What is ‘substantial injustice’ for the purposes of a criminal case review?

27 November 2018 by

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 [2016] 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 [2016] 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 [1999] 3 All ER 498, [2001] 1 Cr App Rep 141. Moreover, in R (Charles) v CCRC [2017] 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 [2018] 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 [92]. 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.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: