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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Davies, R (On the Application Of) v The Criminal Cases Review Commission [2018] EWHC 3080 (Admin) (14 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/3080.html Cite as: [2018] EWHC 3080 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/11/2018

Lord Justice Irwin:

Introduction

1. This claimant seeks to challenge the decision of the Criminal Cases Review Commission ("the CCRC") not to refer his conviction for murder to the Court of Appeal (Criminal Division). The Claimant was convicted by a jury in the Bradford Crown Court on 5 August 2009, following a retrial of his case. He was sentenced by Langstaff J to life imprisonment with a minimum term of 35 years custodial term.
2. Edward Simpson was battered to death in his home in Bradford in the course of a planned robbery. The Claimant was not present, but was an active organiser of the crime. He was convicted on the basis of joint enterprise. Langstaff J directed the jury according to the then understanding of the law, namely that it was sufficient for guilt that a defendant was party to the joint enterprise (in this instance of robbery) and foresaw that as part of that joint enterprise serious injury might be inflicted on the victim. As is well known, the Supreme Court in R v Jogee [2016] UKSC 8 ruled that the law requires intention, not merely foresight, on the part of a defendant before he may properly be convicted. It follows that in giving the direction he did, Langstaff J unwittingly misdirected the jury. All that is agreed.
3. The essential issues here are the impact of that misdirection in this case, how it should have been viewed by the CCRC, and the approach of the Court to decisions by the CCRC.
4. The Claimant has already pursued an appeal before the Court of Appeal in 2010, reported as R v Daniels and Others [2010] EWCA Crim 2740. That appeal was advanced on different grounds and was rejected. As we shall see, there was one important error of fact in that report, which in my view was important in the grant of permission to seek judicial review.

The Evidence at Trial

5. There remains no issue for present purposes that the Claimant was party to the plan to rob the deceased of a substantial sum of money, and of drugs. Indeed it is accepted there was overwhelming evidence of his organising role in the enterprise.
6. The following critical points of evidence are summarised or quoted from the summing-up of Langstaff J to the jury. Page references are to the internal preparation of the summing-up.
7. An important feature of this case was that evidence was given for the Crown by a man known as Sonny Stewart. He had been one of those involved in the robbery plan. The Crown accepted a plea of guilty to manslaughter in his case, dropped the murder charge and adopted him as a witness pursuant to Section 73 of the Serious Organised Crime and Police Act 2005. It was this aspect of the case which was the focus of the appeal in 2010. The Court of Appeal concluded that this matter had been properly handled and rejected the submission that the convictions were unsafe on this ground.
8. Cell site evidence was "consistent with" the Claimant and Stewart being "together all night" on the evening of the robbery (p.31). Stewart and the Claimant had "… more or less grown up together. They were very close…" There was evidence of very frequent contact between them over the ten or eleven days before the robbery (p.44). Evidence of the planning discussion was that the Claimant was "enthusiastic" about the suggestion of robbery, which had come from the co-defendant Johnny Daniels (p.45). Stewart then said:

" "They must have had a conversation in between when I wasn't around, because it was like it was down to two people to rob. They said that the 50 grand had come from a kid called Teddy. Johnny Daniels said it was what he was owed, so he went round and took it. It had been owed to him for protection. Daniels said that Teddy Simpson was worth robbing, 'He's got money. More than I robbed him of, plus a shipload of drugs coming in as well'". And Daniels, thought Stewart, seemed to know Teddy Simpson. He thought it would be quite easy to get the money from Teddy Simpson. "And there was supposed to be a couple of hundred grand in the house, plus the drugs when they came". And he said the decision was made about Edward Simpson.

The way that he put it was this. "The logistics were not discussed in my presence. I think Daniels wanted Davies to do it. Davies didn't want to. He thought there ought to be someone else to do it. Jigger didn't really want to do it, that was clear at the meeting". But he then went on to say, well, it has been over two years ago. "Daniels was on a tag. He couldn't leave the house, he couldn't do it. He didn't want to tell Daniels that, he told me, he approached me. He added …", I am sorry, "… he asked me did I know anyone who wanted to do it"." (p.45)

"Jigger" is the Claimant's nickname.

