Five defendants, in two joined applications to appeal, challenged their convictions for joint enterprise murder. The appeals also raised issues as to how young or vulnerable defendants are dealt with by the court. Whilst the applications to appeal were all dismissed, the court made important comments on the training of practitioners representing children and vulnerable defendants in the criminal courts, and announced that changes will be made to the Pre Trial Preparation Hearing (PTPH) form in order to ensure that the Practice Directions1 relating to vulnerable defendants are properly considered. The Court also emphasised the need for new counsel taking on appeal to consult fully with the original trial counsel and solicitors, following the McCook guidelines.2
Both appeals raised arguments about the joint enterprise direction given, following the Supreme Court case of R v Jogee  UKSC 8. These arguments were rejected by the court in all cases, following the Court of Appeal case of R v Johnson & Ors  EWCA Crim 1613. The court found that no substantial injustice had been done as given the evidence the jury must have found to convict, they would have been convicted even if the jury had been directed differently (paragraphs 92-94).
The appeals also raised issues of effective participation. Henry had been diagnosed with autism after the trial, McGill, Andrew and Corey Hewitt were all 14 at the time of their trial. They each had psychological evidence showing additional vulnerabilities. McGill, for example had ADHD and his cognitive ability was in the bottom 5% for children of his age. All argued that the Criminal Practice Directions for Vulnerable Defendants had not been followed, and that they had been unable to effectively participate in their trials. In the case of McGill, Hewitt and Hewitt there was a particular focus on the fact that all six defendants in the trial sat in the dock, with no supporting adults, for the duration of the trial contrary to the practice direction. On this point there was an intervention by the Equality and Human Rights Commission, who argued that there was a systemic problem in many trials leading to a lack of support for vulnerable defendants in court, a lack of adherence to the practice directions, and insufficient training for both practitioners and judges.
Whilst the appeal court found that it was “regrettable”(paragraph 157) that a discussion about where the defendants should sit did not happen in open court, it went on to find that, on the facts of this case, the fact that they were in the dock without a supporting adult, did not render the convictions unsafe. The appeal was also dismissed in the case of Henry, the Court of Appeal refused to allow the fresh evidence about his autism diagnosis, partly doubting the diagnosis itself, but also doubting whether, had it been known at trial it would have affected the verdict (paragraphs 60-64).
However the court did make a number of recommendations about how vulnerable defendants should be treated in court. At paragraph 220 onwards, under the section headed: “The adequacy of current procedures for the trial of young persons” the Court of Appeal confirmed: “if confirmation is needed, that the principles in R v Lubemba  EWCA Crim 2064 (in which the court highlighted best practice for vulnerable witnesses) apply to child defendants as witnesses in the same way as they apply to other vulnerable witnesses.” (paragraph 226).
In this paragraph of the judgment the importance of training on representing children in the criminal justice system for both practitioners and judges is made clear, and it states that the regulators intend to make such training compulsory, (although we are not aware of such an announcement from either the BSB or SRA). The Court goes as far as to say that an advocate would not be competent to take on a case involving a young witness or defendant without specific training.
At paragraph 227 the Lord Chief Justice announced that, having liaised with the criminal procedure rules committee, that they intend to amend the PTPH form. This will now include a checklist of the things that need to be considered when young defendants are in the Crown Court. It is assumed that these will mirror the requirements in the current practice direction. It will also require the judge with conduct to give reasons for departing from the practice directions.
This, it is hoped, will avoid a repetition of what happened in this case, where the practice direction was not mentioned in open court, and therefore the Court of Appeal expressed frustration at not knowing why certain measures, such as sitting outside the dock, were not implemented.
Further the court criticised the lack of proper enquiry with previous counsel. Anyone bringing an appeal with different counsel to those who acted in the trial, should consider paragraphs 125-133. The court made it clear that:
- The McCook3 procedure applies to all new advocates instructed in a case, “whether or not they believe the grounds involve criticism of the trial representatives.” (para 131)
- It is insufficient to send trial counsel the grounds of appeal. “Specific questions must be formulated and specifically put” (para 133) This is presumably in addition to sending trial counsel the grounds. Where there is implicit criticism it must be put “fairly and squarely”.
- Enquiries should be made of previous solicitors and all counsel, irrespective of whether they have left the profession (para 133).
- It will need to be certified on the form NG that all proper and diligent enquiries have been made, otherwise the “court will not entertain an application” (para 131).
This case shows the Court of Appeal’s continued reluctance to overturn previous convictions based on the pre-Jogee interpretation of joint enterprise.
However the case makes interesting reading for those representing young or vulnerable defendants. The changes to the PTPH form show the concern that there is that procedures are not currently being followed, and the submissions of the Equality and Human Rights Commission highlight the concerns that defendants who should deserve special protection either by virtue of their age, or their disability (in some of these cases both) are being tried no differently than other, adult defendants.
No one escapes that criticism, it is incumbent on the judge to ensure that any trial is fair, and the court owes additional duties to consider the welfare of child defendants. Defence counsel clearly need to be making more applications to follow the practice directions to benefit their clients, but even prosecution counsel should be considering what measures need to be taken to ensure that the defendant is effectively participating in their trial.
The comments the court made about training being made compulsory by the regulators is an interesting one, as there has been no such announcement that any training will be made compulsory. There have been a number of announcements by the regulators with regards to training and accreditation (see previous updates) but nothing that goes as far as what the court suggests.
Further, those representing children may be interested in reading paras 95- 99 which deal with the submissions on tailoring directions, this provides a useful summary on the arguments about tailoring directions for child defendants and discusses some of the recent scientific developments about adolescent brain development. Whilst the court did not find that the failure to tailor the directions in this case led to unsafe conviction, that does not mean that it may not be appropriate in cases involving young or vulnerable defendants for the directions to be so modified.
Equally, paragraphs 105 – 115 provides a useful summary of the correct criminal procedure and law as applicable to young or vulnerable defendants.
At para 112 when quoting the case of R v Barker  EWCA Crim 4 which discusses the Advocates Toolkit, and the importance of clear language and the avoidance of tag questions when questioning certain witnesses:
“It is important to emphasise that these observations apply to defendants as much as to other witnesses.”
The issue of tag questions is further considered in paragraph 113 where the Court emphasised to advocates questioning vulnerable witnesses and defendants that “it is particularly important for tag questions to be avoided”.