THE TAMING OF JOGEE?

Case and Comment

WHEN the ambit of the criminal law is narrowed judicially, what impact should this have on convictions previously secured under the disavowed, broader rules? This question was considered by the Court of Appeal in Johnson and Others [2016] EWCA Crim 1613, [2017] 1 Cr. App. R. 12.

The Court was faced with several appeals based on the decision in Jogee and Ruddock [2016] UKSC 8; [2016] 2 W.L.R. 681 (Jogee - noted Dyson [2016] C.L.J. 196). Before Jogee was decided in February 2016, D1 could be held liable as an accessory for a foreseen collateral crime B (e.g. murder) committed by D2 in the course of committing an agreed crime A (e.g. burglary). In Jogee, it was decided that this "parasitic accessorial liability" (PAL) was mistakenly introduced in 1984 by Chan Wing-Siu [1985] A.C. 168 (discussed in Stark [2016] C.L.J. 550). The correct position, it was decided, was that D1 could be liable for the murder committed by D2 only if D1 had intentionally assisted or encouraged D2 intentionally to cause at least grievous bodily harm (GBH). Foresight that D2 may intentionally cause GBH was no more than evidence of D1's intention to encourage or assist D2's offending.

In Johnson, the Court distinguished between two main categories of appellants (more complex circumstances will be ignored here for reasons of space). First, defendants who managed to appeal following the decision in Jogee within 28 days of their own convictions will succeed if those convictions are rendered "unsafe" by Jogee (Criminal Appeal Act 1968, ss. 2, 18(2)). Johnson confirms that safety will be compromised where a direction in accordance with Jogee could realistically have made a difference to the jury's decision.

Secondly, defendants wishing to appeal out of time (i.e. more than 28 days after their convictions) must demonstrate additionally that not granting leave to appeal would result in "substantial injustice" or "substantial injury" (Hawkins [1997] 1 Cr. App. R. 234, 240). It is uncontroversial, doctrinally, that a change in the criminal law is not itself sufficient to constitute "substantial injustice". Johnson indicates that, post Jogee, the relevant additional factors will be: (i) "the strength of the case advanced that the change in [Jogee] would,...