Miscarriage watchdog refers first joint enterprise murder conviction post-Jogee

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Miscarriage watchdog refers first joint enterprise murder conviction post-Jogee

Sketch by Isobel Williams www.isobelwilliams.blogspot.co.uk (from Proof magazine)

Miscarriage watchdog refers first joint enterprise murder conviction post-Jogee

The miscarriage of justice watchdog has referred the joint enterprise murder conviction of Laura Mitchell to the Court of Appeal. This is the first referral the Criminal Cases Review Commission has made on joint enterprise grounds since the landmark case of Jogee in 2016.

Laura Mitchell, who was 22 years old at the time of the offence and a single mother to her five-year-old son, was tried for murder and violent disorder on the basis of a joint enterprise at Bradford Crown Court in September 2007. Mitchell, her boyfriend Michael Hall, Henry Ballantyne, and Jason Fawthrop were tried together as secondary parties to the murder of Andrew Ayres who died after a fight outside a pub over a taxi on 28 January 2007.

During the trial, the court heard that in the early hours of the January morning, the fight began when the group, who had spent the preceding hours drinking, tried to enter a taxi. Mitchell had no previous history of violence, but she was involved in the initial scuffle that ensued.

When things quietened down, Mitchell began to look for her shoes which had come off during the fight. Unbeknownst to her, she claims, two of her co-defendants then went to a nearby house and returned to the car park with a mace, CS gas and knuckledusters.

Another fight began, during which Ayres was murdered. ‘When I was in the car park looking for my shoe[s]. I was not there encouraging anyone. I did not want a fight,’ Laura Mitchell told the court.

Carl Holmes, admitted to causing the fatal stamping injuries to Ayres, and pleaded guilty to murder. Laura Mitchell, Michael Hall, Henry Ballantyne were convicted on the basis that they foresaw or intended, as secondary parties, the murder of Andrew Ayres. Jason Fawthrop, who lived nearby and provided the weapons, was acquitted.

She was sentenced to life imprisonment with a minimum term 13½ years, and to a concurrent sentence of three-and-a-half years for violent disorder.

Mitchell sought leave to appeal against her conviction. Leave was refused by the full court in February 2009. She applied to the CCRC for a review of her case in January 2014, originally represented by Mr Derek Buxton, on the grounds of new witness evidence. Mitchell was latterly represented during her application to the CCRC by Simon Natas of ITN Solicitors who advises the campaign group Joint Enterprise Not Guilty by Association (JENGbA).

The story the jury was left to consider, Natas told The Bureau of Investigative Journalism, was that ‘the spontaneous violence that occurred during the argument over the taxi and the second fatal assault were part of a single joint enterprise’. This meant Ms Mitchell was determined by the jury to be as guilty as the man who stamped on Mr Ayres’ face and killed him.

The Court of Appeal upheld her conviction on the basis that, even if she didn’t actually take part in the assault, her continued presence in the car park amounted to assistance or encouragement. ‘That,’ said Natas, ‘is a very problematic basis on which to convict someone of murder and sentence them to life imprisonment.’

During the time the Commission was undertaking it’s review two significant developments took place in the law on joint enterprise convictions. This meant Mitchell’s conviction could exceptionally be referred back to the Court of Appeal for a second time.

The first, in February 2016, was the Supreme Court judgment in R v Jogee, Ruddock v The Queen [2016] UKSC 8, [2016] 2 WLR 681. The judgment significantly altered how the law in relation to secondary parties in cases of joint enterprise works. It stated that instead of the legal test being one of foresight of the crime, the element which now had to be proven was intention.

The second, later in 2016, was the Court of Appeal’s consideration of applications for leave to appeal on “Jogee” type points (i.e. points related to the change in joint enterprise arising from the above case). The Court of Appeal’s judgment in that case, R v Johnson and others [2016] EWCA Crim 1613, was handed down on 31 October 2016.

Mitchell’s co-defendant, Michael Hall, was one of the five applicants in the Johnson appeal, attempting to apply for leave to appeal out of time further to the ruling in Jogee. However, all applications for leave to appeal were refused.

In light of these recent developments in the law, the Commission decided that there was a real possibility that the Court of Appeal would find that it would be a substantial injustice to maintain Mitchell’s conviction and would quash it as unsafe. Significantly, this is the first case the Commission has sent back to the Court of Appeal on these grounds, since the two cases in 2016.