Mitchell & Anor, R. v [2008] EWCA Crim 2552

[2008] EWCA Crim 2552Case No 2007/05372 B1 &2007/05741 B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BRADFORD
THE RECORDER OF BRADFORD, HH JUDGE GULLICK
T20077041
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2008
Before
LORD JUSTICE THOMASMR JUSTICE FIELDMRS JUSTICE DOBBS
Between
ReginaRespondentLaura MitchellAppellantHenry BallantyneApplicant
Mr Peter Birkett QC for Appellant (Laura Mitchell)Mr J G K Hyland QC for Applicant (Henry Ballantyne)Mr Adrian Waterman QC & Mr David Brooke for RespondentHearing Hearing date: 23 July 2008
Judgment

Introduction

[1]Just before 2 a.m. on the morning of 28 January 2007, Craig Powell ordered a taxi to take him and his girlfriend, Claire Francis, his brother Dean and Dean’s girlfriend from the King’s Head pub on Halifax Road, Bradford. They had been with others, including Andrew Ayres. When the taxi arrived in the car park which surrounded the pub, Laura Mitchell (the appellant) and co-defendants got into the taxi. The dispute which then ensued led to a violent incident in the course of which Carl Holmes, one of the co-defendants, stamped on the head of Andrew Ayres with such force that he died of his injuries. Carl Holmes pleaded guilty to murder. The appellant, Henry Ballantyne (the applicant), Michael Hall and Jason Fawthrop were tried as secondary parties to that murder and for violent disorder before the Recorder of Bradford and a jury in August and September 2007. After 22 days of evidence and speeches the appellant, the applicant (Ballantyne) and Hall were convicted of murder and violent disorder. The appellant, the applicant (Ballantyne) and Hall were each sentenced to life imprisonment with a minimum term of 13½ years with concurrent sentences for the violent disorder. Carl Holmes was also sentenced to life imprisonment with a minimum term of 13½ years to reflect the fact that although he was the person who had inflicted the fatal injury, he had pleaded guilty to murder. Jason Fawthrop was acquitted.[2]The appellant appeals against conviction by leave of the Single Judge; the applicant (Ballantyne) renews his application for leave to appeal against sentence after refusal by the Single Judge.[3]There were originally two issues on the appellant’s appeal against conviction: i) Whether there was sufficient evidence for the Recorder to leave the count of murder to the jury on one of the first of the bases on which he had left it – direct physical violence to the deceased at the time that the deceased was killed. ii) The correctness of the Recorder’s directions on the second basis - joint enterprise. As we shall explain, the first issue was not pursued. It is necessary first to set out the facts before turning to consider the legal issues on the directions given in respect of joint enterprise.

The prosecution evidence

[4]As we have briefly set out above, the incident began when the appellant and her co-defendants got into a taxi ordered by Craig Powell. Shortly after they had got in, the taxi driver realised that they were not the fare and asked them to leave. At the same time Craig Powell came out and asked them to get out. He then went back into the pub and came out with his girlfriend, Claire Francis.

The outbreak of violence

[5]What then ensued in the car park outside the front door of the pub was a violent attack on Claire Francis, Craig Powell and subsequently Dean Powell by the appellant and her co-defendants. Although we will set some of the evidence out, it was accepted on behalf of the appellant that there was no doubt that the appellant was centrally involved at that stage of the violent incident and that her conduct, seen by many witnesses, was violent, abusive and aggressive. It was conceded that the jury were fully entitled to conclude that she was involved not only at the very start of the trouble but was primarily responsible for it. It was also accepted that the appellant was active in the violence that immediately followed and kicked and punched Claire Francis and Dean and Craig Powell.[6]In the light of that acceptance, it is, we consider, only necessary to refer to a small part of the evidence in relation to what happened immediately after Craig Powell and his girlfriend came out to be followed by Craig Powell’s brother, Dean. Craig Powell’s evidence was that as he came out of the pub he saw his girlfriend arguing with the appellant. He was then attacked by the men who were with the appellant. It is clear that at that stage Claire Francis was attacked by the appellant who grabbed her hair, thumped her and caused her lip to bleed badly. The appellant then turned her attentions to Craig Powell whose evidence was that the appellant and the co-defendants attacked him; he went to the ground where he was kicked and punched. His brother, Dean, and the deceased, Andrew Ayres, came out. His brother pulled one of the attackers away and the appellant jumped on his back. She scratched at him and struck him. He shrugged her off and told her to stay away. He was then attacked. Many other witnesses saw the appellant’s aggressive and violent behaviour. We do not think it necessary to set out more of the detail of the fight until there was a lull in the violence.

