Andre Johnson-Haynes [2019] EWCA Crim 1217

Andre Johnson-Haynes v R [2019] EWCA Crim 1217 concerned an appeal against conviction for murder referred by the Criminal Cases Review Commission on the ground that the law of joint enterprise had changed following R v Jogee; Ruddock v The Queen [2016] UKSC 8. The Court of Appeal dismissed the appeal.

On 8 July 2009 at the Central Criminal Court Mr Johnson-Haynes had been convicted of murder by a majority of ten to two. He was then aged 18 and was ordered to be detained at Her Majesty’s pleasure with a minimum term of 12 years, later reduced to 11 years. He was one of seven defendants convicted in connection with the killing of Shakilus Townsend, a 16-year-old boy. The verdicts against Mr Johnson-Haynes and four co-accused were by majority; one co-accused, Mr McLean, was convicted unanimously. An earlier application for leave to appeal by Mr Johnson-Haynes and two others had been refused.

On 3 July 2008 shortly before 1.45 pm Samantha Joseph deliberately lured Mr Townsend by bus to a cul-de-sac in Beulah Crescent, Thornton Heath, where a waiting group of youths, some hooded and masked, attacked him. Mr Johnson-Haynes was among those present. Several male defendants were associated with a local gang called Shine my Nine, led by Mr McLean. Although there was no evidence that Mr Johnson-Haynes had participated in gang activities before that day, he was friendly with Mr McLean and admitted knowing he led the gang. Police found artwork at the appellant’s address making reference to the gang and three co-accused by their street names. Telephone evidence indicated that Mr McLean contacted the male defendants on the morning of the murder, assembling the group for the attack. He made or tried to make contact with Mr Johnson-Haynes at 10.45 am and 1.35 pm.

At about 1.30 pm the driver of a number 450 bus was approached by a group of young black men including Mr Johnson-Haynes, who asked whether they could travel one or two stops without passes, although Mr Johnson-Haynes himself had a pass. One or two stops would have taken them to where they expected to find Ms Joseph and Mr Townsend. The driver refused and the group, which still included Mr Johnson-Haynes, walked off together towards Spar Hill with Mr Thompson carrying a baseball bat in a bag. Despite warm weather Mr Johnson-Haynes was wearing gloves. As they made their way to the scene three crouched behind parked cars and ran after a bus on which they believed the victim was travelling. Some wore hoods and bandanas to disguise their appearance and congregated in Osborne Road close to the scene, awaiting the arrival of Ms Joseph and the victim. They looked excited, as if waiting for something to happen. Independent evidence placed Mr Johnson-Haynes and five co-accused among that group.

When they realised the victim had arrived, members of the group ran towards him shouting “Get him”. They chased, cornered and attacked him. Two to four members of the group punched and kicked him to the ground. He was kicked again and Mr Thompson hit him repeatedly with the baseball bat to his head and shoulders. One or more of the attackers, probably Mr McLean, stabbed him four times. One wound was to his chest; the knife had been deliberately twisted to create a very large wound. Those not physically involved in the attack stood close by. The attack did not end and the attackers did not leave until the victim had been fatally wounded. Cell site evidence after the killing indicated that Mr Johnson-Haynes, Ms Joseph, Mr McLean, Mr Thompson and Mr Akinfenwa made or received calls or texts when their telephones were in the same area and to and from each other. Mr Johnson-Haynes was also in communication with Ms Joseph.

When Mr Johnson-Haynes realised his image had been captured on bus CCTV he surrendered to police. In interview he gave a false alibi that he maintained until trial. The prosecution case was that this was a carefully planned attack to cause at the very least really serious bodily harm. All the group played their part; if they did not physically take part in the beating and stabbing, they knew what was planned and were present to corral the victim for the attack and encouraged it, willing to participate if called upon.