9. There was then an important piece of evidence, indeed evidence which Ms Gerry QC for the Claimant says is absolutely critical. After discussion of the presence of CCTV at Simpson's house, the location of the CCTV tapes and of the money in the house, Stewart's evidence went on as follows:

"They said that Teddy Simpson was a shiverer. 'If you look intimidating, got presence about you, he'll give it to you straight away. You don't have to do much or use any violence'. It was left like that after the second meeting." (pp.45/46)

10. Once the robbery had been planned in outline, it will be understood that part of the arrangement then was that the robbery would be actually carried out by men from Leeds, recruited from outside Bradford. These men transpired to be Decosta Daniel, Witten and Cameron and were referred to at the trial as "the Leeds men". The Claimant was said to have rung Daniels and Stewart a number of times, anxious that the Leeds men should be recruited and the robbery planned.
11. There was a further piece of evidence from Stewart, later in the sequence of events before the robbery. "Sticker Lane" is a reference to Simpson's address:

"But that phone call is very close to the CCTV footage of the cars driving past, the two of them driving past Sticker Lane, in the course of which Stewart says that Davies pointed out Sticker Lane to the men behind and made a phone call to that effect. Well, they went to Fenby Avenue. They parked up, says Stewart. He said Anthony Davies got out, he said to them "'Right, you know what to do. You don't need to hit him, just threaten him. Threats will be enough. Make sure you get the tape, ring when you're in the house'. Then he got back into my car, the Laguna, we turned round and we drove back to Sticker Lane and then to 21 Hope Avenue, my house". So Stewart, Davies, Mumtaz Ali, on his account, going to 21 Hope Avenue, leaving the Leeds men in Fenby Avenue about to drive down Sticker Lane and into 310, and there to do what it is said, if this account is right, is a robbery in which the threat of force is enough." (p.72)

12. There was an issue at trial concerning the Claimant's movements during the evening. The Crown case was that he was with Stewart throughout most of the night and was fully engaged in the communication about matters as they developed.
13. There is no dispute that the robbers took an imitation firearm and a large adjustable wrench to the scene. Simpson was beaten with the wrench, causing very severe, and in due course fatal, injuries. However, he did not die immediately.
14. The defence case was that, unexpectedly Simpson did not quickly give in, but in fact produced a knife immediately as the incursion took place. Those defendants who gave evidence argued it was the production of the knife that led to the violence. A knife tip was found on the hall floor just behind the back door (pp. 121/122). There was one defensive injury found on the body of the deceased, a cut to his little finger (p. 126). The defendant Cameron was said to have been cut by the knife used by the deceased, although he declined to go to hospital that night.
15. The violence was extreme. There was impact splatter of the deceased's blood in the hallway. The marks suggested to the forensic scientist that Simpson had been hit in the hallway, while Simpson was in a kneeling position. He was then dragged into the kitchen, dragged from the kitchen back to the hall and into the lounge (p.78). On and around the sofa in the lounge were blood stains and blood mixed with water. The evidence suggested to the expert that Simpson's face had been pressed into a cushion (p.78), suggesting stifling or suffocating him (pp.78/79). Inside the cushion cover was "thick heavily-clotted blood", and the cover had a knot around the bottom of it. The outside of the cushion was wet. This suggested the cushion cover had been placed over the head of the deceased, the neck had been "narrowed with the ligature" and water poured over the deceased's head inside the cover (p.79). The state of the sofa suggested a lot of water had been used.
16. The stains on the wrench linked it directly with the blows to Simpson. Bloodstains near a child's ball pool in the sitting room suggested another direct blow to Simpson's head there.
17. During the robbery, another man called Folkard arrived at the premises. He had arranged to visit Simpson, and went to the house but got no answer to his knock or to a phone call. He then went back to the door. His evidence was then summarised as follows:

"And he went to the door and as he was about to knock it again it opened. Everything happened very fast, he was dragged in. He was hit over the head immediately. There were several blows to the head with he thought an iron bar – now you may conclude, members of the Jury, that was probably a frying pan – and a wrench, an adjustable wrench. One of the men there had a stockinged mask and said "Open your fucking mouth or we'll kneecap you", forcing a gun between his teeth as he did so. And you know that although when the gun was picked up later on by a couple of people out with a metal detector in Judy Woods, and it was wiped by them, one handed it to the other, as they told you, in the statements which were read, they had not obviously wiped the muzzle bit where the blood was found which was consistent both with Gary Folkard and with Edward Simpson. And so you may think that at some stage during the events of the evening this imitation firearm looked like the real thing, that had been pushed into both their mouths." (p.77)

18. The robbers removed Simpson from the house while he was badly injured, but still alive. He was placed in a van. There was then important evidence from Stewart about a phone call to the Claimant, of which he could hear one end, and about which he was told by the Claimant:

"Then, as he said, Anthony Davies got a phone call, he thought from Decosta. And Decosta said the "Leeds guy had gone", he, Decosta, was upset with Darren Martin. He said this. "Why have you sent this kid up here? He's hitting the guy". He said he was using "Tin snips" and cutting. Now this was not Darren Martin saying anything, this phone call was not anyone saying anything directly to Sonny Stewart, this was Decosta speaking to Davies and it is Stewart's report of what he understood the phone call to be about. He said, "Because Davies relayed it to me, he told me what was said".