The lull in the violence and the subsequent events

[7]During that lull there was ample evidence to show that: i) Most of the appellant’s co-defendants then crossed Halifax Road, the road outside the pub, and went a short way down Buttershaw Lane to No. 8, the house of Jason Fawthrop. ii) Craig Powell, Dean Powell and Andrew Ayres walked to the mouth of Buttershaw Lane. iii) The co-defendants obtained from No. 8 Buttershaw Lane a knuckleduster, a CS spray canister and what was described as a medieval mace. Accompanied by the applicant (Ballantyne), they returned to the car park together, it seems, with Jason Fawthrop and his girlfriend. iv) Dean Powell, Craig Powell and Andrew Ayres had seen this happen. They thought they saw knives. Anticipating they were about to be attacked, they all retraced their steps to the front door of the pub. That had been locked from the inside and they were unable to enter. v) A chase around the pub then followed. Craig Powell successfully evaded the attack by running into another lane alongside the pub and opposite to Buttershaw Lane; Dean Powell was caught by the co-defendants in front of the pub on the car park and was severely assaulted, being punched to the face and body as he stood against the pub. vi) Andrew Ayres was also caught by the group. He was knocked to the floor and kicked and stamped on; he died subsequently in hospital. As we have set out, his death resulted from the stamping by Carl Holmes upon the head and upper neck.

The appellant’s conduct during this time

[8]Although it has been possible to summarise that part of the incident without referring to the evidence given by each witness, it is necessary to set out a summary of the evidence given by the relevant witnesses in relation to the appellant’s conduct during the part of the incident after the lull and the visit by her co-defendants to 8 Buttershaw Lane. That evidence was as follows: i) John Walsh was outside in the car park when the incident began. After describing that part of the incident we have summarised, he saw the appellant without any shoes on during the attack upon Craig Powell which occurred after the violence had started. After he had seen the co-defendants go to Buttershaw Lane, he could hear the appellant saying, “Where are my fucking shoes?” She walked towards the pub shouting obscenities saying, “I want my shoes”. He crossed the road and saw the appellant around the front door of the pub but at that stage no violence was taking place. He then saw Craig and Dean Powell return to the car park chased by the co-defendants. He described what then happened but said nothing about the actions of the appellant. ii) Mrs Christine Gaffey was in the doorway of the pub. She had seen the appellant violently attack Claire Francis and Craig Powell. She also saw the appellant without shoes; she was looking for something and apparently found something. She moved away from the door. When she returned she saw the appellant going round the corner into Buttershaw Lane with one or two males, one of whom was pulling her round the corner. iii) Claire Rothery was at the front door at the point in time after which Andrew Ayres had been fatally attacked. She saw two men and a girl making off into Buttershaw Lane with the girl looking back as she did so. iv) Mrs Dorothy Walsh at this point saw the appellant going across the road and joined a group of lads. The appellant was then hitting and kicking a big guy. She saw her with two guys trying to pull her away. v) Ross Atkinson who was in the back of a car which had come along Halifax Road saw the incident at the stage when the co-defendants were chasing Dean Powell, Craig Powell and Andrew Ayres. He saw two females in the car park and saw, he said, one of the females stamp several times on the head of the deceased. vi) Claire Clough was a passenger in a car that had come down Buttershaw Lane towards Halifax Road. When it stopped she saw a woman kicking a man violently to the head. It was contended on behalf of the appellant that this referred to the earlier part of the incident. vii) Tawney Guest had left the pub and got into a taxi with Mr Brayne, her mother and Ebony Guest after the initial violence. As they got into the taxi, Tawney Guest and her sister saw the appellant with her co-defendants at the sandwich shop on the side of Halifax Road opposite to the pub. All the women in the taxi then saw the appellant walking determinedly with a purpose (or on a mission back) across Halifax Road despite the efforts of her boyfriend (Michael Hall) who was trying to stop her. viii) In her interview the appellant said that after the fighting stopped she went with Michael Hall into the road. Michael Hall told her that they were going; she thought that the incident had stopped. She would not go as she had lost her shoes and wanted to go back and get them. She told her boyfriend that she was not going without her shoes. She thought she could see one of the shoes in the car park and walked back across the road. She found the first shoe almost straight away. She continued to look for the other one. She did not know that weapons were being acquired from 8 Buttershaw Lane. She did not see any violence, only people running in the road. She could not see her other shoe and eventually gave up, walking across the car park towards Buttershaw Lane. As she did so she saw her other shoe at the front of the car park and picked it up. She then went with Michael Hall up Buttershaw Lane and looked back over her shoulder and saw her co-defendant, Holmes, coming towards her. She added, “When I was on the car park looking for my shoe I was not there encouraging anyone. I did not want a fight. I didn’t want to support a fight. I did not want to encourage a fight.”[9]After Ayres had been attacked, the fighting stopped. The appellant and her boyfriend, Michael Hall returned to 8 Buttershaw Lane from which they left by taxi shortly afterwards.

The submission of no case to answer

[10]At the close of the prosecution case, it was submitted on behalf of the appellant that there was no case to answer: i) The incident comprised two distinct parts - one before and one after the lull in the fighting. Therefore there were two distinct joint enterprises. The appellant was not engaged in the second. ii) There was no evidence that the appellant had entered number 8 Buttershaw Lane or had participated at all, either by encouragement or by joining in the fighting, in the second part during which Andrew Ayres was killed.[11]The Crown accepted that there was no evidence that she had gone to No 8, but contended that there was a case to answer either i) On the basis that there was evidence (based primarily on the evidence of Ross Atkinson and Claire Clough) that the appellant had played a direct part in the attack on Andrew Ayres; or ii) That she was the party to a single joint enterprise from which she had not withdrawn at the time of the fatal attack. As the appellant had remained present it was open to the jury to conclude that she was there to encourage the others and that she had not withdrawn from the enterprise.[12]The Recorder ruled that there was a case to answer on both bases. His ruling on the second basis was made in reliance on the decision in R v O’Flaherty and others [2004] EWCA Crim 526 ([2004]2 Crim.App.R. 20). After referring to that case the Recorder said:
“In my judgment the jury could conclude that the events of that night amounted to one continuous criminal enterprise, albeit there was a short period of calm in the middle. On the evidence called thus far, the jury could conclude that Laura Mitchell was part of an enterprise to do violence to the two Powells and the deceased before the short period of calm. They may also conclude that her continuing presence on the car park whilst further violence was done, culminating in the death of Andrew Ayres, was not merely accidental and that her presence there was, and was intended to encourage others.”
[13]On the hearing of the appeal, the challenge to the first basis was not pursued. But it was submitted that the Recorder was wrong in his directions on the second basis. As he had left the case to the jury on that basis as well, the conviction is unsafe.

The appellant’s evidence

[14]After that ruling, the appellant and some of the co-defendants gave evidence. Although the appellant accepted that she ended up fighting with Claire Francis, she recalled that later on she had to look for her shoes and that she found both of them; she then went to Jason Fawthrop’s house. She said she saw no assault on Andrew Ayres but was aware of a general commotion. Her co-defendant Hall gave evidence; he saw the appellant looking for her shoes. The applicant (Ballantyne) gave evidence of the people leaving together from 8 Buttershaw Lane.

