JOINTENTERPRISE BILL (JEB)


JEB launch at the House of Commons
Charlotte May Henry is the driving force behind JEB

Criminal Appeal (Amendment) Bill

A BILL TO

To amend the Criminal Appeal Act 1968 to allow, notwithstanding the date of conviction, leave to appeal where the conviction was based upon an interpretation of law now declared erroneous; and where the applicant is said to be suffering the ill effects of the law.

Insert, following Section 1(2)(c): where the Court of Appeal determines the following two conditions are met -
(i) the conviction was based upon an interpretation of law now declared erroneous; and
(ii) the applicant is said to be suffering the ill effects of the law.

Overview of the Bill

  1. Currently, to apply for permission to appeal against a criminal conviction, the applicant must serve their application within 28 days following the date of conviction. All other applications are out of time and at the discretion of the judiciary.
  2. The impact of this is greatest felt where someone seeks to appeal against conviction following legal reform as these cases are more likely to be out of time.
  3. Those who appeal within time will have their appeal upheld where the conviction is . Comparatively those appealing out of time and on the basis that there has been legal reform, must pass an additional appeal hurdle known as the test.
  4. The substantial injustice test is far more onerous than the safety test and it arguably s right to a fair trial. The aim of this proposed amendment is to remove the 28-day time limit and abolish the substantial injustice test for appeals which follow an erroneous interpretation of law and where the applicant is still said to be suffering the ill effects of the law.
  5. This proposed amendment does not afford an appeal where the law was not applied erroneously and where the applicant cannot be said to be suffering the ill effects of the law. These caveats recognise that law must be allowed to alter with the changing needs of society and appeals based on all judicial reform would not only be burdensome on the Court of Appeal, but would also erode the principle of finality.
  6. Specifically, we would amend s.1 of the Criminal Appeal Act 1968 to include a third avenue of appeal - s. 1(2)(c) underlined below; s. 1(1) A person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction. s .1(2) An appeal under this section lies only (a) with the leave of the Court of Appeal; (b) if, within 28 days from the date of the conviction, the judge of the court of trial grants a certificate that the case is fit for appeal; or (c) where the Court of Appeal determines the following two conditions are met - (i) the conviction was based upon an interpretation of law now declared erroneous; and (ii) the applicant is said to be suffering the ill effects of the law.
  7. The addition of s. 1(2)(c) brings the test for out of time applicants, who appeal based on an interpretation of law now declared erroneous, in line with those who appeal within 28 days. Furthermore, the addition of s. 1(2)(c)(ii) allows the Court to reject those cases where the applicant cannot be said to be suffering the ill effects of the law, thus allowing law to alter with the changing needs of society and uphold the principle of finality, without the detriment to justice.

WHO WE ARE

Joint Enterprise Not Guilty by Association (JENGbA) is a grass roots campaign, founded in 2010 by Janet Cunliffe and Gloria Morrison to combat the widely condemned doctrine of Joint Enterprise and particularly, Parasitic Accessorial Liability (PAL). JENGbA is coordinated and run by family members of those convicted under the doctrine. Joint Enterprise is an everyday phrase to describe the situation where two or more people are convicted for participating in the same crime. One type of Joint Enterprise is PAL which is where two or more people commit a criminal offence (crime A) and during the course of this crime, one of the group goes on to commit a further crime (crime B). All those that participated in crime A will also be liable for crime B if they foresaw the possibility that crime B might occur. The application of PAL was criticised at the highest level of the legal establishment as it allowed for the accessory to be convicted of very serious crimes on the basis of what they foresaw and not what they intended and the anomaly that it was therefore easier to convict the accessory compared with the principal. On 18th February 2016 and following years of tireless campaigning by JENGbA, we were ultimately successful in R v Jogee [2016] UKSC 8, when the Supreme Court abolished PAL and reinstated principles of traditional accessorial liability. However that victory was bittersweet as the decision in Jogee is not automatically retrospective and instead, to obtain an appeal, all those convicted under PAL must prove a substantial injustice would otherwise be done.

The substantial injustice test was later interpreted in R v Johnson [2016] EWCA Crim 1613 into an incredibly onerous legal burden. In particular, that permission to appeal will only be granted to those who can prove that they would not have been convicted if the law had been properly applied. JENGbA currently supports over 1000 men, women and children convicted under Joint Enterprise and only one has successfully appealed following Jogee.