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All six applicants were convicted under joint enterprise laws, and had previously been unsuccessful in appealing their convictions to the NICA. Subsequent to these failed appeals, the UK Supreme Court overturned previous case law on joint enterprise (R v Jogee UKSC 8); thus the applicants sought to have their appeals reconsidered in light of R v Jogee.

Northern Ireland Court of Appeal

Counsel for all six applicants agreed that the application of Nigel James Brown was to operate as the lead case in these proceedings and to deal with all relevant issues arising out of the judgment in R v Jogee and the circumstances in law in which an appeal may be reopened.

The other five applicants were: Barry David Skinner; Mark Kincaid; Brenda Dolores Meehan; Peter Greer; and Stephen Charles McCaughey.

The main issue was whether the Court of Appeal had the power to reopen the appeals.

R v Jogee

The UKSC judgment in R v Jogee (and the Privy Council judgment in Ruddock v The Queen UKPC 7) overturned previous case law on joint enterprise, determining that:

The UKSC said that the effect of putting the law to right was “not to render invalid all convictions which were arrived at over many years” as the error of equating foresight with intent to assist, would have been important on the facts to the outcome of the trial or the safety of the conviction. Where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can only be set aside by seeking exceptional leave to appeal to the Court of Appeal out of time. That court may do so if substantial injustice can be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken.

R v Pinfold

If an appeal is unsuccessful (either because leave is refused or leave is granted and the appeal is dismissed), there is usually no opportunity for a further appeal even if the point to be argued is that new or fresh evidence has arisen – however two caveats to that rule were acknowledged in R v Pinfold QB 462:

In Pinfold, the Court also said that in the interests of the public there should be a limit or a finality to legal proceedings; without this legal certainty, it would in principle suggest that every final verdict of a trial or decision of a Court of Appeal in a criminal case should be set aside or, where possible, re-tried in the light of subsequent decisions where such subsequent decisions could be claimed to provide a potential advantage to a party in such a re-trial.

Criminal Cases Review Commission

The CCRC provides an alternative remedy to Pinfold; under section 9 of the Criminal Appeal Act 1995, the CCRC may at any time after a conviction on indictment refer a case to the Court of Appeal where there is a real possibility that the court will quash the original conviction or sentence.

If the CCRC decides to make a reference to the Court of Appeal, it stands as if leave has been granted and no question of time extension arises.

On behalf of Mr Brown, it was submitted that the NICA did have power to hear the applications and could re-open the earlier appeal if the court was satisfied that a substantial injustice had occurred. On the other hand, the prosecution contended that the courts should be careful not to trespass on the function of the CCRC, as “no injustice is caused by refusing to re-open these cases given the presence of the CCRC. If a case is merely out of time, then an application can be made to the Court of Appeal to extend time. If the appeal has already been completed, then the avenue of remedy is the CCRC”.

The NICA concluded that it should not re-open cases already determined by the Court of Appeal, absent features which brought them within the general confines of the finality principles as outlined in Pinfold. There was no authority for the proposition that every time there was a judicial adjudication clarifying or interpreting the law in a particular manner which could have some bearing on previous and finally decided cases, such cases should be re-opened or the decision set aside; “to do so would render a legal system uncertain, incoherent and dysfunctional”. Furthermore, Jogee “unflinchingly asserts that the effect of putting the law right is not to render invalid all convictions”.

Accordingly, the applications to reopen the appeals were refused, and the proper avenue for the applicants to consider was to refer their cases to the CCRC.