The summing up

[15]When the Recorder came to sum the matter up to the jury he gave a very thorough and detailed direction on the law. He provided them with written directions of some 12 pages and elucidated these in the course of his summing up. The directions in relation to joint enterprise in relation to the murder ran over some 40 pages of the transcript of the summing up.[16]The principal part of the general direction given to the jury on joint enterprise was: “Ladies and gentlemen, we will look at the document in the name of Michael Hall. That, in relation to the other two male Defendants, is phrased in identical terms, as indeed is most of that relating to Laura Mitchell, although there is a slight variation in her case which we will come to in a second. …: “Before you may convict Michael Hall (and I add for these purposes Henry Ballantyne or Jason Fawthrop) of the murder of Andrew Ayres, you must be sure that Carl Holmes unlawfully caused the death of Andrew Ayres intending to kill him or to cause him really serious bodily harm AND you must be sure of each of the following:(1) Michael Hall, Henry Ballantyne or Jason Fawthrop were part of an unlawful common enterprise with others, including Carl Holmes, to attack Craig Powell, Dean Powell and Andrew Ayres.(2) That at the time of the acts that caused the death of Andrew Ayres, Michael Hall, Henry Ballantyne and Jason Hall were still party to the common enterprise(3) That whilst still the parties to the common enterprise, Michael Hall, Henry Ballantyne and Jason Fawthrop at least realised that one or more of the others might cause someone really serious harm with intent to do so;(4) That the acts which caused the death of Andrew Ayres were not fundamentally different from the type of acts Michael Hall, Henry Ballantyne and Jason Fawthrop realised someone might carry out.” …. (a) Now the position with Laura Mitchell is different because it is alleged that she was involved physically with Andrew Ayres. There are in her case, therefore, two alternative bases upon which you may convict her. AND you must be sure of each of the following: (a) Now the position with Laura Mitchell is different because it is alleged that she was involved physically with Andrew Ayres. There are in her case, therefore, two alternative bases upon which you may convict her.

AND you must be sure of each of the following:

