Appeals on the rise (Shutterstock: criminal courts)
Over a fifth of the court of appeal rulings published in 2013 involved an element of joint enterprise, according to new research by the Bureau of Investigative Journalism.
Analysis of over 800 published Court of Appeal rulings, also reveals that the rate at which cases tried using the 300 year old doctrine of joint enterprise, were brought to appeal doubled between 2008 and 2013.
In 2008 11% of published Court of Appeal rulings dealt with convictions where there had been some element of joint enterprise. In 2013 the rate had increased to 22%, or 43 out of 194 published rulings.
Homicide charges were the most common form of joint enterprise conviction appealed in all three years analysed.
David Ormerod, chair of the Law Commission, said: ‘Murder cases are tried by the most experienced judges and the most experienced counsel, but despite this they still come up for appeal. The list of appeals goes on and on.’
‘The outcomes of the trials and indeed of the appeals are often perceived as illogical or unfair,’ he added.
Joint enterprise is a legal doctrine by which more than one person can be convicted for the same crime. While widely used, elements of its usage have been called into question recently, with some legal experts warning it opens the gates for those on the periphery of crimes to be convicted of serious wrongdoing, and receive disproportionately harsh sentences.
Sir Alan Beith, chair of the justice select committee, said the current state of the law on joint enterprise is ‘so complex that juries might find it impossible to understand how to reach the right verdict.’
Now those verdicts are being challenged more often: the rate at which prisoners are appealing their convictions is on the increase.
Getting a conviction overturned
The Bureau looked at all published rulings from 2008, 2012 and 2013 and found that despite the increase in joint enterprise cases being brought to the Court of Appeal, the appeals on convictions were very rarely judged to have been unsafe.
In 2008 and 2012 it was more likely that a joint enterprise ruling would be upheld, as compared to a non-joint enterprise ruling, suggesting it is harder for those convicted under joint enterprise to get their convictions quashed or their sentences reduced. 2013 bucked this trend with a significant jump in the number of non-joint enterprise homicide appeals being upheld.
In 2012 there were 11 appeals for homicide charges that involved joint enterprise. Of these seven were upheld (64%), one had a sentence altered and three were quashed.
Comparatively there were 15 appeals for non-joint enterprise homicide. Of those nine cases were upheld (60%) and six were altered.
Murder convictions are were most of the concerns about joint enterprise lie, in part because of they hold mandatory life sentences.
The Bureau’s research of appeal cases reveals homicide cases made up the largest proportion of the joint enterprise cases brought to appeal.
In 2012 37% of all the cases involving joint enterprise were for homicide charges, while last year 26% of the joint enterprise cases brought to the Court of Appeal were for homicide convictions.
Despite the frequency with which joint enterprise homicide cases come before the Court of Appeal, they are very rarely quashed.
In the 38 joint enterprise homicide appeal cases analysed by the Bureau, only four cases were ever quashed.
Lynette and Shirley Banfield, who had been convicted of the murder of Donald Banfield had their convictions overturned after it was found that the original prosecution had erred in using joint enterprise to argue that the women had to be working in consort, and therefore the prosecution did not need to prove who did the deed.
Arfan Rafiq’s conviction for a joint enterprise murder was quashed in 2012 after the appeal court found the jury’s decision on the joint enterprise element was illogical. The jury had found him guilty of joint enterprise murder for supplying a gun to the killer, but not guilty of possession of the weapon.
Sam Hallam’s conviction was quashed after new evidence showed he had not been at the scene of the crime, while Adam Joof was released after it was found that evidence from a key witness could have been contaminated by police interaction.
Complications in appeal
Appealing a conviction can be problematic. The appellant has to provide new evidence or argue there was a legal issue with the way the original trial was held.
In other words, it is not enough to simply argue that being convicted as a peripheral character to a crime was wrong.
What is more, convictions are rarely overturned. The Bureau’s analysis of joint enterprise homicide appeals show that only 10% succeed in quashing the conviction.
That was the case for Wayne Collins.
Related story: Case study – Wayne Collins – ‘played no active role’
Collins was caught up in the 2011 riots and was sentenced to 18 years imprisonment for rioting and possession of a firearm with intent to endanger life, despite the fact, accepted at his trial, that he never held the weapon. In fact Collins maintains he did not know the gun existed before it was used, and CCTV footage proves he took no active part in the rioting and burning of a pub.
In December 2013, after much work on the part of his lawyers, his case came before the Court of Appeal. The appeal was fought on two grounds, firstly that the original trial judge’s oral instructions to the jury on how to reach a verdict may have confused them over the level to which Collins’ presence made him liable.
In the original trial the judge had given 30 pages of written directions to the jury. These directions had already been wrangled over by lawyers on both sides before being handed to the jury.
However, Collins’ appeal lawyers argued that ‘the very way the learned trial judge dealt with [the steps to verdict] exacerbated the problem,’ suggesting that by ‘ad libbing’ on the issue of the limits of presence, participation and second party liability the judge may have confused the jury in his oral evidence.
Secondly they argued that, given it was accepted that Collins took no active role in the events, had never touched the weapon in question, and was very much on the periphery of the action, that an 18 year jail sentence was ‘wholly disproportionate to what this defendant actually did’.
Acting QC James Wood told the appeal judge, Justice Leveson: ‘We are deeply concerned about the extraordinary length of this sentence.’
Wood also drew attention to the confusing nature of convictions sought through joint enterprise, telling the court: ‘It is not just me but many lawyers, and the public find it hard to understand joint enterprise, the system may need a lesser and more compassionate approach.’
In January 2014 Collins’ appeal was rejected on all grounds. Appeal judge Leveson said: ‘Not only did Collins encourage by his presence but, on the jury’s verdicts, he intended to do so in relation to the riot, the arson and the use of firearms directed at the police: this was participation in extremely serious offending.’
His legal team now plans to take the case to the European Court of Human Rights.
Getting a case to appeal Despite an increase in the number of joint enterprise cases coming before the Court of Appeal, it remains difficult to get a case heard. Lawyers need to provide either fresh evidence that is strong enough to warrant exploration, or argue a convincing flaw in the procedural process of the original trial. The appellant must first apply to the court and be granted the opportunity to have the case appealed. In many instances a case never gets past this stage. Analysis of Ministry of Justice figures, produced after an FOI request, shows that in 2008 appellants were more likely to get their conviction quashed or their sentence reduced, compared to in 2012. In 2008 75% of appeal on sentences were allowed, while the most recent data, that of 2012 shows this has gone down to 70%. The statistics also show that appeal judges were ordering fewer retrials in 2012 than they were in 2008. 72 retrials were ordered then, but just 39 ordered in 2012.
Getting a case to appeal
Despite an increase in the number of joint enterprise cases coming before the Court of Appeal, it remains difficult to get a case heard.
Lawyers need to provide either fresh evidence that is strong enough to warrant exploration, or argue a convincing flaw in the procedural process of the original trial.
The appellant must first apply to the court and be granted the opportunity to have the case appealed. In many instances a case never gets past this stage.
Analysis of Ministry of Justice figures, produced after an FOI request, shows that in 2008 appellants were more likely to get their conviction quashed or their sentence reduced, compared to in 2012. In 2008 75% of appeal on sentences were allowed, while the most recent data, that of 2012 shows this has gone down to 70%. The statistics also show that appeal judges were ordering fewer retrials in 2012 than they were in 2008. 72 retrials were ordered then, but just 39 ordered in 2012.