Under the present legislation a conviction must be quashed if it is unsafe. The declaratory theory of the common law appears remote from the practical realities which should underpin the administration of criminal justice. . Nevertheless the common law is not fossilised and one of its strengths is that it is indeed flexible and capable of development, and misconceptions and misunderstandings of legal principles can and should where necessary be corrected and elucidated. This judgment has sought to underline that there is a broad public interest about the way in which change of law appeals should be addressed. We share the views of the Divisional Court in R (DRCP) that these issues merit the attention of Parliament.”
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