[17]In relation to the case against the appellant, he directed the jury as to the first basis – direct violence to Andrew Ayres. He then told them that if they were not sure of that, then they should consider the second basis - joint enterprise where the same four questions arose as he had enumerated in respect of her co-defendants. It is only necessary to refer to parts of the directions relevant to the question of whether there was one joint enterprise or two and whether the appellant was still participating if there was only one: i) In relation to the issue raised as to whether there was one enterprise or two he said: Whether there was one continuous joint enterprise or two separate ones with a lull in the violence in the middle is a question of fact for you to decide on all the evidence. The Prosecution say that this was, in reality, but one event … in reality, all one single event. Running through it was a single joint enterprise to do unlawful violence to the Powells and Andrew Ayres. The Crown submit that given the very short timescale to which I have referred, during which everything occurred that night, it is wholly artificial to try to split it into two. The Defence, particularly Mr Birkett QC, argue that given that there was a lull in the violence and given clearly the introduction of both human re-enforcements and weapons into what has been called ‘phase 2’, there were two quite separate and distinct common enterprises. The first, it is submitted, was a spontaneous outbreak of violence. The second, it is submitted, was a far more serious and planned event, albeit planned in haste. As I stress, whether this was all one joint enterprise is a matter of fact for you to decide. If you conclude that there was but one joint enterprise, then you will have to decide whether anything that Hall or Mitchell ([the appellant]) did in ‘phase 2’ – as it has been described – either showed that they were continuing to be parties to the joint enterprise or, in contrast, whether by anything they did they ceased to be members of at some point and if so, at what point. Similarly, if you conclude that there were two distinct joint enterprises, given the evidence shows that neither Hall nor Mitchell ([the appellant]) went up to 8 Buttershaw Lane at the end of the first phase, did they join in the second joint enterprise at all, or did or may their activities have come to a conclusion when the first phase ended?” ii) In relation to the issue as to whether the appellant (and her co-defendants) continued to participate, he said:
“Now whether an individual participates in a particular joint enterprise is also a matter of fact for you to decide. If you are sure that a Defendant whose case you are considering did participate in a particular joint enterprise, ask yourselves for how long did he or she do so? In any criminal activity involving more than one person, people may join, but they may also leave or withdraw, in which event, they have no criminal liability for what occurs after their withdrawal. It is undoubtedly the case that the person who joins a common enterprise after the fatal injuries or injuries have been inflicted is not guilty of murder because he was not a party to the unlawful violence at the time when the fatal injuries or injuries were caused. In contrast, once a person becomes a party to a joint enterprise, he or she is still, in law, taken to be participating in it at the time when the fatal blows are inflicted by one of his associates, even though he or she himself, or herself, may have ceased any physical violence against any other member of the attack group unless he, without questions, withdraws from the joint enterprise before the moment when the fatal blow by his associate is struck. Let me give you a brief example. Suppose three men embark upon an unlawful joint enterprise to do violence to three others in the street. Each man attacks some members of the other group. The first attacker fells his victim with a single blow. He does no more violence to him, or anyone else, and stands around watching. The second attacker fells his victim with three blows. There is no more violence to him or anyone else and he stands around watching. It takes the third attacker a considerable number of blows to knock his man down and he then kicks him a number of times in the head causing his death. Even though the fatal kicks were inflicted after the first two men had ceased physical violence themselves, those first two are, certainly in the absence of clear evidence of withdrawal, still participating and accordingly are still potentially liable for the death of the third man. They are still part of a common enterprise even though their own physical acts have concluded. Whether or not they have withdrawn will depend upon a number of things, not least their state of minds as you will see in a moment, but, for the purposes of deciding if they are still participating, a quirk or accident of timing cannot, you may think, excuse them from being participants in the last fatal blow. So what do I mean by withdrawal? iii) He then specifically directed the jury on the meaning of withdrawal from the joint enterprise: “Well any participant in a joint enterprise can withdraw their support for it at any time and if they have done so effectively, then they will not be liable for anything done after that withdrawal takes effect. In the case of a pre-planned criminal enterprise, such as the example I gave you earlier – the four men who decide to shoot someone – if before the appointed day, one of them sent a text message to all the others saying that he had had second thoughts and did not wish to take any further part in what had been planned and would not carry out his allotted task on the fatal day, then if the other three carry on, and carry out the shooting, then the context of the text message would be extremely strong evidence, would it not, that the sender had in fact withdrawn from the joint enterprise. Now clearly in such an example, which is a pre-planned attack, communication between the participants may be easier to achieve and there may be far more time in which to achieve it. In the case of a spontaneous event, it may well be more difficult and the position is, in reality, a little different. However, a mere change of heart is not sufficient. Neither, as I have just said to you, is the fact that you have, for whatever reason, ceased to attack a member of the other group whilst one of the other parties from the joint enterprise continues to attack and to kill the deceased. There must be some steps taken by the individual to withdraw. He could, for instance, shout out to Holmes to stop or not to do it, or even to pull him away. In the context of a spontaneous outburst of violence, and with fast moving events, that may be difficult. You should not, in the cold light of day, seek to impose strict and rigid criteria to a sequence of events which happened very quickly and may require someone to act instantaneously at a time when he or she cannot be expected to work out exactly what he or she needs to do in order to withdraw from an unlawful joint enterprise. Someone in the position of Michael Hall, Laura Mitchell ([the appellant]) or Henry Ballantyne ([the applicant]) must do something to demonstrate that they are, or may be, withdrawing from any ongoing joint enterprise in which they had participated, or that they do not seek to take part in any new one before you could properly consider the matter. Let me give you an example. If a group of men, in a spontaneous joint enterprise of violence are chasing another man armed with weapons, bottles and sticks through the streets of a town, and at a point when the man being chased and the remaining chasers turn a corner out of the sight of the one of the attackers, and that one attacker then stops, puts down his weapon and walks back the way he had come, and does not go round the corner, he does not participate any further in the attack which culminates two streets later with the death of the man being chased. In such a case, a jury may well conclude that that one man, by stopping and acting as he did, had withdrawn from the joint enterprise of which he was at one stage a willing member. If is a question of fact and degree in every case.”

The appellant’s submissions

[18]The principal submission was concise and clear. On the evidence there were two joint enterprises: i) The first joint enterprise was to be inferred from spontaneous violence that broke out after the taxi had been occupied by the appellant and her co-defendants. The appellant had participated in that joint enterprise. However in that enterprise there was nothing from which it could be inferred that weapons would be used. ii) A second and distinct joint enterprise which arose from the plan formed when weapons were acquired from 8 Butterworth Lane. The appellant had not participated in that enterprise. There was no evidence she knew that the others were going to 8 Butterworth Lane or that weapons were then to be used. There was therefore no evidence from which it could be inferred that she had participated in any way in the second enterprise.[19]If contrary to that submission, there was one enterprise, she had withdrawn from that enterprise. Her presence at the scene was only to find her shoes and she was not encouraging the violence that occurred when the co-defendants returned.

