On March 12 2014, the verdict was handed down. Guilty they said, as my mum’s wailing echoed around the chamber. My brother, Alex Henry, was convicted of murder under the common law doctrine of joint enterprise and sentenced to life, with a mandatory minimum term of 19 years’ imprisonment.
The incident itself had occurred the preceding year in August 2013. Sparked by no more than a look, a spontaneous fight ensued between two groups of strangers leading to the death of one young man, Taqui Khezhi, and the wounding of his brother, Bourhane Khezihi. Alex’s friend, Cameron Ferguson plead guilty to wielding the knife, but the prosecution went after all that were present, successfully prosecuting Alex Henry and Janhelle Grant-Murray. Younis Tayyib was acquitted. Alex’s participation was limited to throwing a mobile phone at Taqui and a punch at Bourhane which upon Bourhane’s own evidence, followed his own attack of Janhalle. In short, Alex was convicted for participating in a spontaneous fight, which was instigated by the victims and which lasted a mere 47 seconds.
A BILL FOR HER BROTHER I thought it was game over when my son Alex Henry’s appeal failed.Lady Hallet & Lord Thomas allowed the CPS to argue that I used my PhD to ‘coach’ my son to be autistic.But @CharlMHenry said ‘don’t worry mum, I have a plan’ & yesterday she launched her Bill pic.twitter.com/31cPBBKBvD
— Dr Sally Halsall (@Mum4justice1966) February 12, 2020
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I had studied law at Brunel University, but having obtained only a 2:2, I doubted my chances as a lawyer and had begun a career within the London Probation Trust. I recalled what I had read in my law books and tried to reconcile what I had been taught with what was playing out in front of me at court.
I knew to be convicted under joint enterprise, the law traditionally required the prosecution to prove that Alex had intentionally encouraged or assisted the stabbing while knowing that Cameron Ferguson intended to stab Taqui, intending at least really serious harm. However, I could see no evidence of encouragement or assistance in Alex’s case and no evidence that he knew Cameron would stab Taqui since the offence was spontaneous and there was no prior motive.
The issue was that three decades earlier, in a case called R v Chan Wing-Siu [1985] AC 168, the law was reformed, lowering the proof required for secondary participants (those who do not strike the fatal blow). Instead of requiring the secondary offenders intentionally assist or encourage the offence, it was enough that they foresaw it. Also, despite lowering the standard to mere foresight, the sentence attributable remained unchanged, as according to the Accessory and Abettors Act 1861, those who were guilty were liable to be tried, indicted and sentenced as if they struck the fatal blow themselves. Sentences for murder in the United Kingdom start at 15 years for a non-weapon killing, rise to 25 years with a weapon and 30 years with a firearm.
It was this guilt on the basis of mere foresight which the campaign group Joint Enterprise Not Guilty by Association (JENGbA) was founded to combat. JENGbA was founded by Gloria Morrison and Janet Cunliffe when their sons were convicted under the law and sentenced to life with long mandatory minimum terms. Following my brother’s conviction, I joined the growing army of JENGbA campaigners, raising public awareness and lobbying Parliament for change. The BBC drama Common, written by Jimmy McGovern and the BBC documentary Guilty by Association^ which featured Alex’s case, greatly assisted in generating not only public pressure, but pressure within the legal establishment, to reform the law. It was only a mere six months following the release of that documentary, that Felicity Gerry QC was granted permission to challenge joint enterprise in the Supreme Court. JENGbA intervened into that case, submitting that joint enterprise over criminalises secondary parties, who should instead be convicted of lesser crimes such as manslaughter, which does not carry a life sentence.
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On 18th February 2016, Felicity Gerry QC was successful, when the Supreme Court abolished this type of jointenterprise and reinstated the traditional principles of intentional assistance or encouragement. However, despite acknowledging that the law had been erroneously applied for 32 years, this legal reform would not be applied retrospectively, to the hundreds, if not thousands of men women and children convicted under it.
The issue is that the statutory mechanism for appeal under the Criminal Appeal Act 1968 demands that an applicant serve notice to appeal with 28 days of conviction. Those who attempt to appeal outside of this time constraint are known as out of time applicants and whether permission to appeal is granted remains at the discretion of the judiciary. Where the applicant is out of time and is hoping to appeal based on a change in the law, the judiciary have traditionally demanded the applicant pass the substantial injustice test i.e. demonstrate that they would not have been convicted had the law been correctly applied. Comparatively those who appeal within time, must only pass the safety test i.e. that they might not have been convicted had the law been correctly applied.
