Seeking to re-open an appeal after a final determination
R. v Hockey (Terence John)
CACD:  EWCA Crim 742
The CACD gave guidance on the procedure to be followed for making an application to re-open a criminal appeal where there had been a final determination based on the implicit jurisdiction identified in R. v Yasain (Mohammed Abdullah)  EWCA Crim 1277,  Q.B. 146.
Commentary: The general rule is that there is only “one appeal” before the CACD. Once there has been a final determination the only way back is via a reference by the Criminal Cases Review Commission. However, the CACD has an inherent jurisdiction to allow an appeal to be re-opened in exceptional cases and has done so in the past. This case set out a list of procedural requirements when making such an application pending the amendment of the Criminal Procedure Rules. The Northern Ireland experience has been similar to that in England and Wales (see Brown, Skinner and others  NICA 40 where there was an unsuccessful attempt to re-open appeals against conviction following the Supreme Court decision in Jogee; but cf. R v Walsh  NICA 4)
Post Jogee appeals and Jury irregularities
R. v Lansana (Stephen)
CACD:  EWCA Crim 740
L applied, out of time, to amend his grounds of appeal against his conviction for murder to include a post Jogee ground in relation to the joint enterprise directions at trial in 2015. He also sought to renew his application for leave in relation to a juror irregularity at trial: during the trial a white juror had been arrested and cautioned for a racially aggravated public order offence. It was argued that because of the racial element in the trial (both applicants were black, the victims were of Lithuanian nationals) the whole jury should be discharged. The judge conducted a voire dire before discharging the juror involved. She declined to discharge the entire jury.
(i) Refused permission to amend the grounds to include the joint enterprise ground on the basis that in light of the facts and the jury’s findings the pre-Jogee misdirection would not have made any difference.
(ii) The Judge was in the best position to assess the juror issue and had dealt with it appropriately.
Commentary: When considering post Jogee appeals, and whether a “new law/Jogee” direction would have made a difference, the CACD will analyse what factual findings can be inferred from the jury’s verdict. In this case the CACD was emphatic in its findings: “the jury clearly concluded...” and certain evidence “could only lead the jury to conclude”. Whilst this follows the approach in Johnson, Green, Garwood and others  EWCA Crim 1613, it may not always sit comfortably with the warnings given by Lord Bingham in Pendleton  1 WLR 72, paras 16 and 19.
In preparing for such appeals it is vital to set out what can and cannot safely be inferred from the jury’s verdict. It is submitted that where the Supreme Court has found that the previous law upon which a defendant was convicted was wrong, it is only in the most compelling cases that such conclusions should be inferred.
Removal of reporting restrictions for young offenders
R. v Markham (Stan Lucas)
(Also known as: R. v Edwards (Kim Rose))
 EWCA Crim 739
M and E, both 14 years old, carried out the brutal murder of E’s mother and younger sister. The removal of reporting restrictions was a reasonable and proportionate measure because:
(i) The facts of the case and sentencing remarks could not properly be understood without identifying that the appellants had murdered E's mother and sister.
(ii) There was no new material to justify the conclusion that lifting anonymity would cause harm to either appellant or adversely affect their future rehabilitation.
(iii) Notwithstanding that the appellants were now 15, the lifting of reporting restrictions was in accordance with law, pursued a legitimate aim, and was a reasonable and proportionate measure, properly balancing the appellants' welfare against ECHR art.10 rights and the interests of the public.
Judge’s behaviour during the trial
R. v M
CACD: 30 June 2017
M appealed against his conviction for attempted rape. At trial at one point in the cross-examination of M, the judge had intervened and then began a fresh, second extensive cross-examination of M. On appeal M argued that the judge's second cross-examination of him demonstrated bias.
The CACD dismissed the appeal despite finding that the submission regarding the judge's second cross-examination had real substance, and that the judge had "descended into the arena". It had been inappropriate: his critical tone had gone far beyond clarification. However, the question was whether the Judge’s actions undermined the safety of the conviction. The CACD concluded that it did not because M's evidence had been underwhelming and had crumbled under scrutiny.
Commentary: The CACD has quashed convictions on the basis of the trial judge’s inappropriate conduct, for example where the defendant has been prevented from presenting his case effectively, or where s/he belittles counsel in the eyes of the jury and indicates a pre-conceived belief in guilt. Each case will be fact specific. The ultimate question is always whether the Judge’s behaviour renders the verdict unsafe in light of all the other evidence. The CACD has refused to intervene in cases where the judge asked a defence witness “would you know the truth if it sat up and bit you?”, and in another where the judge accepted that he had nodded off on occasion during the trial and was woken by his own snores.
If you have questions about any of these cases please do get in touch with Paul Taylor.