Jim Duffy, led by Felicity Gerry QC of Carmelite Chambers, has appeared before a Divisional Court challenging a decision by the Criminal Cases Review Commission (CCRC) not to refer the case of Anthony Davis to the Court of Appeal’s Criminal Division. In 2009, Mr Davis was sentenced to life imprisonment with a minimum term of 35 years for the murder of businessman Edward Simpson, who died following a robbery at his Bradford home in 2007.

Mr Davies was convicted on the basis that he was part of a joint enterprise.  Although he was not present at the robbery during which the deceased was tortured and killed, the jury found him guilty of murder on the basis that he foresaw that really serious physical violence might be inflicted upon the victim. This was consistent with the law on joint enterprise as it was understood at the time.

In 2016, the Supreme Court held in R v Jogee that the law relating to joint enterprise had taken a “wrong turn” some 30 years earlier by creating an erroneous tangent of “parasitic accessorial liability” whereby liability was incurred if a secondary party embarked on crime A and foresaw the possibility that the principal would commit crime B, thus wrongly lowering the relevant mens rea from intention to mere foresight.

The Supreme Court clarified that in order for a secondary party to be guilty of murder it was not sufficient for the prosecution to prove that he had foreseen the possibility that the principal might cause serious injury or death. What had to be proved was that the secondary party knew the essential facts and acted intending to assist or encourage the principal in that crime. The presence or absence of foresight might still constitute evidence going to intention to assist or encourage, “but it is evidence and no more”: Jogee at para 98.

Following Jogee, Mr Davis asked the CCRC to refer his case to the Court of Appeal on the basis that there was a real possibility that his conviction would not be upheld, and that this would create a substantial injustice. The CCRC refused, concluding that his case was not sufficiently strong to meet the ‘real possibility’ test.

Mr Davis argues that its decision was irrational and seeks to have it quashed. His Honour Judge Bird granted permission for judicial review and, last week, Mr Davis’s claim was heard by Lord Justice Irwin and Mr Justice Kerr sitting at the High Court in Manchester. Judgment was reserved.

Jim and Felicity were instructed by David McCorkle of Duncan Lewis Solicitors.