Jordan Towers, who was just 16 years old when he was convicted of murder in Newcastle-Upon-Tyne Crown Court in 2007, has lost his appeal against conviction. His conviction had been referred by the miscarriage of justice watchdog on basis of the 2016 ruling of Supreme Court in R v Jogee in which the court ruled that the law on joint enterprise had taken a ‘wrong turn’ 30 years ago .
Towers and his co-defendants were convicted after Kevin Johnson was fatally stabbed in May 2007 during a fight outside his home in Sunderland. A few minutes later another man, Jamie Thompson, was also stabbed but his injuries were not life-threatening.
Towers, who did not wield the knife on either occasion, pleaded not guilty but was convicted and sentenced to a minimum custodial term of 13 years. He had tried to appeal against his conviction but his application for leave was refused in 2008. He applied to the Criminal Cases Review Commission (CCRC) in 2009 and 2013 but no referral was made. He applied again in 2015.
In February 2016, while the case was under review at the CCRC, the Supreme Court made its landmark decision in the Jogee case. That decision related to ‘foresight’ being incorrectly used instead of ‘intent’ as a way to convict a secondary party to the crime.
At the time, many campaigners and lawyers hoped that the court’s recognition of the ‘wrong turn’ would mean that people convicted under joint enterprise (i.e. for example, someone who was part of the incident but was not the stabber) would have their convictions overturned on appeal. In the case of Jogee, he had his murder conviction replaced with a manslaughter conviction and was then sentenced to 12 years compared to the 20 years he had received for murder.
In October 2016 the Court of Appeal denied leave to appeal to 13 defendants in six separate cases in the case of R v Johnson & other. According to the ruling in Jogee, permission to appeal could be granted if ‘substantial injustice’ could be demonstrated but it would not do so ‘simply because the law applied has now been declared mistaken’. So far only one post Jogee appeal has been successful and the substantial injustice requirement has proved an almost insurmountable hurdle – see here on the Justice Gap.
Following Jogee, Towers’ lawyers made new submissions to the CCRC. The watchdog decided to refer the case to the Court of Appeal on the basis that the change in the law meant there was real possibility that court would quash the conviction and conclude that to uphold Towers’ conviction for murder would amount to a ‘substantial injustice’
Representing Towers, Henry Blaxland QC argued that the substantial injustice test was not very far removed from the usual safety test for allowing appeals. However, the judges spent some time emphasising the stringent requirements as set down in Jogee and Johnson. Blaxland also sought to add to the points made by the CCRC relating to Towers’ youth and the direction by the trial judge as to the lack of adverse inference to the drawn by the jury for Towers decision not to give evidence.
Those additional points raised by Blaxland were dismissed by the court , as was the primary argument relating to the change in joint enterprise law. Pointing to his youth, Blaxland argued he was ‘susceptible to peer pressure and had an adolescent concern to avoid exclusion’. But Sir Brian Leveson, who was sitting with Mr Justice Nicol and Sir Brian Keith, said that there was ‘absolutely no evidence from Towers to that effect’.
Jordan Towers’ sister, Ashleigh, has vowed to carry on the fight to clear her brother’s name. ‘We are going to fight on 100%. We are going to look at the Supreme Court and then The European Court of Human Rights,’ she told the local press.
Sir Brian accepted that the attack on Johnson was unplanned and that Towers ‘stepped away’ before the killing. But he added: ‘His behaviour thereafter was not, in any sense, to distance himself from the joint attack’. Leveson J commented that the ‘starting point’ was that Towers was aware that he and at least one of the others in the group was armed.
The court was satisfied that Towers had not been the victim of a substantial injustice by the reason of the change in the law. The Appeal judges concluded that the three youths were ‘clearly looking for trouble’ and it was ‘undeniable that Mr Johnson was goaded and encouraged’ to leave his house and become involved in the fight.
They based this on three reasons: First, Towers ‘involved himself in a joint enterprise knowing that he and his co-adventurers were armed’; second, he ‘took part in, or associated himself with, the attack (however ineffectually) by lifting and throwing a paving slab’ at Johnson; and, third, he went on, with the intention of causing grievous bodily harm, to involve himself in the attack on Thompson.
Ashleigh Towers insisted her brother is not a murderer. ‘I know he was stupid, I’m not going to deny that, but he did not kill anyone. He did not even realise Mr Johnson had been stabbed… . We do not believe Jordan was part of a joint enterprise. This has 100% been a miscarriage of justice. I can’t believe he was convicted.’
Since Jogee, the CCRC has received around 103 applications featuring arguments about joint enterprise. They have also considered such issues in an additional 104 joint enterprise cases which had already applied before the Supreme Court decision.
The Court of Appeal recognised the hard work of the CCRC. ‘Their consideration of these cases has, as always, been thorough and detailed. The fact that, following examination with the benefit of submissions on behalf of the Crown, in relation to Towers, it has not prevailed does not diminish the importance of its work either in general or, indeed, in this case.’