The substantial injustice test came from the decision in R v Johnson [2016] EWCA Crim 1613 which followed Jogee and is plainly a very onerous legal bar. Moreover, this test is arguably impossible to pass, because of the decision in R v Anwar [2016] EWCA Crim 551. Following an appeal from the Crown against the trial judge’s ruling of a no case to answer, the court held that nothing more evidentially is required post-Jogee as ‘the same facts which would previously have been used to support the inference of mens rea before the decision in Jogee will equally be used now’. Therefore, if nothing more is required post-Jogee, how can the applicant prove that he would not have been convicted? Since Jogee, an applicant named John Crilly is the only person to have successfully passed the substantial injustice test.
However, the substantial injustice test has existed for far longer and in different forms. In R v Mitchell [1977] 1 WLR 753, 757, the Court appeared to consider three factors when deciding whether a substantial injustice would be done. Firstly, what is the strength of the case against the applicant for the offence appealed against? Secondly, what is the strength of the case against the applicant for all other offences? Thirdly, is the applicant still suffering the consequences of the conviction? And considering these questions the court held:
‘So the situation is this, the defendant has been sentenced to a term of imprisonment of three years for an offence which on the facts was not a crime… The next matter which makes this something of an extraordinary case is this: this man is in prison. It is true he is serving a concurrent sentence, as I have endeavoured to point out, of nine months for other offences, but that sentence, assuming that he has earned his full remission, should by now be over or almost over. If we were to refuse him the extension of time in which to appeal against conviction, we should be keeping him in prison, so to speak, when we as a court were convinced that he had not committed an offence.’ [at p 756-757]
Therefore, the court identified three factors, which it considered would exacerbate injustice. However, it was unclear whether each factor was a necessary ingredient of substantial injustice. It was also unclear the standard to be achieved when considering the strength of the case against the applicant. The Court concluded that the applicant would not have been convicted of the offence or any other offence, but it was silent on whether this was a standard to be achieved to satisfy the substantial injustice test, or merely the conclusion when considering the strength of the case against the applicant.
The later case of Hawkins [1997] 1 Cr App R 234 appeared to take a narrow view and was almost indistinguishable from Johnson. Conversely, the recent cases of R v McGuffog [2015] EWCA Crim 1116 and R v Uthayakumar; R v Clayton [2014] EWCA Crim 123, appeared to demand no higher standard than safety coupled with an examination of whether the applicant continued to suffer the consequences of the conviction. If the latter interpretation was applied to those supported by JENGbA, then every unsafe conviction would be entitled to appeal as those convicted of murder would either be imprisoned or on life licence which would plainly be a continued consequence. However, it is for this very reason that the Johnson interpretation was applied.
In R v Ordu [2017] EWCA Crim 4, the Court determined that the strength of the case against the applicant – that he would not have been convicted, was merely ‘one example of the kind of consideration which may lead to the grant of an extension of time in a change of law case’ and refusing to apply any higher standard than safety, considered only the continuing impact of the conviction. The Court refused to follow Johnson as it restricted that interpretation to those appealing in light of Jogee and not all change of law cases. The reason was that those convicted of murder in light of Jogee would automatically satisfy the continuing consequences interpretation. Subsequently, it is only those who have been convicted of murder under pre-Jogee law who must satisfy the unduly onerous substantial injustice test as interpreted in Johnson and it is now this that JENGbA campaigns against.
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In 2017, my brother’s application to appeal was refused, as we could not demonstrate that he would not have been convicted. The Court also refused to accept Alex’s post-conviction autism diagnosis as fresh evidence despite its undoubted relevance to the conviction. Alex’s case, like hordes of others, now awaits review by the Criminal Case Review Commission, but with its notoriously low referral rates, little hope is held.
Instead JENGbA have a plan. Since Alex’s conviction I have gone on to train as a chartered legal executive lawyer with Tuckers Solicitors and have drafted a JENGbA Private Members Bill. The issue is that there is no statutory mechanism for appeal in change of law cases. The Bill will amend the Criminal Appeal Act 1968 and provide a statutory mechanism, abolishing the Johnson interpretation of substantial injustice and allowing an applicant to appeal where the conviction is unsafe and where the applicant can demonstrate he is suffering the ill-effects of the conviction.
The Joint Enterprise Bill project will be launched on the 25th March 2020 with a march to Parliament where the MPs in support of the Bill will meet us outside and pledge that support publicly. We call for everyone to join us on the day and march with us for justice.
