What is ‘substantial injustice’ for the purposes of a criminal case review?
27 November 2018
Sapan Maini-Thompson is an LLM Candidate at University College London.
On 14th November 2018 the Divisional Court gave judgment in a claim against the Criminal Cases Review Commission (CCRC) in Regina (Anthony Davies) v The Criminal Cases Review Commission . This case was brought on behalf of a prisoner who contended that his conviction had become unsafe following the decision of the Supreme Court in R v Jogee  UKSC 8 which recast the mens rea requirements in joint enterprise cases. The court dismissed the claim in a judgment which involved analysis of how the principles in Jogee are applied, and the circumstances in which the CCRC should re-open an old conviction. Jim Duffy of 1 Crown Office Row was the Junior Counsel for the Claimant and instructed by David McCorkle of Duncan Lewis Solicitors.
In the Crown Court, Langstaff J directed the jury to the contemporaneous 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. In Jogee, however, the Supreme Court ruled that the law requires intention, not merely foresight for a conviction. It follows, therefore, that Langstaff J had misdirected the jury. The issue in this case concerned the impact of that misdirection, how it should have been viewed by the CCRC, and the approach of the Court to decisions by the CCRC.
Following the outcome of Jogee, the Claimant re-applied to the CCRC, which made its final decision against referral in September 2017. This was the decision challenged. In its provisional negative decision, the CCRC noted the effect of Jogee that the “effect of putting the law right is not [emphasis added] to render invalid all convictions which were arrived at” following faithful application of the law as it was formerly understood. Drawing a comparison with the old law on dangerous driving offences, Lord Hughes and Lord Toulson warned of ‘alarming consequences’ that would flow from the general re-opening of old cases on grounds of previous legal misconceptions.
On this point, the CCRC further considered the decision of the Court of Appeal in R v Johnson & Others  EWCA Crim 1613, where the Court addressed the proper approach to pre-Jogee cases decided under the “old” law of joint enterprise. In that case, the Court said that a mis-direction on this aspect of a case will not make a conviction unsafe, unless there is ‘substantial injustice’. The burden is on the applicant to show this and it is a ‘high threshold’. The CCRC noted that their task is to apply a ‘predictive test’, such that there would be a ‘real possibility’ the Court of Appeal would overturn a conviction.
Thus, we turn to the meaning of a ‘substantial injustice.’ The CCRC is obliged to approach each case applying the test laid down in S13 of the Criminal Appeal Act 1995, which articulates a ‘real possibility’ test. This test was affirmed by Lord Bingham CJ in R v Criminal Cases Review Commission, ex parte Pearson  3 All ER 498,  1 Cr App Rep 141. Moreover, in R (Charles) v CCRC  EWHC 1219( Admin), Lord Gross held that the exercise of the power to refer is a matter for the judgement of the CCRC and that this determination should not be usurped by the Court. This argument was cited in the Johnson case, where the Court of Appeal stated that ‘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.’ [Para 18] The Court in Jogeere-asserted the ‘high threshold’ test.
The approach to the “substantial injustice” test has been considered in a few cases since the decision in Johnson. For example, in a 2018 case, R v Crilly  EWCA Crim 168, the Court of Appeal concluded, on the specific facts of that case, that foresight of serious violence could not be equated with intent, and there would be a substantial injustice in maintaining the conviction. In Crilly, the Court of Appeal was applying the test laid down in Johnson.
In this case, the facts firmly established that the Claimant was party to the plan to rob the deceased of a substantial sum of money and of drugs. In Jogee, moreover, their Lordships emphasised that it is possible to establish an intention on a ‘conditional’ basis . The carrying of weapons to the premises, for example, clearly indicated a plan for the infliction of violence that fell into the category of ‘conditional intent’. The CCRC therefore concluded that despite Langstaff J’s misdirection,
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 injusticehas been done.
In conclusion, Lord Justice Irwin held that the CCRC had taken the correct approach. 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. The incidences of extreme violence; 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 foreground the case for the necessary intent. As such, the original conviction could not be held to be unsafe.
Mr Justice Kerr agreed with Irwin LJ in dismissing the application for judicial review.