FIRST SECTION
DECISION
Applications nos. 7690/18 and 9348/18
Joseph McGILL against the United Kingdom
and Corey HEWITT against the United Kingdom
The European Court of Human Rights (First Section), sitting on 14 May 2019 as a Committee composed of:
Aleš Pejchal, President,
Tim Eicke,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above applications lodged on 1 February 2018 and 9 February 2018 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicant in the first case, Mr Joseph McGill, is a British national who was born in 1999 and who is currently detained at a young offenders’ institute in Lichfield. He was represented before the Court by Ms J. Twite of Just For Kids Law, a London-based charity that works with and for children and young people.
2. The applicant in the second case, Mr Corey Hewitt, is a British national who was born in 1999 and who is currently placed in a secure care centre for children in Manchester. He was represented before the Court by Ms A. Stephenson of Just For Kids Law.
A. The circumstances of the case
3. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The background
4. On 7 May 2014 the first and second applicants were convicted of murder under the law of joint enterprise (see paragraphs 14-16 below). They were sentenced on 2 July 2014. Pursuant to section 90 of the Powers of Criminal Courts (Sentencing) Act 2000, persons under the age of eighteen who are convicted of murder “shall” be sentenced to be “detained during her Majesty’s pleasure” (in other words, indefinitely, with a minimum term to be fixed by the judge before they could be considered by the Parole Board for release on licence). The first applicant was sentenced to a minimum term of nine years and the second applicant to a minimum term of six years, less time spent on remand.
5. The first applicant had been diagnosed with attention deficit and hyperactivity disorder (“ADHD”) and, according to the evidence of psychologists, both applicants were of limited intellectual functioning. Certain measures were taken at trial to assist them. For example, the judge intervened to ensure that questions were phrased appropriately and, for the most part, twenty minute breaks were taken at hourly intervals during the trial. An intermediary (an independent person appointed to assist vulnerable defendants or witnesses during a trial) was made available to the second applicant. Neither the applicants nor their counsel expressed any doubts during the trial about their ability to understand and participate in the proceedings.
2. R v. Jogee [2016] UKSC 8
6. On 18 February 2016 the Supreme Court gave its judgment in the case of R v. Jogee (see paragraphs 14-16 below). In that judgment it unanimously held that developments in the law of joint enterprise over the course of the past three decades had been wrong as a matter of law. Nevertheless, the Supreme Court made it clear that the effect of “putting the law right” was not to render invalid all convictions arrived at over many years by faithfully applying the law as it stood at the time. On the contrary, such convictions could only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time, and the Court of Appeal had the power to grant such leave if “substantial injustice” was demonstrated. It would not grant leave simply because the law applied had since been declared mistaken.
3. The Court of Appeal
7. The first and second applicants sought leave to appeal against conviction and sentence on 20 May 2016 and 30 March 2017 respectively, and sought an extension of time to make such applications. These applications were made by freshly instructed counsel and not by those who had represented the defendants at trial.
8. The grounds of appeal were as follows. First, both applicants contended that the trial judge had misdirected the jury following the decision of the Supreme Court in R v. Jogee [2016] UKSC 8; and that he had failed to modify the direction to take account of the personal characteristics of the applicants, in particular their age, immaturity, and cognitive difficulties. Secondly, they contended that they had been unable to participate effectively in the trial due to the fact that they were seated in the dock. The second applicant further alleged that the court had failed to control cross-examination in accordance with the procedures applicable to young persons. Thirdly, both applicants contended that their mandatory sentences of detention at Her Majesty’s Pleasure were incompatible with Articles 3 and 5 of the Convention. Finally, they argued that the minimum terms imposed were manifestly excessive.
9. The applicants’ original trial counsel were invited to provide the court with their account of the proceedings. In their evidence to the court, they indicated that they had been fully aware of the applicants’ age and intellectual limitations; that the applicants had been seen by themselves and/or their care workers during each of the regular breaks to ensure that they fully understood what had taken place during the previous segment; and that neither the applicants, nor their families, nor their legal teams had any concerns about their ability to understand and participate in the proceedings. In fact, trial counsel for the second applicant considered the assertion that he was unable to participate in his trial as “simply untrue and entirely without foundation”.