At trial Mr Johnson-Haynes initially relied on alibi but after evidence from a co-accused he admitted presence. He denied participating in the attack and knowledge of any weapon. He was of previous good character and claimed the artwork had been created by somebody else. He accepted knowing members of the gang, mainly through Mr McLean, and admitted telephone contact with Mr McLean on the morning of 3 July but insisted he had travelled to Thornton Heath to visit another friend. When that friend was not at home he went to see Mr McLean. He claimed he then met Mr McLean and Mr Thompson by chance. Mr Thompson was carrying the bag said to contain the baseball bat. He did not know what the bag contained or that Mr McLean had a knife in his waistband. He knew of no planned attack but did know Mr McLean was expecting a fight. He took a bus from Northwood Road intending to go home and accepted that on CCTV footage he was with the other young men and was seen wearing gloves, which he insisted was for fashion purposes. He said it was coincidence that when he got off the bus he was with the others as he walked up Northwood Road. Sensing both danger and a fight he ran down the road with the group but was unaware, he claimed, of Ms Joseph and the deceased arriving. He accompanied the group to the cul-de-sac but denied seeing the baseball bat. He saw Mr Thompson and Mr Akinfenwa attack the deceased. He ran off and took the bus home. He had been threatened by his co-accused since the incident and had lied in his defence statement and in interview because he was afraid. Mr McLean admitted stabbing the deceased with a knife but claimed self-defence. Ms Joseph agreed she had lured the deceased into a trap knowing there was a plan to assault him but denied knowing he would be stabbed or seriously injured. Mr Thompson claimed Mr Johnson-Haynes brought the bag containing the bat to the scene and gave it to him. He then assaulted the deceased with it in self-defence because the deceased was carrying a knife. Mr Johnson-Haynes and Mr McLean kicked the deceased while he was on the ground. The others did not give evidence.

The judge’s directions were impeccable according to the law as it then stood, set out both in the summing-up and in written steps to verdict agreed by all parties. The jury were asked first whether they were sure the man who inflicted the fatal wound did so deliberately with a knife and at the time intended to kill or cause really serious bodily harm. They were then asked whether they were sure he was acting unlawfully, not in reasonable and necessary self-defence, and whether they were sure the defendant whose case they were considering took part in an unlawful attack. The judge set out the various ways in which someone may take part in an unlawful attack, emphasising that mere presence was not enough; presence could only amount to proof if it was presence to provide support for the physical attack should it be necessary. The jury were then asked whether they were sure that in taking part in the unlawful attack the defendant whose case they were considering knew that one of the attackers had a knife and either intended to kill or cause him really serious bodily harm or realised as a real possibility that one of the attackers might use the knife with the intention of killing or causing really serious bodily harm.

During their retirement the jury asked several questions. First, if they were sure a defendant took part in the attack and realised there was a real possibility that one of the attackers may cause really serious bodily harm but were unsure if they knew about the knife being present, were they able by law to reach a verdict of murder or manslaughter. The judge repeated his directions to the effect they had to be sure a defendant knew about the knife to convict of either offence. A second question related to Ms Joseph’s knowledge of the knife. In a third question the jury asked to be reminded of the directions on participation in the unlawful attack. In a fourth question they sought guidance on the stage at which a particular defendant would have to know that one of the attackers had a knife for them to consider whether to try the defendant of murder or manslaughter; would they have to have knowledge before the attack, at the time of the attack or even after the fatal wound was inflicted. In answer to this question the judge directed the jury again that they must be sure the defendant knew before the unlawful attack began that one of the attackers had a knife and then took part in the unlawful attack with the intention or realisation he had set out previously.