And Davies reacted to it, he told you about the reaction which was in his presence. He reacted to it by laughing, saying "He's a game lad, Darren, he's a game lad". And he commented, Davies appeared to be enjoying it." (p.87)

19. In a careful direction, the judge explained to the jury that this was not evidence against Darren Martin because, as against him, the evidence was hearsay. However, it was evidence against the Claimant:

"And this is evidence in the case of the trial of Davies. Why is it evidence in his case? Well, it is evidence that he had an enthusiasm for violence. It is his reaction that matters. Not so much what was said, but the fact he was endorsing it, he was loving it, according to Stewart. And violence against a man who had been abducted. Now that is evidence, if you accept it, which speaks of what he foresaw. He had no surprise, no apparent surprise at what was happening, only pleasure. Now is that the reaction of someone who never expected serious violence to be used at all? That is why the Crown want you to hear that evidence." (p.88)

20. It was admitted that the Claimant had lied in his interview with the police about not knowing of the van. The evidence was that the Claimant had asked Darren Martin to supply the van (p.86).
21. The deceased was eventually found dead in the grounds of a deserted nursing home. The scientific evidence was that Simpson had survived between one and six hours from the infliction of the fatal head injuries. The evidence as to injuries was as follows:

"Now you can see the external injuries, the pictures perhaps speak all too graphically for themselves. What you cannot see are the internal injuries, so I will remind you of what Professor Milroy said about some of those. As to the facial bones, he said both the cheeks and the nasal bones were shattered with multiple fractures. The throat, what he described as the "Voice box cartilages", were broken with extensive bleeding. There had been, he concluded, a very heavy impact to the head, for instance by repeated stamping. The voice box could have been stamped on or it could have been a compressive force such as an arm-lock or a wide ligature such as a wide piece of clothing which would have compressed the neck. The result, the brain was swollen. That he thought was a reaction to the damage. There was extensive bleeding on the brain surface and the damage to the brain had been inflicted in life, it was not after death.

…

He told you that seven to nine ribs to the back were fractured by a heavy impact to the chest. The ribs had been displaced by the fracture, forcing the ribs into the chest cavity. A lung was punctured, it had collapsed, the right lung. Both shoulder blades were fractured. Heavy blows, he said, were sufficient to do that. There would have to be at least one blow to each scapula, each shoulder blade, separate from the blow or blows to the rib-cage.

What was the cause of death? Multiple injuries. The head, brain damage; the rib-cage fractures and the lung damage would have added together. The weapon. He said many were by stamping. There were no injuries to identify the sort of weapon, the wrench might account for some. And he cannot say in what order the injuries occurred. They were recent, that is, up until one hour before death.

Now you will have to consider, bearing in mind the account which I took you through yesterday of what Dr Klaentschi found in the hall, you remember the impact splatter, someone on their knees or on the floor, whether that was caused by a weapon, whether it may have been caused by stamping, a matter for you to decide. When cross-examined by Mr Kelson he said the impacts to the head would have caused brain injury. Most of the bleeding injuries were to the head. And he said punching in the face would not be enough to cause it, but breaking of the facial bones by a wrench could do it. So he was saying the blood in the head, the bleeding injuries, would not be caused by punching, you would need a weapon such as a wrench.

Brain injury would make a person unconscious. It is possible to recover, but it is more likely that once rendered unconscious you would stay that way. He was cross-examined by Mr Swift and he was asked about Injury No 3 which we have just looked at, and he said there were actually five lacerations but they had been caused by blunt trauma in what he thought was a single blow. So that is blunt trauma, single blow to the eyebrow or eyelid. And Injury No 6 was similar. And he asked about Injury No 20. Again, Figure 8. And he was told that damage was consistent with a clamp being applied to the ear and it being pulled. And that the wrench would have been capable of it." (pp.126/128)

22. The final piece of direct evidence, significant for present purposes, addresses the Claimant's reaction when he learned that Simpson had died.

"Well, next morning. Sonny Stewart says "I'm in bed, and some time round about 9 …", he first thinks 10 then it becomes later as his account develops, he says he was woken by Anthony Davies, "Who was frantic. He came up the stairs and said 'Get up. He's dead, he's dead. He's dead, get up'". He said that Darren Martin was outside in a green Suzuki, and they drove off in that car. He spoke to Darren Martin. Stewart said to him, "It's all your fault", and he gripped his shoulder. Well, Anthony Davies removed his hand from his shoulder and Stewart told you, neither Darren Martin – or Darren Martin did not seem to be bothered." (pp.131/132)

23. The jury also heard bad character evidence bearing on the Claimant. He had a number of previous convictions, including offences of dishonesty, supply of drugs. They heard evidence from a witness Joseph Gordon, who was himself a drug addict and a drug dealer, who got into debt to the Claimant. He described three episodes when he was subject to or threatened with violence by men, including the Claimant. His evidence as to the first incident was unchallenged, save as to some detail:

"The first incident must have been a day or so before the 7^th July of 2007. Why, because on the 7^th July Gordon went to hospital. This was an attack which sent him to hospital. In Great Houghton Road, approached, he said, by Jigger, by Darren Martin and by an Asian called Noddy. They beat him up, they broke his nose, they knocked his teeth out. He said "Teeth", the medical report from the hospital said "Tooth", he already had missing teeth. Gordon told you, well, he had had a tooth missing before, but it was still teeth. He damaged his ribs, bruised his kidneys.

