Baker, R v [2003] EWCA Crim 2790

Case No 2001/06380/D2[2003] EWCA Crim 2790
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE FAWCUS
Venue AT MANCHESTER CROWN COURT, Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 st October, 2003
Before
LORD JUSTICE PILLMR JUSTICE ROYCETHE RECORDER OF CHESTER
Between
THE QUEENRespondentMARK ANTHONY BAKERAppellant
Mr. Timothy Holroyde QC for AppellantMr. Anthony Gee QC for RespondentHearing Hearing dates : 10 th October, 2003
JUDGMENT
[1]Baker appeals against conviction by leave of the single judge. The Events[2]The deceased Tariq Javed, a taxi driver, was killed at about 5pm on 9 November 2000. He sustained a fatal wound to the right side of his head which was caused by severe blunt impact. Violence occurred between him, the appellant and Power when, having ridden in the taxi, they tried to make off without paying. The other occupants of the taxi ran off. After the violence the taxi was driven off by the appellant, with Power as a passenger, leaving the deceased fatally injured on the road. In the course of driving away, the appellant drove one wheel of the vehicle over the deceased but that impact was not the cause of death. The deceased’s coat was also taken and the taxi was later found abandoned and burnt out.[3]Evidence was given by a number of people who observed the incident. It was dark but there was street lighting.[4]Angela Gorton was sufficiently disturbed by what she saw near the taxi to call the police. While phoning them, she saw two men on the driver’s side of the vehicle one hitting the other. The vehicle was driven away fast with the rear doors open. Martin Banks also saw a man on the driver’s side of the vehicle, punching the driver. He heard a loud scream. Linda Johnston, who knew the appellant, saw the taxi driver pulled out of the car by his top half by the appellant and being hit. He was screaming. She saw the back wheel of the taxi go over the driver, which was driven away at speed.[5]Three teenage girls also observed the incident. Samantha Keenan, who knew the appellant, saw an Asian man in front of him and lying on the ground groaning. The appellant got into the driver’s seat and another man came over and started kicking the Asian man in the head. That man also pulled off the victim’s coat, kicked him again and stamped on him. He got into the passenger’s seat of the car. He was not simply restraining the Asian. She did not see the appellant do anything to the Asian. She saw someone else leap out of the car and run. The appellant mouthed at her "Keep your mouth shut".[6]Grace Franks said that the appellant hit the driver as did the other man. They punched and kicked him. After the appellant hit him a couple of times, he entered the taxi. He had hit the driver while the driver was on the ground. The other man had kicked the driver while he was down. When they drove off, she shouted a warning because the driver’s head was near the wheel of the vehicle.[7]Hayley Horrocks saw the other man kicking the Asian in the chest and holding him by his hair. There were five kicks. The appellant, whom she knew, stood by watching and, when he saw her, got into the car. He told the other lad to get in. He kicked the Asian a few more times before getting in. The Asian banged his head on the ground when he fell back. There was blood and he was moaning.[8]Dr.Lawler, consultant pathologist, was of the opinion that there were 20 to 25 separate blows on the deceased which ranged in seriousness. The cause of death was a fractured skull caused by a "blunt force injury", likely to have resulted from an accelerated fall to the road or pavement, the head striking an unyielding surface. An unassisted fall from a seated position was unlikely to have caused the injury. There were five fractured ribs, which could have been caused by a single forceful stamp, and injury to the right cheek and forehead. The blood of the deceased was found on the front offside wheel arch of the vehicle.[9]A simple fall would not have caused this skull fracture. An accelerated fall would have been required. There would have needed to be a "considerable amount of force" by way of pushing, punching or avoiding action if the deceased had been sitting at the time he went over.[10]The appellant’s evidence was that he had stayed in the taxi. The taxi driver took hold of Power and Power was trying to get him off. The appellant denied trying to pull the driver out of the taxi. He said that Power and the driver were fighting, punching, just the two of them. The driver was getting the better of Power and the appellant tried to get him off. He said that he kicked the driver just once in the leg and did not knock him to the floor. The driver came for him and they punched each other. Power was also punching him. "I think that we knocked him out. He fell to the floor and his eyes were like glazed. He was at the side of the car". He said that he did not kick the driver to the ground and did not see Power doing any kicking or stamping. The appellant was defending his friend. He heard no sound of the driver’s head hitting the pavement.