10. The Court of Appeal refused the applications for leave. In relation to the first ground, it concluded that had the jury been directed in accordance with R v. Jogee the verdicts would have been no different. It was therefore satisfied that there had been no injustice, let alone substantial injustice. Moreover, the court was “quite satisfied” that even if the direction to the jury had been modified to take into account the applicants’ ages and cognitive abilities, it would have had no material effect on the jury’s approach to its decision-making.
11. With regard to the conduct of the trial, the court was satisfied that the judge had controlled the proceedings and intervened appropriately to ensure that the second applicant was able to understand the questions asked of him and communicate his answers effectively, and it did not consider that the applicants were in any way prejudiced by having been seated in the dock.
12. In relation to the third ground of appeal, the court considered that, having regard to the decision of this Court in V v. the United Kingdom (1999) 30 EHRR 121, the case-law was “clear and unequivocal” that the sentence of detention during Her Majesty’s pleasure was not incompatible with the Convention.
13. Finally, in respect of the fourth ground of appeal, the court found that the minimum terms were not “manifestly excessive”. It was clear from the sentencing remarks that the judge had carefully approached the fixing of the minimum terms in a manner that took into account the applicants’ culpability and their individual circumstances, and the terms were proportionate.
B. Relevant domestic law and practice
1. Joint enterprise and parasitic accessory liability
14. It is a basic and uncontroversial principle of United Kingdom criminal law that a person who assists or encourages another to commit a criminal offence is guilty of the same offence as the perpetrator (or principal). Prior to 1984, the law provided that where, in the course of a joint enterprise to commit crime A, the principal committed crime B, the secondary party would only be guilty of crime B if he intended to assist or encourage the principal to commit that crime. However, in 1984 the doctrine which has since been described as parasitic accessory liability was laid down by the Privy Council in Chan Wing-Siu v. The Queen [1985] AC 168. According to that doctrine, if two people set out to commit crime A, and in the course of that joint enterprise one of them commits crime B, the secondary party will be guilty as an accessory to crime B if he foresaw the possibility that the principal would act as he did. Therefore, the secondary party’s foresight of the possibility that the principal might commit crime B, together with his continuation in the enterprise to commit crime A, were sufficient in law for him to be criminally liable for crime B.
15. As already noted, in R v. Jogee [2016] UKSC 8 the Supreme Court held that this development had been wrong as a matter of law. The secondary party’s foresight of what the principal might do could only be evidence from which the jury might infer intent, but it was not in itself proof of intent. However, the Supreme Court indicated that the effect of putting the law right was not to render invalid all convictions which were arrived at over many years by faithfully applying the law as it then stood. While the error identified was important as a matter of legal principle, it did not follow that it would have been important on the facts to the outcome of the trial or to the safety of the conviction. Therefore, such convictions could only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time. Although the Court of Appeal had power to grant such leave if substantial injustice was demonstrated, it would not do so simply because the law applied had since been declared to have been mistaken. According to the Supreme Court, “alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based”.
16. In R v. Johnson & Ors [2016] EWCA Crim 1613 the Court of Appeal identified the considerations which the court would take into account in determining whether there had been a substantial injustice in applications for leave based on R. v. Jogee. It stated:
“In relation to appeals brought out of time, leave is required and an extra hurdle is introduced into the process. In some cases, the court could have an inherent power to limit the retrospective nature of its decisions (see Cadder v. HM Advocate [2010] UKSC 43, [2010] 1 WLR 2601 and the cases cited at [58], [61] and [100] to [103]). Indeed, in that case, the decision generally to allow those being questioned access to legal advice was specifically limited when applying the law of Scotland by the principle of legal certainty such that it was made clear that cases which had been finally determined (without such access having been granted) should not be reopened.
The Supreme Court in Jogee did not consider it appropriate to go that far. It approved the practice of the Court of Appeal of England and Wales which Lord Bingham described in Hawkins [1997] I Cr App R 234 at 240 of eschewing undue technicality and asking whether any substantial injustice had been 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 re-opened. 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.
... ... ...
Thus, it will be for the applicant for exceptional leave to appeal out of time to demonstrate that a substantial injustice would be done. That is a high threshold.
... ... ...
In determining whether that high threshold has been met, the court would 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. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct. It is not, however, in our view, material to consider the length of time that has elapsed. 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.”
2. Appeals against conviction and sentence
17. Pursuant to section 18(2) of the Criminal Appeal Act 1968, notice of appeal, or of application for leave to appeal, to the Court of Appeal must be given within twenty-eight days from the date of the conviction or, in the case of appeal against sentence, from the date on which sentence was passed.