In cross-examination he said "Well, I accept I squared up to Davies", surprised in the street by Davies looking for his money, he on his own, Davies with his two fellows and a man called Foxy who had set up the meeting. And it was suggested to him by Mr Kelson on Davies' behalf, that what happened was simply that Jigger had "Got one in first". Well, Joseph Gordon maintained in fact that Darren Martin had thrown the first punch at him. After he had been attacked, he said, he was on the floor and he told you that when he was on the floor Davies had said to him "It's not over. I still want my money. Next time I'll cut you from here to here"." (pp.147/148)

24. Gordon's account of the next subsequent episode involved a threat of violence to force him back into dealing in heroin. The third episode was of an assault by the Claimant asking for money. This was said to consist of a group attack, with punching and kicking (p.149).
25. There was separate evidence before the jury, in the form of a taped conversation in which the Claimant was "heard directing an attack on a man" (p.146). This Court has not heard that tape, but it was put to the jury by the judge as follows:

"Well, again, how do you use that evidence, taken together with the agreed facts of that dreadful conversation, conversations, recorded on the motorway where Davies is directing – is heard directing violence and appears to be glorifying in it? You do not convict Davies out of prejudice. So how is this more than prejudice, if it is? A matter entirely for you whether it is. And the answer, if you want to look at it that way, a matter entirely for you, is perhaps this, the Crown will say this tells you what sort of person Davies is, and that is relevant because is he the sort of person who would have behaved as Stewart suggests, getting involved in a robbery and a murder? Secondly, is he the sort of person who would have foreseen the use of violence? This man uses violence casually to enforce drug debts. What does he expect if three men go into Edward Simpson's house at night, his home, to rob him of a quarter-of-a-million pounds, when he is on his own, a man in his fifties."

26. It was against that backdrop of evidence that the CCRC was called on to refer the case back to the Court of Appeal.

The Decision of the CCRC

27. The decision of the Supreme Court in Jogee was handed down on 18 February 2016. The Claimant re-applied to the CCRC on 4 July 2016. (He had made an earlier application after his 2009 conviction). The CCRC made a provisional negative decision on 20 March 2017. The Claimant therefore advanced further submissions. The CCRC made its final decision against referral on 29 September 2017. This is the decision challenged. The two decisions require to be read together, as giving the reasoning of the CCRC.
28. In the provisional decision of March, the CCRC recited some of the key circumstances of the case, consistent with the summing-up. The letter summarised the prosecution and defence cases as to the role of the Claimant as follows:

"It was the prosecution's case that you organised the robbery and that you must have realised that during the course of that robbery the robbers might inflict serious violence on the victim. The prosecution relied upon evidence of your bad character, in particular an instance where you were heard to be directing a violent assault on another man who owed you money for drugs, and evidence of your use of violence and intimidation towards another man in order to make him deal drugs on your behalf. It was said that you were someone who delighted in inflicting serious injury on others and that you had positively encouraged the violence towards Mr Simpson.

Although you did not give evidence at the trial, it was your case that you did not foresee that your co-defendants would inflict serious violence upon the victim and that you had no intention to kill him or to cause him really serious harm. You challenged the prosecution's evidence on the basis that the case against you was circumstantial, the cell site evidence was unreliable and Sonny Stewart was serving his own ends and could not be relied upon as a witness of truth."

29. The CCRC then noted the effect of Jogee, including the indication in that case that:

"Jogee indicated that in most cases that predated it, the judge's directions to the jury may well have included a "foresight" direction – but this does not mean that in every case where the judge directed the jury in this way, a conviction should be overturned."

30. The CCRC went on to consider the decision of the Court of Appeal in R v Johnson & Others [2016] EWCA Crim 1613, where the Court addressed the proper approach to pre-Jogee cases decided under the "old" law of joint enterprise. The CCRC summarised that case as follows:

"- A mis-direction on this aspect of the law in itself will not make a conviction unsafe: it depends on the facts of the case.

In addition, for people who were lawfully convicted under the "old law", (as distinct from the law as it is now understood) the Court will not quash a conviction, following a reference by the CCRC, unless there is "substantial injustice".

The burden is on the applicant to show "substantial injustice". It is a "high threshold".