[11]The appellant said he was wanting to get away. He reversed the car back. He thought the driver was on the footpath and had no idea he was in the road behind the vehicle. He did not hear any shouting. As he drove, he was not intending to drive over the deceased.[12]Power’s evidence was that as soon as the taxi stopped the others jumped out. That caught him unawares and the driver grabbed hold of him. He was trying to get away. He called to Baker for help and Baker re-appeared. His impression was that the driver got out on his own. He saw Baker and the taxi driver exchanging punches.[13]Power said that he hit the taxi driver and pulled him forward so that the driver fell on top of him. As the driver got up he was hitting Power. Power said that he hit the driver, trying to get him away. "I kicked him off me and he fell back". When the witness got up, the driver was on his back unconscious. He did not see the driver hit the floor. He had no intention of causing the driver any harm, just getting him away.[14]The taxi was later found burnt out. Baker denied that he had set fire to it. Power admitted stealing the coat of the deceased. The appellant denied knowing anything about that. The summing-up[15]The judge gave an appropriate direction as to the ingredients of the offence of murder. He gave a direction as to how the jury should approach the question of intent. He referred to the prosecution case which was that the two defendants joined together in an unlawful attack, with the necessary intent, in the course of which the deceased suffered a fatal injury. There being a joint enterprise, they were both responsible for the "accelerated fall onto the roadway" and it did not matter which of them struck the blow which led to it.[16]The judge gave what is accepted to be a correct direction as to the law relating to joint enterprise and withdrawal therefrom. The judge went on to direct the jury as to their approach if they were not satisfied that it was a case of joint enterprise. He stated that they would then have to decide "whether it was the act of Baker or the act Power which led to the death". He added that there was force in the submission that "unless you are sure that it was a joint enterprise, as the Crown suggests, it would be difficult for you, on the evidence you have heard, particularly the expert evidence, to convict one rather than the other". The submissions[17]It is safe to assume that the jury convicted the appellant on the basis that he was a party to a joint enterprise the purpose of which was to cause at least very serious bodily harm to the taxi driver. The principal submission of Mr.Holroyde QC, on behalf of the appellant, is that the correct direction as to joint enterprise was undermined because the judge’s summary of the evidence was insufficiently linked to it. The prime candidate for the fatal blow or blows was Power’s kicking of the deceased and there was evidence that it occurred after the appellant had entered the car. The jury’s attention should have been drawn specifically to his case that he was no longer party to the joint enterprise when the fatal blow or blows were struck.[18]Two further points are taken. The first is that when directing the jury on the question of intent, the judge referred to "the manner in which the taxi was driven off and over Mr.Javed". The judge later reminded the jury that "At the end of the day it is not the car going over Mr.Javed that caused the death". The judge added that "The relevance of what happened, as I indicated at the outset, you may feel, is as to what was in the mind of Mr.Baker or Mr.Power at the time when they went off". The submission is that it is dangerous to invite a jury to work backwards from a finding as to a state of mind at a later stage to a finding as to a state of mind when death was caused. Moreover, there was a danger that the jury might find the intent at the time of driving to be itself the relevant issue when, on the evidence, it was not.[19]The second supporting submission is in relation to the example used by the judge when directing the jury as to the possibility of one or other defendant alone being guilty. The judge stated that if the jury were "to conclude on the evidence, for example, that Baker had pulled Mr.Javed from the car and that Mr.Javed may have suffered, in the course of that, a crack to the head of the sort of severity that Dr.Lawler suggested was sufficient to cause death, and that Power, being still then in the taxi was not a party to that act, then it would not be an unlawful killing on behalf of Power."[20]It is submitted that the medical evidence does not support that possibility and that the example should not have been used.