Our conclusion

[20]The case was presented principally by the Crown as a case of participation in the murder on the basis of a single joint enterprise; it appears also have been advanced on the basis that the appellant aided and abetted counselled or procured. Even though the facts relied on for each basis will often (as in this case) be the same, these are two different types of participation and liability: see the opinion of the Privy Council delivered by Sir Robin Cooke in R v Chan Wing-Su [1985] AC 168 at 175. It is clear that the case was summed up to the jury on the basis of joint enterprise and not aiding and abetting. It is that part of the directions which we have set out on joint enterprise that forms the grounds of the appeal.[21]The appellant’s acceptance that she was involved at the start of the violence and primarily responsible for it was in effect an acceptance that she became engaged in a joint enterprise to inflict serious bodily injury. Thus the first question for the jury was as to the scope of that enterprise – what had she joined up to and did what happen go beyond that. There was then a second question – was the enterprise she had joined still continuing and was she still in it when the fatal attack took place? As we shall explain, the question as to whether there was one incident or two falls within these two questions. (i). What was the scope of the joint enterprise and did what happen go beyond that?[22]The general principle is that where two persons embark on a joint enterprise, each is liable for what is done in pursuit of that joint enterprise, unless one of the parties goes beyond the scope of what was agreed. It is therefore necessary to decide what was agreed, tacitly or expressly, by the defendant whose case the jury is considering as being within the scope of that enterprise, see R v Chan Wing-Su at page 177-8; R v Powell; R v English [1999] 1 AC 1 at 17-18. Often there is little distinction between tacit agreement and foresight of the probable commission of an act: see Powell at page 20 relying on the observation of Lord Lane CJ in Wakely [1990] Crim LR 119: Lord Hutton (who gave the opinion with which all agreed) made clear at 20:
“that as stated by the High Court of Australia in McAuliffe v The Queen (1995) 69 AJLR 621 at 624 … ‘the scope of the common purpose is to be determined by what was contemplated by the parties sharing the purpose’. Therefore when two parties embark on a joint criminal enterprise one party will be liable for an act he contemplates may be carried out by the other party in the course of the enterprise even if he has not tacitly agreed to that act… and at page 21 There is therefore a strong line of authority that participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant to that enterprise”
No argument was, rightly addressed to us on the basis that the slightly different expressions used in the opinions in R v Rahman [2008] UKHL 45 made any difference to the principles so formulated on the facts of this appeal. There is therefore a strong line of authority that participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant to that enterprise”[23]In cases of spontaneous violence such as this, it was for the jury properly directed therefore to decide on the scope of the enterprise by determining what was foreseen or contemplated. As was made clear at paragraph 49 of the judgment of this court given by Mantell LJ in R v O’Flaherty (on which, as we have stated, the Recorder relied), the jury has to decide the question as to what the defendant had joined up to in such cases by considering the knowledge and actions of those involved. The jury would have to be sure before the defendant was convicted that the defendant had participated in the joint enterprise foreseeing that in the course of that joint enterprise the person who killed might use force with intent to kill or cause really serious bodily injury. In considering the scope, the jury have also to consider what is often referred to as the “fundamentally different rule”- namely whether the principal party went beyond that scope by doing an act fundamentally or radically different from what was foreseen as a real possibility. If the principal party went beyond the scope and acted in that way, then the defendant would not be liable.[24]We have not set out the direction the Recorder gave. It was not challenged. The jury were therefore entitled to conclude that the appellant had become party to an enterprise in which she foresaw or contemplated that one of those might kill with the intention of intention of inflicting really serious bodily injury and that the act of Ayres was not fundamentally different to what she foresaw or contemplated. (ii). Was the enterprise the appellant had joined still continuing and was the appellant still in it when the deceased was killed?[25]It is also clear that the appellant would only be liable if she continued to be a party to the joint enterprise at the time the deceased was killed. Her continued participation in what happened can be ascertained by the finding as to the scope of the enterprise she had joined (which we have already addressed) and by then finding whether the appellant had withdrawn from it.[26]As to the issue of whether the enterprise was still continuing and whether the appellant was still in it or had withdrawn, a series of decisions of this court sets out the correct approach: i) In R v Mitchell & King [1990] Crim LR 496, Otton LJ made clear that the jury had to consider whether at the time the death occurred the defendant was acting within a continuing enterprise. In considering whether a person had withdrawn, there must usually be some act and not merely a mere mental change of intention or physical change of place by the person contending he had withdrawn. In his commentary on the case, the late Professor Sir John Smith elegantly and correctly stated the principle:
“Secondary participation consists in assisting or encouraging the principal offender in the commission of the crime. A party who withdraws from an enterprise, spontaneous or not, usually ceases to assist but he does not necessarily cease to encourage. Suppose that A is encouraged in the fight because he knows B is in there with him. If B decides he has had enough and quietly slopes off without attracting A’s attention, the external element of secondary participation still continues. B’s encouragement of A is still operative. Does mere withdrawal then relieve B of responsibility? In principle, it seems that it should not do so. A person who has done an act which makes him potentially liable for a crime cannot relieve himself of responsibility by a mere change of mind. Once the arrow is in the air, it is no use wishing to have never let it go – “Please God, let it miss!”
The archer is guilty of homicide when the arrow gets the victim through the heart. The withdrawer, it is true, does not merely change his mind: he withdraws – but is that relevant if the withdrawal has no more effect on subsequent events than the archer’s repentance?” ii) This commentary was cited with approval by Otton LJ in R v Robinson (3 February 2000, transcript); he added:
“Thus the Professor emphasises that it can only be in exceptional circumstances that a person can withdraw from a crime he has initiated. Similarly in those rare circumstances communication of withdrawal must be given in order to give the principal offenders the opportunity to desist rather than complete the crime. This must be so even in situations of spontaneous violence unless it is not practicable or reasonable so to communicate as in the exceptional circumstances pertaining in Mitchell where the accused threw down his weapon and moved away before the final and fatal blows were inflicted.” iii) In R v O’Flaherty, Mantell made clear at 64- 65: “64. Accordingly, we consider, as this Court did in R v Mitchell and King (1988) 163 JP 75 that the jury should have been directed that they must be satisfied (a) that the fatal injuries were sustained when the joint enterprise was continuing and that the defendant was still acting within that joint enterprise, and (b) that the acts which caused the death were within the scope of the joint enterprise. As far as (b) is concerned, we have concluded that the jury were appropriately directed in respect of the use of knives. In respect of (a), however, since the jury was only directed to consider the evidence as to the cause of death and what part the particular defendants played if they decided they were dealing with two separated events, we have concluded that the jury was not appropriately directed. The distinction made in the directions between whether there was one event or two meant the jury was not directed that even if they concluded the incident was one continuing evolving event, they had to be satisfied that the fatal injuries were sustained when the joint enterprise was continuing and that the particular defendant was still acting within that joint enterprise. 65. It is not arguable that the learned judge should have withdrawn the case of O’Flaherty from the jury. The fact that he followed the group to Park Street West still armed with the cricket bat provided an evidential foundation for the jury to conclude, if properly directed that he was “still in it”.”
[27]In our judgment, the directions the Recorder gave were entirely in accordance with this line of authority. There was no error.[28]There was, as we have set out, evidence of spontaneous violence in which the appellant played a leading role. It was open to the jury to infer from that that the appellant foresaw within the scope of the enterprise that one of the others might kill with the intention of killing or causing really serious bodily injury and that the actions of Holmes, the killer, were not outside that scope. On the evidence it was also open to the jury to find that the enterprise which she had joined still continued, and the appellant was still in it and had not withdrawn. In our judgment, as the directions were correct, the jury were entitled to find the appellant guilty on the basis of participation in the joint enterprise. There was indeed ample evidence to find that she had played the leading role in starting the serious violence against the victims and by her continued presence had clearly not withdrawn from it.[29]The questions we have set out encompass within them the issue as to whether there was one enterprise or two. That issue is addressed by considering the scope of the enterprise and deciding whether that enterprise had come to an end by the time of the fatal attack (which was the approach of the court in Perman [1996] 1 Cr App R` 24 –see page 34) and whether the defendant was “still in it” (which was the approach of the Court taken in Flaherty – see paragraph 63). The Recorder’s directions which we have set out were in accordance with the authorities as we have summarised them. The fact that he posed the further question as to whether there was one incident or two made no difference. It was an additional question which on analysis was contained within the questions posed and putting it separately to the jury may well have assisted them in that analysis.