It will not be enough that the correct direction might have led to a different verdict. "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" to the verdict, (Johnson, paragraph 21)

Cases where the jury had concluded/the evidence showed that a secondary party knew that others in his group were armed, but nonetheless joined in committing a violent crime with them were unlikely to involve a substantial injustice – because those facts were likely to be strong evidence that the secondary party also intended to commit really serious harm.

The Court will also consider whether the secondary party was guilty of other, though less serious, criminal conduct.

The Court will examine the matters before the jury and what can be inferred from their verdicts, having regard to the prosecution case, the defence case, the directions to the jury and the route to verdict."

31. The letter noted that the CCRC cannot refer a case to the Court unless there is a "real possibility that the Court of Appeal will quash the conviction". The CCRC noted that their task is the application of a "predictive test". It followed therefore that for a reference to be made in a case such as this, there must be "a real possibility that the Court of Appeal would find that a substantial injustice has been done" (reflecting the decision in Johnson) and "a real possibility that the Court of Appeal would find that the conviction is unsafe".
32. The CCRC letter then set out the Commission's approach. The writer acknowledged the misdirection. The writer noted that the "route to verdict" document given to the jury, so as to provide a structure for their decision making:

"… requires the jury to have reached the following factual conclusions in order to convict you:

That you played a part in the attack upon the victim which led to his death, be that through planning, or providing assistance or encouragement.

That you realised that one of the attackers might cause serious harm to the victim, intending when he did so to cause him such harm.

That the acts performed by the attackers were not of an entirely different nature to the acts that you foresaw."

33. The CCRC went on to record their view that there was sufficient evidence to support a conviction on the basis advanced. The Claimant was the organiser; caused the men to enter the victim's home; and "you must have realised that serious harm would be inflicted on him". Given the pre-planned nature of the robbery the intention to carry off substantial sums of money and drugs, the Commission concluded:

"The use of really serious violence must have been within the scope of the plan to which you each gave your assent and intentional support; the use of force must have been contemplated in circumstances where the victim did not hand over the items willingly or sought to raise the alarm."

34. The CCRC emphasised that extreme violence was inflicted on the victim in the hallway "seemingly very soon after the door was opened". The violence was with weapons not fists, there was only one possible defensive injury and there was no evidence to show an escalation of violence "…when the attackers could not obtain what they sought. The violence began as soon as they entered the property".
35. The CCRC went on to point out:

"You clearly exercised a significant level of control over the operation and were instrumental in setting it up. The cell site evidence was consistent with you being in the company of Sonny Stewart throughout; telephone evidence showed the level of contact between you and the other defendants at the relevant times. It was you who instructed Darren Martin to bring the replica firearm and pass it to Errol Witter for use in the robbery. At the final briefing with the men from Leeds, it was you who told them to go and get on with it and ring you when they had done the job. When you were informed that the victim had been moved from the house in the back of a van, you contacted Darren Martin and instructed him to bring another van into which the victim would be transferred. A van that was registered to you was present when the body was dumped and later found burned out.

The prosecution contended that the way in which the victim was handled and treated after his removal from his home demonstrated that you and your co-defendants were all well aware that serious violence would be used against him. No-one was shocked that he was moved, no-one tried to stop it or stepped in to take him to hospital or expressed any displeasure at what others had done to him. When you were informed that Darren Martin was hitting the victim and using tin snips to cut him, you endorsed and encouraged it, showing no apparent surprise at what had evidently occurred and the level of continuing violence.

In these circumstances, despite the misdirection, the CCRC considers that any argument that a post-Jogee direction would, in fact, have made a difference to your case is not sufficiently strong to raise a real possibility that the Court would conclude that a substantial injustice has been done."

36. On that basis, the CCRC indicated their provisional decision not to refer.
37. The Claimant then instructed fresh counsel, who made further submissions to the CCRC. Those were submitted on 29 July 2017. These addressed the facts, and the meaning and effect of the decision in Johnson. It was submitted that this case was not at the "wrong end of the spectrum of cases" indicated in Johnson. It was submitted that there was:

"… unambiguous evidence before the jury that those carrying out the robbery were asked and were expected to threaten the victim ('V') but were also told not to physically attack him." (emphasis added)

This assertion was an error, but it may have originated from a similar mischaracterisation of the evidence which crept into the judgment of The Court of Appeal in 2010. It is accepted by Ms Gerry for the Claimant that there never was an instruction not to mount a physical attack.