[21]Mr. Holroyde accepts that, throughout the summing-up, the judge had to be even handed as between the appellant and Power. They were not blaming each other directly but, in assessing the evidence, the jury would need to consider which of them did what. Mr. Holroyde submits, however, that in a case where the jury were likely to view the appellant with disfavour because of the dreadful incident in which he was involved, further direction was required, on the evidence, as to the possibility that the joint enterprise had ended before the fatal blow was struck. While it was open to the jury to conclude that a joint enterprise persisted throughout, the summing-up should have contained further analysis of its possible termination. There could be termination without a communication of termination to the other party to the enterprise.[22]For the prosecution, Mr.Gee QC refers to the strength of the evidence that there was a joint enterprise which persisted throughout. The appellant initiated the incident by seeking to avoid a modest fare. There was evidence that he pulled the deceased from the taxi. There was evidence of a vicious and sustained attack on the deceased with 20 to 25 separate blows, when the appellant was still at the scene. There was evidence from eye-witnesses that the appellant inflicted blows on the deceased. He admitted kicking the deceased on the leg and stated in evidence :
"I think that we knocked him out"
. Moreover, the two men drove off together and at speed. It was sufficient, it is submitted, for the judge to have given the directions he did and then to summarise the evidence. Further comment in the course of the summary might have been unfair to one or other defendant. The evidence was fairly and sufficiently summarised in a way which had regard to the potentially differing case of each defendant. Conclusions[23]Our conclusion is that the summing-up was fair and sufficient and gave the jury such guidance as, in the circumstances, they needed. The possibility that there was not a joint enterprise at the material time was brought home to the jury when they were directed as to the possible individual and separate responsibility of each defendant.

The judge stated:

"A similar argument could be advanced by Baker, if you concluded that Power had kicked, punched Mr.Javed to the ground at a time when Baker had withdrawn from the affray and got into the driver’s seat of the taxi and that Power’s attack at that stage may have caused the fatal injury and, therefore, that Baker was not a party to that attack, then again it would not be an unlawful killing on the part of Baker."
[24]While that example might more logically have been given when the judge gave his direction, already mentioned, as to the jury’s approach if they were not satisfied that it was a case of joint enterprise, it alerted the jury to the possibility, properly and persuasively argued on behalf of the appellant before this Count as no doubt before the jury, that the appellant had withdrawn from the enterprise before the fatal injury was caused. There was no requirement to return to that question at a later stage in the summing-up.[25]The jury were sufficiently directed on the question of intent and we see no risk that they might have misunderstood the time at which intent was to be judged. Conduct immediately following an offence may throw light on a defendant’s state of mind at the time the offence is committed.[26]As to the example given by the judge, and set out at paragraph 20 of this judgment, it is clear that the jury convicted on the basis of a joint enterprise and did not convict the appellant on the basis postulated in that direction. It was not relevant to the jury’s conclusion. Moreover, while there was no direct evidence of a crack to the head at that stage of the incident, we see no risk that the judge’s words might have wrongly influenced the jury in their consideration of the appellant’s participation in the joint enterprise which led to the death.[27]No doubt has been cast upon the safety of the jury’s verdict on Count 1 and the appeal on that count was dismissed for those reasons. Robbery[28]While it could not have influenced the jury’s conclusion on the charge of murder, the addition of the robbery count appears to us to have introduced an inappropriate complication into this trial. In relation to the appellant, the issue was not straightforward because of the different routes available. They could have convicted on the basis that the appellant robbed the deceased of the vehicle, as distinct from taking and driving it away as a getaway vehicle. They could have convicted him on the basis that he was jointly responsible with Power for the robbery of the jacket.[29]These possibilities were carefully put to the jury in the summing-up. Moreover, they were correctly directed that it was sufficient to be sure that the offence was proved with respect to the vehicle alone. What was missing was a direction that they all needed to be sure that the offence was made out with respect to at least one of the items. They needed to be warned that there could be no finding of guilt if some of them concluded that the appellant was guilty of robbery with respect to only one item and others of them sure only with respect to the other item.[30]In the circumstances, the absence of such a direction was fatal to the conviction and the appeal against conviction on the charge of robbery is allowed.