Observation on complexity

[30]Without doubt the Recorder gave clear and careful directions. As has been observed, the law in relation to joint enterprise in relation to murder has become immensely complex: see the observation of Lord Bingham in Rahman at paragraph 24. In approaching this appeal, we have tried to isolate what were the key issues in relation to the appellant and to see whether, at the close of the prosecution case and in his summing up, the Recorder was correct in the principles of law applied. As we have endeavoured to explain, the issues in law in relation to the appellant were, in our view, clear.[31]We have no doubt but that the Recorder considered, like very many other judges, that he was constrained by the accretion of authority to direct juries in the detail in which he directed them; the approach of the judge in Rahman was similar. The Law Commission has in its reports on Homicide (2006) and Participating in Crime (2007) set out proposals for reform of the law; this is currently being considered by Ministers. Pending any change which it is to be hoped would set out clear and simple principles easy for a jury to apply, we venture to suggest that consideration should be given giving directions in much simpler form and that the higher courts should approve a simpler approach. The concept of joint enterprise is in the ultimate analysis based on a concept that should in most cases be susceptible to explanation to a jury in short order without a judge being justifiably concerned that, unless the law is explained in detail the higher courts will overturn the verdict.

The further challenge to the conviction

[32]At the hearing of the appeal, counsel for the appellant sought to raise a further issue for which leave would be necessary. An application was made for an adjournment to enable this to be done. After listening to an outline of the submission, we declined to grant an adjournment, but as the issue was one of law, we gave the appellant time to consider whether she wished to pursue the application and then to formulate submissions. We directed that the application and all submissions in relation to it be made in writing. We were informed in early August 2008 that the application was not pursued.

Overall conclusion on the appeal against conviction

[33]Despite the very extensive arguments persuasively made to us on behalf of this young appellant, we consider that the ground of appeal fails. We have considered the overall safety of the conviction. We are satisfied that it is safe. The appeal against conviction must therefore be dismissed.[34]The appellant had been refused leave to appeal against sentence by the Single Judge. An application to renew was made by counsel on her behalf in writing in early August 2008. We therefore consider this application and the application made by the applicant Ballantyne together.[35]The Recorder in sentencing took into account: i) The unprovoked and unjustified nature of the attack. ii) The defendants had been drinking to excess; the appellant had drunk a vast amount and was pretty drunk and highly intoxicated. The applicant (Ballantyne) had been drinking heavily to celebrate his birthday. iii) The intensity of the violence and the fact that it was inflicted by a group. iv) The appellant had started the trouble and was determined to vent her anger on the victims; despite attempts to persuade her to desist, she repeatedly tried to strike the victims. The applicant Ballantyne had directly participated in the last part of the attack when ugly violence was used.[36]The Recorder took the correct statutory starting point of 15 years. He rightly concluded that this was not a case involving a significant degree of premeditation or pre-planning and that there was no intention to kill. He concluded that because weapons were used and because this was a group attack the starting point was 17 years.[37]In the case of the appellant and the applicant (Ballantyne), he took into account their young ages (the appellant 22 and the applicant (Ballantyne) 20), their previous good character (the applicant (Ballantyne) had a caution that was immaterial), the responsibilities they had to their families, the fact they had surrendered early to the police and they had been secondary parties.[38]It was submitted on behalf of the appellant that the starting point was too high and did not reflect the fact that she had not gone to the house on Buttershaw Lane and had no knowledge that weapons were to be obtained. The Recorder had failed to accord proper weight to those matters and her youth and the fact she was a single parent of a small boy.[39]It was submitted on behalf of the applicant (Ballantyne) that the Recorder had not sufficiently taken into account his youth and his good character and more significantly that he had not directly participated in the attack on the deceased.[40]We refuse both applications. The Recorder was correct in emphasising the serious nature of the unprovoked attack by a group in drink which resulted in death. These are seriously aggravating factors which justified the Recorder in taking 17 years as his starting point. He fully reflected the extent of the participation and the personal mitigation in the reduction he made to 13½ years.

Cited in 1 later judgment