38. The submissions went on to analyse the evidence and suggest that the post-Jogee direction might have led to a different verdict: it is asserted that the evidence rehearsed "taken together amounts to a compelling case that the evidence on the question of intent is insufficient to support a conviction [for murder]".
39. In their final decision of September 2017, the CCRC considered the submissions made. The Commission concluded:

"In the CCRC's view, if the victim had been subdued at the doorway, as a result of his actions in stabbing Robert Cameron, this can clearly be taken as evidence that the men were more than content to use extreme physical violence against the victim in order to get what they wanted from him, i.e. money and/or drugs. This is entirely inconsistent with your earlier submissions that the plan was only to threaten him, and in fact clearly supports the prosecution case that the use of really serious violence must have been within the scope of the plan and must have been sanctioned in circumstances where the victim was non-compliant."

40. The CCRC also accepted that evidence concerning the Claimant's actions after the assault in playing a part in the disposal of the body, was not –

"evidence of your intention per se but the evidence of how the deceased was treated after he was taken from the house did provide support for the case that serious violence was within the contemplation of all parties".

The matter of bad character had been properly handled. In other respects, this letter repeated the established position of the CCRC in respect of the evidence. For these reasons, expressed more expansively in the letter, the CCRC concluded that –

"any argument that a post-Jogee direction would in fact have made a difference to your case is not sufficiently strong to raise a real possibility that the Court would conclude that a substantial injustice has been done."

The CCRC was unchanged in its view, and declined to refer.

The Basis for CCRC Referrals and the Approach of the Court

41. The Commission is obliged to approach each case applying the test laid down in S13 of the Criminal Appeal Act 1995:

"13 - Conditions for making of references.

(1) A reference of a conviction, … shall not be made under any of sections 9 to 12B unless—

(a) the Commission consider that there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made,

(b) the Commission so consider—

(i) in the case of a conviction, … because of an argument, … not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it …"

42. The approach of the Commission has been considered by the Courts on more than one occasion. It is sufficient here to cite only two authorities. In R v Criminal Cases Review Commission, ex parte Pearson [1999] 3 All ER 498, [2001] 1 Cr App Rep 141, Lord Bingham CJ said:

"The "real possibility" test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld. The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated. The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not." (pp. 149F to 150A)

43. The further helpful clarification of the role of the Commission, and the approach of the Court to review of the Commission, was given by the Divisional Court in R (Charles) v CCRC [2017] EWHC 1219 (Admin), where Gross LJ said:

"65. The question is not straightforward. First, as already seen, the exercise of the power to refer, including its predictive element, is a matter for the judgment of the CCRC, not the Court – and is not to be usurped by the Court. Secondly, the CCRC has a discretion not to refer, even when the threshold conditions are satisfied. Thirdly, in many cases (perhaps most but I do not know) the issue for the CCRC will not give rise to "bright-line" decisions on substantive criminal law at all; for instance, cases where a reference is sought on grounds of fresh evidence or an alleged failure to give proper disclosure. Fourthly, questions of some awkwardness could arise as to the role of this Court and that of the CACD were this Court purportedly to decide unsettled issues of substantive criminal law definitively for itself. All of this points towards the Court being slow to intervene where the CCRC has taken a tenable and not irrational view, whatever the Court's own view might be. That said, I would be unwilling to say that there could not be cases where the CCRC's decision was vitiated by an error of substantive law – though it may well be that in such a case the matter could simply be disposed of by the conclusion (ex hypothesi readily arrived at) that the CCRC's decision was not tenable."

The Effect of a "Foresight" Misdirection post-Jogee

44. As I have set out above, the Commission considered the effect of Jogee and after-coming authority in particular the Johnson case. It is helpful to consider those authorities before turning to the submissions made in this case.
45. In Jogee the judgment of the Court was given by Lord Hughes and Lord Toulson, with whom the remainder of the Court agreed. After reviewing authority across many jurisdictions, they emphasised the requirement for intention on the part of an accused accessory, and that was the critical change in the law flowing from the decision. However, they also emphasised how such an intention may be established, and established on a conditional basis:

"92. In cases of secondary liability arising out of a prior joint criminal venture, it will also often be necessary to draw the jury's attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional. The bank robbers who attack the bank when one or more of them is armed no doubt hope that it will not be necessary to use the guns, but it may be a perfectly proper inference that all were intending that if they met resistance the weapons should be used with the intent to do grievous bodily harm at least. The group of young men which faces down a rival group may hope that the rivals will slink quietly away, but it may well be a perfectly proper inference that all were intending that if resistance were to be met, grievous bodily harm at least should be done."

46. Lords Hughes and Toulson went on to consider past convictions. They emphasised the "effect of putting the law right is not to render invalid all convictions which were arrived at" following faithful application of the law as it was formerly understood:

"100. ….The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, 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. This principle has been consistently applied for many years. Nor is refusal of leave limited to cases where the defendant could, if the true position in law had been appreciated, have been charged with a different offence. An example is Ramsden [1972] Crim LR 547 , where a defendant who had been convicted of dangerous driving, before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence, was refused leave to appeal out of time after that latter decision had been published. The court observed that alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. Likewise in Mitchell (1977) 65 Cr App R 185 , 189, Geoffrey Lane LJ re-stated the principle thus:

"It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction."