18. Section 18(3) permits the Court of Appeal to extend the time for giving notice. However, according to settled case-law, the power to extend time should be very rarely used, save where the extension sought is relatively short and good reason is shown for the failure to apply in time; and the fact that there has been an apparent change in the law, or that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction (see, for example, Hawkins [1997] 1 Cr. App. R. 234).
COMPLAINTS
19. The first applicant complained under Article 6 of the Convention that his right to a fair trial was violated by the failure to put in place procedures to ensure that he could participate effectively in the criminal trial; and because the Court of Appeal failed to give adequate consideration to his submissions on whether he had been convicted wrongly of murder, which was the essential issue before it. He further complained under Article 3 of the Convention about the mandatory nature of the sentence of detention during Her Majesty’s Pleasure.
20. The second applicant complained under Article 6 of the Convention that his right to a fair trial was violated by the failure to put in place procedures to ensure that he could participate effectively in the criminal trial; and that he had been denied access to court by the application of the “substantial injustice” test in the determination of his application for permission to appeal. In addition, he complained under Articles 3 and 5 of the Convention that his mandatory sentence to detention during Her Majesty’s Pleasure was arbitrary, disproportionate and failed to pursue a legitimate aim. The second applicant further complained under Article 7 of the Convention that, in light of the Supreme Court’s judgment in R v. Jogee, his conviction had not been in accordance with the law. Finally, he complained under Article 14 of the Convention that the application of the law “pre-Jogee” resulted in a disproportionate and discriminatory impact on boys and those of a black or ethnic minority background.
THE LAW
A. Joinder of the applications
21. The two applications in the present case raise the same issues. The Court therefore considers that they should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. Alleged violation of Articles 3, 5, 6 and 7 of the Convention
22. Articles 3, 5 and 6 of the Convention provide, insofar as relevant:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
... ... ...
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
Article 6
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 7
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
1. General principles
23. The six-month rule stipulated in Article 35 § 1 is intended to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time and it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible. The existence of such a time-limit is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question and constitutes a legitimate concern for order, stability and peace. Legal certainty constitutes a binding requirement which ensures the equality of litigants before the law. That principle is implicit in all the Convention’s Articles and constitutes one of the fundamental elements of the rule of law (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-42, 29 June 2012).
24. In assessing whether an applicant has complied with Article 35 § 1, it is important to recall that the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period are closely interrelated. Thus where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he complains, or after the date of knowledge of that act or its effect or prejudice on the applicant. The pursuit of remedies which are either inadequate or ineffective will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting point for the running of the six-month rule (see Vaini v. Finland (dec.), no. 62123/09, 3 May 2011; Kolu v. Finland (dec.), no. 56463/10, 3 May 2011; Tucka v. the United Kingdom (no. 1) (dec.), no. 34586/10, §§ 12-15, 18 January 2011, with further references therein). Therefore, Article 35 § 1 does not require applicants to have applied for the reopening of proceedings or to have used similar extraordinary remedies, and it does not allow the six-month time-limit to be extended on the grounds that such remedies have been used (Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January 2004, Tucka v. the United Kingdom (no. 1), cited above, § 16, and Haász and Szabó v. Hungary, nos. 11327/14 11613/14 §§ 36-37, 13 October 2015).
2. Application of the general principles to the case at hand
25. The applicants were convicted on 7 May 2014 and, despite having been represented by experienced counsel, neither appealed against conviction or sentence within the twenty-eight day time-limit for doing so. Rather, they sought exceptional leave to appeal against conviction and sentence on 20 May 2016 and 30 March 2017 respectively. The reason for the delay was ostensibly due to the development of the law by the Supreme Court in R v. Jogee, a judgment which was handed down on 18 February 2016. However, the majority of their grounds of appeal, including those concerning the special measures adopted at the trial and the Convention compliance of their mandatory sentences, were wholly unconnected with that development. In any event, the Court of Appeal refused permission to appeal on all grounds.
