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Judges refuse to overturn guilty verdicts in joint enterprise test case appeals

Leading judges have refused to overturn guilty verdicts in the first appeals brought in "joint enterprise" cases since a landmark Supreme Court ruling raised the possibility that hundreds of convictions could be "unsafe".

Three of the country's most senior judges announced their decision at the Court of Appeal in London on Monday in test case challenges brought by a number of men convicted of group attack murders.

Their appeals followed a decision in February by the UK's highest court that the application of the law on joint enterprise, otherwise known as common enterprise, had taken "a wrong turn" and been misinterpreted for 30 years.

Lord Chief Justice Lord Thomas, who heard the cases with Sir Brian Leveson, and Lady Justice Hallett, was greeted by cries of protest by supporters of the men sitting in the public gallery as he gave decisions in the individual appeals.

At the heart of the case is the so-called "foresight principle" in joint enterprise cases. Used over the years to tackle gang violence, defendants have been convicted if they could have foreseen that a murder or violent act was likely to take place.

But the Supreme Court ruled that the foresight rule was being misinterpreted and juries had to decide "on the whole evidence" whether a person had the "necessary intent" to join in the commission of a crime.

The judges threw out challenges brought by 13 individuals involved in six separate crimes.

Lord Thomas said the cases were not connected "save for the need to consider, individually for each case, the impact on convictions - mainly, but not entirely, for murder - of the decision of the Supreme Court on February 18.

The first of the test cases heard by the appeal judges at a hearing in June concerned the safety of the conviction of Asher Johnson, his brother Lewis, and Reece Garwood, all in their 20s, who were jailed for life for murdering Thomas Cudjoe in an attack on a garage forecourt near a pub in Ley Street, Ilford, east London, in November 2012.

A fourth convicted man, Jerome Green, was seen in CCTV footage holding a knife and apparently stabbing Mr Cudjoe as he sat in the driver's seat of a Ford Focus.

Lawyers for the Johnson brothers and Garwood told the court there was no evidence of common enterprise between them and Green, and the CCTV did not show they had been involved in a planned attack.

There was also no evidence that they had given verbal encouragement to Green to carry out the killing.

Announcing the decision in that case, Lord Thomas said that, "given the jury's findings of fact, their verdicts would have been no different" post the Supreme Court ruling.

The Court of Appeal was "satisfied that there was no injustice, let alone substantial injustice".

The second case heard by the judges challenged the safety of the convictions of Tyler Burton and Nicholas Terrelonge, who were found guilty of murdering young father Ashley Latty in a group attack after a birthday party in Dagenham, east London, in May 2014.

Lord Thomas said a direction given to the jury based on the Supreme Court judgment "would not have made a difference to the jury's verdicts".

The convictions "were and are safe".

Lord Thomas pointed out that, had the change of law been set out in statute, as opposed to a judicial decision of the Supreme Court in the joint enterprise case of Jogee, "there would be no question of revisiting any such convictions; the new law would apply only prospectively".

Before announcing the test case decisions, he said it was "important to emphasise" a particular paragraph in the ruling of the Supreme Court.

The justices said the " effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law" as previously laid down.

Lord Thomas said: "As the Supreme Court stated ... a long line of authority clearly establishes that if a person was properly convicted on the law as it then stood, the court will not grant leave (to appeal) without it being demonstrated that a substantial injustice would otherwise be done.

"The need to establish substantial injustice results from the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law.

"The requirement takes into account the requirement in a common law system for a court to be able to alter or correct the law upon which a large number of cases have been determined without the consequence that each of those cases can be reopened.

"It also takes into account the interests of the victim, or the victim's family, particularly in cases where death has resulted and closure is particularly important."

Lord Thomas said it was for an applicant for "exceptional leave to appeal out of time" to demonstrate that a substantial injustice would be done, which was a "high threshold".

He added: "In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference."

It was not material to consider the length of time that had elapsed since conviction when deciding on whether or not to grant leave: "If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice."

After the ruling, Gloria Morrison, campaign co-ordinator of JENGbA (Joint Enterprise Not Guilty by Association), a grassroots group which helped to achieve the Supreme Court ruling, commented: " JENGbA has been fighting for justice for the past six years. During that time we have experienced many setbacks as well as successes.

"T oday's Court of Appeal judgment is a huge disappointment, not just for all the families involved but all those wrongfully convicted ever since the law took a 'wrong turn' over 30 years ago.

"I t our understanding that the applicants are taking legal advice on whether this judgment can be appealed. JENGbA intends to support them in every way we can."

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