By Tim Moloney QC
Appeal against Conviction
Procedure –Abandonment of Appeal
R v Guinness
 NICA 47
The issue of when an abandonment of an appeal can amount to a nullity was considered by the NICA. In 1992, the Applicant had pleaded guilty to, inter alia, belonging to a proscribed organisation (the Irish People’s Liberation Organisation) and the possession and making of false instruments (false identification documents). He later abandoned his appeal to the NICA but sought to have that abandonment treated as a nullity.
The Court conducted a thorough review of the relevant authorities and approved the case of Stewart  NICA 62. Giving the judgment of the Court, Stephens LJ explained the decision making process to be undertaken by the Court in such a case. He said :
“It follows from R v Stewart that the decision for us is whether it can be said that the abandonment was not the result of a deliberate and informed decision; in other words that the mind of the applicant did not go with the abandonment of his appeal. In R v Grant  EWCA Crim 2018 Hedley J delivering the judgment of the court stated that this question was not a question of discretion but of fact. We consider that it is for the applicant to satisfy this court that the factual basis probably exists. So in order to answer the question as to whether the mind of the applicant did not go with the abandonment of his appeal it is necessary for him to piece together what happened in relation to his Notice of Appeal dated 27 August 1992 so as to satisfy this court that probably his mind did not go with the abandonment of his appeal. That factual question requires an assessment of credibility for which see the observations of Gillen J in Thornton v NIHE  NIQB 4 at paragraphs  and . Furthermore, this application is made many years after the abandonment of the appeal. The effect is that if documents have been destroyed or if memories have dimmed with the passage of time it may prove difficult for the applicant to satisfy this court of the facts surrounding the abandonment of the appeal”
After reviewing the evidence relating to the issue of abandonment, the Court concluded that the Applicant was aware that he was making a final decision in relation to his appeal when he abandoned it in 1992. His application for the abandonment to be treated as a nullity was therefore refused.
Murder – Guilty Plea – Change of law - Jogee
R v Wallace and Kerr
 NICA 57
The NICA considered the safety of a conviction for murder when Applicants had pleaded guilty to murder on an agreed ‘foresight’ basis. The two Applicants, who were aged 18 and 19 respectively at the time of the relevant incident, appealed against their convictions for the murder of another young man. The deceased had been set on by a number of youths in 2006. He had been struck on the head with a baseball bat by another youth, Moon. He had died from the injuries inflicted by the baseball bat. The two Applicants were present at the attack on the deceased and pleaded guilty to murder on an agreed basis to the effect that they were secondary parties. The substance of that basis of plea was set out in the sentencing remarks of the first instance Judge as follows:
The prosecution and defence agreed that Wallace and Kerr fell to be sentenced as secondary parties on the basis of joint enterprise to the murder of Michael McIlveen. Wallace accepted that he saw Kerr in possession of a baseball bat and consequently he foresaw that the bat could be used by another to inflict serious bodily injury. With that foresight he proceeded to the area of the alleyway where he knew that a fight may take place. He continued to participate in the joint venture by his continued presence. Kerr accepted that at the time that he fetched the baseball bat and brought it to the scene of the confrontation in the alleyway, he foresaw that the bat could be used by another to inflict serious bodily injury. With that foresight he proceeded to the area of the alleyway where he knew that fight might take place. Further, Kerr accepted that when Moon took the baseball bat from him he foresaw that Moon might inflict serious bodily injury. He continued to participate in the joint venture by his continued presence and by the concealment of the baseball bat in the aftermath of the attack.
The Applicants contended that their convictions were unsafe should be quashed in the light of the decision in the wake of the decision of the Supreme Court in Jogee  2 WLR 681. The NICA applied the decision of the Court of Appeal of England and Wales in Johnson  EWCA Crim 1613. In that case, the Court of Appeal stated that when an appeal was out of time an applicant for exceptional leave to appeal had to demonstrate that substantial injustice would be done if they were not given such leave. That was a high threshold and determining whether that high threshold was 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. The Court also said that 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. But it was only where that high threshold was met having regard to wider considerations in respect of the finality of decisions that consideration of the safety of the conviction would arise. Where the threshold was reached it was likely to be difficult to conclude that the conviction remained safe.
In the cases of Wallace and Kerr, the Court reviewed all of the factual circumstances of the Applicant’s involvement in the incident that led to the murder of the deceased. Giving the judgment of the Court, Morgan LCJ said:
 These facts demonstrate, therefore, that each appellant was aware that one of the group of youths of which they were members had suggested a fight at the Leisure Centre. The chasing of the deceased and the other youth shortly thereafter could only have been in pursuit of that objective. Each had participated in the chase. The diversion by Kerr to obtain the baseball bat has to be seen in the context that he had been part of a group of youths chasing others in order to assault them. This was an offensive rather than a defensive action. Similarly the decision by Wallace to return to the scene of the confrontation was consequent upon him seeing Kerr with the baseball bat and recognising its potential use.
 Each appellant was aware that Moon had the baseball bat when they followed him up the alleyway in the direction of the deceased. Each recognised that the baseball bat was a dangerous weapon which if used could cause serious bodily harm. The pursuit of the deceased up the alleyway could only have been for the same purpose as the initial chase, that is to assault the deceased. In our view the inference that each appellant participated in a joint attack upon the deceased intending that Moon could use the baseball bat to inflict serious bodily injury in that attack is overwhelming.
Accordingly, the Court concluded that it was a plain case where exceptional leave to appeal out of time should not be given. It was satisfied that the convictions were safe and refused the applications.
Appeal against Sentence
Murder – Credit for Guilty Plea
R v Turner and Turner
 NICA 52
The NICA took the opportunity to deliver guidance as to the appropriate credit to be given upon a plea of guilty to murder. Both Appellants, who were brothers, had pleaded guilty to murder and were each sentenced to life imprisonment with a minimum term of 17 years to be served before they could be considered for release on licence.
The Court first comprehensively reviewed the approach that had been taken in other jurisdictions in the United Kingdom. Giving the judgment of the Court, Morgan LCJ emphasised that those particular approaches reflect the manner in which sentencing law has developed in those jurisdictions. It does not follow that guidance or guidelines that may have been thought appropriate in those jurisdictions should translate automatically to Northern Ireland. In respect of Northern Ireland, the Court concluded :
“there are likely to be very few cases indeed which would be capable of attracting a discount close to one-third for a guilty plea in a murder case. The circumstances of a mercy killing for example might possibly achieve that outcome. Each case clearly needs to be considered on its own facts but it seems to us that an offender who enters a not guilty plea at the first arraignment is unlikely to receive a discount for a plea on re-arraignment greater than one-sixth and that a discount for a plea in excess of 5 years would be wholly exceptional even in the case of a substantial tariff. We have concluded, however, that it would be inappropriate to give any more prescriptive guidance in this area of highly fact sensitive discretionary judgement. Where, however, a discount of greater than one-sixth is being given for a plea in a murder case the judge should carefully set out the factors which justify it in such a case.”
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