For more recent statements of the same rule see Hawkins [1997] 1 Cr App R 234 (Lord Bingham CJ) 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] 1 Cr App R 150. As Cottrell and Fletcher decides, the same principles must govern the decision of the Criminal Cases Review Commission if it is asked to consider referring a conviction to the Court of Appeal: see in particular para 58."

47. In the Johnson case, the Court of Appeal considered the approach to this category of case. The Court pointed out that appeals brought outside the time limit of 28 days from conviction laid down in S18(2) of the Criminal Appeal Act 1968 fall into a different category from those brought in time. Even in the instance of cases brought within the time limit "the fact that the jury was correctly directed in accordance with the then prevailing law does not automatically render the verdict unsafe: paragraph 9. In relation to appeals brought out of time, leave to appeal is required and an extra hurdle introduced to the process: paragraph 10. The Court can exercise an inherent power to limit the retrospective nature of its decision: paragraph 10. The Supreme Court in Jogee approved the practice described by Lord Bingham in R v Hawkins [1997] 1 CAR 234 at 240: "… of eschewing undue technicality and asking whether any substantial injustice had been done": paragraphs 11, 12 and 13.
48. The Court went on to be explicit that, in exercising its discretion as to referral, the Commission had to "make its assessment of alleged miscarriages of justice in the light of the approach of this Court", paragraph 14. Thus, in respect of appeals out of time, "including second appeals brought through the Criminal Cases Review Commission" it is necessary to identify whether there has been a "substantial injustice" (paragraph 15). The fact of this change in the law "is plainly, in itself, insufficient" (paragraph 18). Leave to appeal will not be granted "without it being demonstrated that a substantial injustice would otherwise be done" (paragraph 18).

"18. …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."

49. That approach had the support of the Supreme Court in Jogee paragraph 100, itself approving the decision of the Court of Appeal to the same effect in relation to an earlier legal correction; in R v Cottrell and Fletcher [2007] 1 WLR 3262.
50. The Court emphasised that for an applicant out of time to demonstrate that a substantial injustice would be done unless there was an appeal represented a "high threshold": paragraph 20. They went on:

"21. 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."

51. The approach to the "substantial injustice" test has been considered in a few cases since the decision in Johnson, but only one was the subject of submissions from either party to us. In R v Crilly [2018] EWCA Crim 168, the Court of Appeal concluded, on the facts of that case, that in that instance foresight of serious violence could not be equated with intent, and there would be a substantial injustice in maintaining the conviction. The facts were specific and important. That Appellant engaged with others in a burglary in what were expected to be empty residential premises. When the property was found to be occupied, he tried to persuade his co-defendants to leave, but they would not. The Appellant took part in a search for money, which was unsuccessful. At that point, one of the co-defendants became angry and attacked the elderly occupant, killing him. The Appellant's response to the assault was to leave the premises and not return, although he waited outside. As the Court concluded:

"38. The most likely scenario as the case has been presented to us (and the fairest scenario for the purpose of this appeal) is that that this was planned as a burglary of an unoccupied dwelling house. It was not planned as a robbery and no violence was initially intended. It went wrong with fatal consequences because the householder, Mr Maduemezia, could not and did not hear the door bell. When Flynn attacked Mr Maduemezia, the applicant continued to participate in the robbery despite having the foresight that Flynn would cause Mr Maduemezia really serious bodily harm with the intention of doing so. The case was perfectly properly, as the law then stood, presented to the jury on that basis. The applicant is in a very different position from his co-accused. He was not accused of intending or foreseeing any violence when they arrived at the flat, he was not accused of inflicting the violence and he was not accused of intending to cause grievous bodily harm. Furthermore, there was only a very short time between the discovery of Mr Maduemezia at home and the conversion of the burglary into the robbery with the infliction of the violence that killed him. The violence does not seem to have been a sustained and savage attack; it may have been solely a push and a punch.

39. On that basis, the facts of this case (again we emphasise the facts as we feel obliged to take them) do not fit easily into the examples given at R v Johnson at paragraph 21 of the spectrum of offences. If crime A was the burglary of an unoccupied dwelling the offence would undoubtedly fall easily into the lower end of the spectrum, but in our view crime A is the robbery. The robbery was not a crime A at the upper end of the spectrum because no weapon was carried to the scene or used, the joint enterprise involving the threat or use of force was formed at the very last moment and the physical violence was limited. However, nor is this an offence at the bottom of the spectrum because robbery always involves the threat or use of force. We place the robbery between the middle to the lower end of the R v Johnson spectrum."

52. On that basis exceptional leave was granted, the Court concluded the conviction was unsafe and the appeal from the murder conviction was allowed.
53. It is important to emphasise that the Court of Appeal in Crilly expressly approved and applied the approach laid down in Johnson: see paragraphs 36 and 37.

The Submissions

54. Ms Gerry's submissions can fairly be summarised as follows. As to the facts, the "plan here was not to use violence", because the victim was a "shiverer" and violence would not be necessary. Simpson's unexpected resistance when the robbers arrived at the house, including the fact that Simpson produced a knife to defend himself, could not be laid at the door of the Claimant. The preponderance of the evidence was that there was no intent to cause serious injury. It was irrational on the part of the Commission to focus on "the evidence with least weight", that is to say what happened in the house when the Claimant was not present.
55. As to the law, Ms Gerry accepted that the challenge to the Commission's decision had to be that the decision was irrational, or that the Commission had misdirected itself in law. Apart from the irrationality on the evidence summarised above, Ms Gerry submitted that the Commission misdirected itself, in effect, by permitting the remarks of the Court of Appeal in Johnson to divert the Commission from the statutory test laid down in the 2005 Act. The statutory test remained the necessary approach, and the "substantial injustice" test was a diversion. It was in any event unarguable that an unsafe conviction for murder, with decades of imprisonment still to be served, was other than a substantial injustice.
56. In reply, Ms Clover emphasised that this Court is not concerned with forming a view as to whether the Commission's conclusions were right or wrong, merely whether they were perverse or irrational. The Commission accepted throughout that there had been a material misdirection. It was correct on the part of the Commission to consider whether there was arguably a substantial injustice in this case, following the formulation in Johnson. That was intrinsic to and required by the statutory test: in addressing whether there was a "real possibility" that the Court would quash this conviction, the Commission was bound to take into account the approach the Court would adopt to such an appeal. It was certainly not irrational to do so.
57. As to the facts, the essential facts were not in dispute. All the arguments advanced were directed to the interpretation of the agreed facts, and the inferences the Commission had drawn from those facts. There was no proper basis for criticism of the approach of the Commission.

Analysis and Conclusions

58. It is helpful to begin by addressing a side issue, acknowledged by all to be so. However it arose, it was an error in the reported judgment of the Court of Appeal in 2010 to suggest that when the Claimant was instructing the "Leeds men" just before the robbery, that he had told them "to simply threaten the deceased and not to hit him" (paragraph 13). That was not the evidence. It is significant only in that the error was repeated in the submissions of Ms Trowler QC and appears to have been significant in the grant of permission to apply for judicial review by HHJ Bird. If it had been true, it might have cast something of a different light on this case. It was not.
59. In my view there is nothing in the criticism of the approach taken to the law by the Commission. Since their task is to predict a real possibility of a successful appeal, they are bound to do so from the starting point of examining the legal approach which will be taken by the Court to the case in hand. Hence, the requirement that there should be demonstrated that "substantial injustice" before such an appeal should be permitted to progress, was bound to be incorporated into the thinking of the Commission. Implicit in some of the submissions from Ms Gerry was the idea that Johnson was wrongly decided, with the result that the "high threshold" was too high. The need for "substantial injustice" has been laid down in long-standing authority, and has been explicitly approved by the Supreme Court in Jogee and the Court of Appeal in Johnson. It can be no part of the role of the Commission to take a different view, and proceed as if that test was misguided.
60. In my view, the decision in Crilly adds nothing to the approach here. As I have noted above, the Court of Appeal expressly confirmed the ratio laid down in Johnson. Crilly does not represent any "developing" of the law, merely an application of the established approach to particular facts. I reject the Claimant's submissions here.
61. Of course, it would amount to substantial injustice if a wrongful murder conviction were to stand. In this case the issue is whether the argument that the conviction was unsafe is clear and powerful, rather than something more technical, narrow or theoretical.
62. In my view this case is very far from unsafe. It is very far from the facts to suggest, as Ms Gerry was driven to do, that there was a "plan" here to proceed with the robbery, but without violence. There is all the difference in the world between planning to proceed without violence, and planning to proceed and to use violence only if need be. The latter falls into the category of "conditional intent" as the Supreme Court indicated in paragraph 92 of Jogee set out above. In my view there is every indication here that such was the plan. The early extreme violence to Simpson and to Folkard; the carrying of the weapons to the premises; the active approval and encouragement by the Claimant of torture, as matters unfolded, supported by the Claimant's bad character, all come together here to make an extremely strong case for the necessary intent. I see no realistic prospect of another outcome from a retrial on the same evidence. I see no sensible basis on which this conviction should be regarded as unsafe, let alone constituting substantial injustice.
63. More to the point, I see absolutely no basis for concluding that it was irrational on the part of the Commission in reaching the same view.
64. For those reasons I would dismiss this application for judicial review.

Mr Justice Kerr:

65. I agree.