Mr Michael Birnbaum QC, appearing for Mr Johnson-Haynes on the reference, advanced the grounds suggested by the CCRC. First, he argued the judge misdirected the jury in directing them that a defendant who participated in the attack on the victim was guilty of murder if he realised as a real possibility that one of the attackers might use the knife with the intention of killing the deceased or of causing him really serious bodily harm. The Supreme Court in Jogee held such directions were wrong in law. To be Jogee-compliant the judge should have directed the jury that a secondary party must be proved to have intended that the victim should suffer grievous bodily harm at the very least. Second, Mr Birnbaum argued that the circumstances of the offence and the offender meant that there would be a substantial injustice if the court were to dismiss the appeal and that the court should have doubts about the safety of the conviction. The factors upon which he relied included that Mr Johnson-Haynes played no active part in the attack and was convicted on the basis of encouragement by presence; his role was very different from that of some of his co-accused; he was recruited relatively late in the day; he wore no disguise; the only evidence of his direct participation came from Mr Thompson and was incredible; and he did not dispose of his phone after the killing. Mr Birnbaum submitted that the jury’s verdict was consistent with Mr Johnson-Haynes realising that Mr McLean had a knife very shortly before the attack started rather than his setting out to participate in an attack which he knew in advance might involve the use of a knife. The jury’s notes to the judge during their retirement indicated their concerns; in particular the first one showed they focused on the issue of foresight rather than intent. The jury convicted only by a majority. Lies told by Mr Johnson-Haynes could not be relied on to support the argument that the jury would, if properly directed, have found he intended to cause grievous bodily harm. Had the jury been properly directed the good character direction as to propensity would have been of much stronger effect and would have led the jury to conclude they could not be sure he had formed the necessary intention. Mr Johnson-Haynes was a young man of previous good character. The continuing stigma of a conviction for murder in what was a notorious case would be very great. Mr Johnson-Haynes was arrested and convicted in 2009; his minimum term was set at 12 but reduced to 11 years because of his exceptional progress whilst in prison; his earliest date for parole was in March 2020; he had served far more time in prison than he would have served for a sentence for manslaughter, which would be unjust even if he had had no realistic career ambitions. In fact he had always had a strong and realistic ambition to work as a professional rugby player and coach, as confirmed by Mr Bob Hardman, an England Rugby Football Union coach. This was said to be relevant in two ways: first, if he had been sentenced for manslaughter only he could have commenced his career some years ago; second, as a sportsman in the internet age a conviction for a notorious murder would almost inevitably come to light during his career and may have an adverse effect on his progress. Drawing those factors together, Mr Birnbaum invited the court to find that a jury directed in accordance with Jogee may well have been unable to be sure that he personally had the necessary intent required for murder and may well have been prepared to distinguish him from his co-accused. Mr Johnson-Haynes’s participation, Mr Birnbaum suggested, was far less than that of other appellants or applicants who had appeared in appeals or applications before the court since the Jogee judgment was published. Mr Birnbaum conducted an extensive and thorough analysis not only of the facts of the case but also of the various authorities that had followed Jogee, in particular R v Johnson & Ors [2016] EWCA Crim 1630, the lead case on the application of the Jogee principles. He analysed the factual findings the jury must have made and arrived at three: Mr Johnson-Haynes participated in the joint enterprise; he knew that Mr McLean had a knife before the unlawful attack began; and he realised that Mr McLean might use the knife with intent to cause grievous bodily harm or kill. It was the third finding, relating to foresight, upon which Mr Birnbaum focused. He maintained, and persuaded the CCRC, that the jury’s questions indicated it was the issue of foresight that was uppermost in the jury’s minds and therefore the court should be particularly concerned about this case. He acknowledged that the test for substantial injustice was a high threshold but relied on the words in paragraph 21 of Johnson that the threshold was not limited to considering simply the circumstances of the offence. He placed reliance on the words “primarily and ordinarily” the court would have regard to whether Jogee-compliant directions would have made a difference. Mr Birnbaum maintained that there must be circumstances where an injustice could be demonstrated without reference to the facts of the case or in combination with the facts of the case. He gave as an example the decision in R v GS [2018] EWCA Crim 1824, in which an appellant was entitled to rely on the effect of a conviction on her immigration status to meet the high threshold. Finally, Mr Birnbaum sought to attack the test as set out in paragraph 21 of Johnson and interpreted in R v Towers [2019] EWCA Crim 664 at paragraph 61 and in the decision in R v Crilly [2018] EWCA Crim 168, arguing that there was a tension in the test applied in each case and that any clarification the court could give would be welcomed.

Lady Justice Hallett, Vice President of the Court of Appeal Criminal Division, giving the judgment of the court, first observed, as Mr Duncan Atkinson QC for the Crown had submitted, that the need to satisfy the test for substantial injustice identified in Johnson was an essential and distinct requirement for an appeal based on a change of law. An applicant for exceptional leave must establish substantial injustice before the court would consider the safety of a conviction. It might well be that if an applicant could satisfy the test for substantial injustice the court would need little time to resolve the issue of safety, but they were distinct questions. As was stated clearly in Johnson at paragraph 18, the fact that there had been a change in the law was not itself sufficient. As the Supreme Court stated at paragraph 100 of Jogee, a long line of authority clearly established that if a person was properly convicted on the law as it then stood, the court would not grant leave without it being demonstrated that a substantial injustice would otherwise be done. The need to establish substantial inj

Jogee ; Ruddock v The Queen [2016] UKSC 8; [2016] 2 All ER 1; [2016] 2 WLR 681; [2016] 1 Cr App R 31, [2017] AC 387
Lewis Johnson and Others [2016] EWCA Crim 1613
Rahmdezfouli [2016] EWCA Crim 1630
GS [2018] EWCA Crim 1824, [2019] 1 Cr App R 7
R v Towers [2019] EWCA Crim 664
Crilly [2018] EWCA Crim 168; [2018] 4 WLR 114