26. According to the domestic jurisprudence, permission to appeal out of time is rarely granted and as a general rule a subsequent change in the law will not afford a proper ground for allowing an extension of time in which to appeal against conviction (see paragraphs 17-18 above). In Lang and Hastie v. the United Kingdom (dec), nos. 19/11 and 36395/11, 22 May 2012 the Court considered that an application for such exceptional permission did not allow the six-month time-limit to be extended. The applicants in that case had been convicted of criminal offences in Scotland. At the time the Scottish courts had not considered it necessary to give effect to Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and during the applicants’ trials the prosecution had been able to rely on statements given in police interview without the presence of a lawyer. However, in Cadder v. HM Advocate [2010] UKSC 43 the Supreme Court unanimously found that police in Scotland could no longer question suspects without offering them a private consultation with a lawyer. It also held that its ruling should not apply retrospectively. As a result of the Cadder proceedings, the applicants in Lang and Hastie had applied for an extension of time in which to appeal to the Court of Appeal. When those applications were refused, they complained to this Court that there had been a breach of their right to a fair trial and/or their right to an effective remedy. The Court considered that their applications for an extension of time, made long after the original proceedings, could only be regarded as an extraordinary remedy, and not one that was effective for the purposes of Article 35 of the Convention. Therefore, the date of the final decision from which the six-month period began to run was the date of the applicants’ convictions and, accordingly, their complaints were rejected for having been lodged out of time.
27. In reaching this conclusion, the Court expressly acknowledged that if it were to regard an application for an extension of time as an effective remedy, any defendant in Scottish criminal proceedings who was deprived of legal assistance while in detention would, after the Cadder judgment, be able to lodge such an application with the Appeal Court, wait for it to be refused, and then lodge an application with this Court within six months of that refusal. They would be able to do so regardless of the date of their conviction and regardless of any steps they had taken – or had failed to take – to appeal against their conviction at the time. Such an approach would confer a right of petition on a virtually unlimited number of defendants and would vitiate the legal certainty the Supreme Court properly sought to introduce when it limited the effect of its ruling in Cadder.
28. The strict approach taken by the Court in Lang and Hastie is entirely consistent with its subsequent case-law. In Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, § 56, 15 June 2017 the Court reaffirmed that “legal certainty constitutes one of the fundamental elements of the rule of law which requires, inter alia, that, where a court has finally determined an issue, its ruling should not be called into question”. Consequently, it has adopted a “rigorous approach” in applying those admissibility criteria, such as the six-month rule, whose object and purpose is to serve the interests of legal certainty and mark out the limits of its competence (Harkins, cited above, § 54; see also Sabri Güneş, cited above, §§ 39-42 and Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I ), and, in respect of Article 35 § 2 (b) of the Convention, it has held that a development in its own jurisprudence did not constitute “relevant new information”, since, if jurisprudential developments were to permit unsuccessful applicants to reintroduce their complaints, final judgments would continually be called into question by the lodging of fresh applications (Harkins, cited above, § 56).
29. It is true that in Cadder the Supreme Court expressly stated that cases which had been finally determined should not be reopened. However, it is clear that the express limitation of the retrospective application of the Cadder judgment was not central to the Court’s conclusion in Lang and Hastie. Rather, its conclusion was based on both the “extraordinary” nature of an application for exceptional leave to appeal to the Court of Appeal out of time, and the fundamental importance of the principle of legal certainty.
30. Both of those factors are equally applicable to the case at hand. Although in R v. Jogee the Supreme Court did not expressly limit the retrospective application of the judgment, it nevertheless made it clear that convictions which were arrived at by faithfully applying the law as it then stood could only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time, and that such leave would only be granted if “substantial injustice” was demonstrated (see paragraph 15 above). In R v. Johnson (see paragraph 16 above) the Court of Appeal subsequently confirmed that the “substantial injustice” requirement was a “high threshold”. Moreover, in setting the threshold so high, the Supreme Court in R v. Jogee and the Court of Appeal in R v. Johnson expressly took into account both the wider public interest in legal certainty and the finality of decisions made in accordance with the then clearly established law; and the interests of the victim (or the victim’s family), given that, in cases where death has resulted, closure would be particularly important (see paragraphs 14-16 below).
31. In light of the foregoing, the Court concludes that in the present case the date of the final decision from which the six-month period began to run was 7 May 2014, in respect of the complaints relating to the applicants’ convictions; and 2 July 2014, in respect of the complaints about sentence. The present applications, which were lodged on 1 February 2018 and 9 February 2018, are out of time and must be rejected pursuant to Article 35 § 1 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications; and
Declares the applications inadmissible.
Done in English and notified in writing on 6 June 2019.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy