A column by Felicity Gerry KC.
The Law Commission of England and Wales has raised a serious concern in their latest consultation paper, released on the 27th of February 2025, that the development of the test for out-of-time criminal appeals risks hindering the correction of miscarriages of justice. This is especially so for those who were convicted of murder during the 30 years that the law on “joint enterprise” took a “wrong turn.” Defence lawyers know there are so many clients who are lifers who haven’t killed anyone, didn’t intend anyone to be seriously harmed, and made no material contribution to a killing, who are routinely refused permission to appeal.
Once permission to appeal is refused by the Court of Appeal (Criminal Division) (CACD), the UK Supreme Court (UKSC) has no power to hear it, so the Court of Appeal is all-powerful in this area. One case got through in 2016, probably as a retirement gift for one of the judges who had written a book chapter on the problem: In 2016, in R v Jogee, in which I led for the defence, the UKSC ruled that the law on liability for accessories to a crime, known as “parasitic accessory liability,” was an error. For at least three decades, people had been convicted as accessories to murder on the mere possibility that they foresaw a crime.
Imagine that, if your son went to watch a fight in a park with a crowd and foresaw the possibility that another person might cause really serious harm, he would have been guilty of murder and sentenced to life imprisonment. That is even if he didn’t intend any harm at all and if he made no material contribution to that crime. He would be found guilty by being “more than merely” present because a crowd is inferred to be a “force of numbers.” If he was autistic and threw something, he would be convicted of assisting murder. If he pointed or shouted, he would be convicted of encouraging murder. If he cycled to and from, he would also be prosecuted as participating in murder. These are all real cases.
Teenager Ameen Jogee was outside a house and couldn’t even see what was going on inside, and he was convicted on the basis he was there for “something.” He was convicted on the mere possibility that he foresaw a stabbing. It was a shocking error of law that took years to fix and has not ended for those affected 9 years later.
Worse still, it was an error of law that was not an accident. It was deliberately adopted in 1997 by the House of Lords in a case called R v Powell and English, in which they said it was “illogical” but still chose to give it a try, risking the liberty of the UK’s young people, particularly over criminalising and over incarcerating young black people. That terrible “development” of law was corrected to the gasp of the families of those wrongly convicted, who were in court to hear the UKSC decision in 2016. That gasp was so profound that it made the President of the Supreme Court falter — you can see and hear him wobble on YouTube. It was a moment of hope for all those wrongly convicted, all of whom would need to appeal “out of time,” which is outside the very short 28-time limit for appealing a wrongful conviction in England and Wales.
However, that moment of humanity was short-lived, and for those wrongly convicted, there was no olive branch. The same court, contrary to previous practice, created a bar to appeal for those affected by this miscarriage of law, requiring them to prove they had been wrongly convicted, a burden that has been impossible to surmount. The then Lord Chief Justice, usually sitting in the Court of Appeal, was bumped up to the UK Supreme Court to sit on Jogee. They then went back to the Court of Appeal and interpreted what was called the “substantial injustice test” as a test that the applicant must surmount, which the Law Commission has found is “unpredictable” and has such a “high threshold” that they are “provisionally satisfied” that it risks hindering the correction of miscarriages of justice. Only one man has successfully appealed. The Law Commission notes that the test was differently applied in his case. It is not yet clear why.
Meanwhile, hundreds, if not thousands, of “joint enterprise” miscarriages of justice remain unresolved. The substantive law on “joint enterprise” is outside the remit of the Law Commission consultation on appeals, but there is a Westminster Commission into “joint enterprise” running in Parliament now in which the plight of these prisoners is being revealed, along with recent concerns about further errors of law for those cases post Jogee.
The Law Commission was set up for the purpose of promoting the reform of the law. In July 2022, it was asked to conduct a review of the law governing appeals in criminal cases and consider the need for reform. This reference followed several calls from respected bodies for a review of various aspects of the law, including the “substantial injustice” test applied by the CACD when considering whether to grant leave for an appeal brought out of time based on a change in the common law (made by judges). Those cases that seek to appeal outside the 28-day time limit are miscarriage of justice cases, sometimes a long way out-of-time but with real merit. The Law Commission found that the high threshold applied to cases based on Jogee may also be deterring applicants from seeking leave to appeal their convictions at all or deterring the Criminal Cases Review Commission (CCRC) from referring miscarriages of justice cases back to the CACD.
In Chapters 10 and 11 of the consultation, the Law Commission focuses on two areas where appeals are often historic and feature claims of changes of circumstances: out-of-time appeals and the law governing the CCRC, the body mainly set up to consider historic miscarriages of justice. It highlights the fear that allowing changes in standards or changes in substantive law in an individual case to provide a ground of appeal could lead to a “flood” of appeals, so in “development in the law” cases, the CACD applies the test of “substantial injustice” in asking whether their appeal should be heard (or, in CCRC references, determined in an appellant’s favour). It is an irrational fear — the point is that these people serving life sentences for murder are not murderers at all. The reality is that this was not just a development of law, it was a deliberate error which, logic suggests, must be corrected by releasing those wrongly convicted through immediate pardons or reducing their convictions to manslaughter. It is a scandal worse than the Post Office disclosure failures, whose convictions were quashed en mass by a new law, but murder convictions for alleged accessories carry less public sympathy than cake-baking posties, even where those convicted never killed anyone. The Law Commission has bravely fulfilled its remit to highlight this area for reform.
