Campbell & Ors, R v [2009] EWCA Crim 50

[2009] EWCA Crim 50Case No 200706357 B4, 200706337 B4 AND 200800094 B4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
THE COMMON SERJEANT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/02/2009
Before
LORD JUSTICE SCOTT BAKERMR JUSTICE BENNETTMR JUSTICE ANDREW SMITH
Between
ReginaRespondentAndré Campbell, Lloyd Rudolph James Henry and Jermaine YatemanAppellants
Mr I Glen Q.C and Mr M A Hakme for CampbellMr D Williams Q.C and Miss A Khan for HenryMr P Du Feu for YatemanMr J McGuinness Q.C and Mr C Foulkes for RespondentHearing Hearing date: 12 December 2008
Judgment
[1]André Campbell and Lloyd Rudolf James Henry appeal against their convictions for murder and manslaughter respectively by leave of the single judge. Jermaine Yateman renews his application for leave to appeal against sentence for murder after refusal by the single judge.[2]Campbell and Yateman were convicted unanimously of murder at the Central Criminal Court on 25 October 20007, following a trial presided over by the Common Serjeant. Henry was convicted of manslaughter by a majority of 10 to 2.[3]Campbell was sentenced to life imprisonment with a minimum to serve 15 years less time spent on remand. So too was Yateman. Henry was sentenced to a determinate term of 8 years detention in a young offender institution less the time he had spent on remand. Two co-defendants Yuri Campos and Philip Campbell were acquitted.[4]The victim who died was a 19 year old called Ian Page. In the early hours of 12 November 2006 he was involved in an argument on the Edgware Road. He was overwhelmed by a number of males who punched him and knocked him to the ground and, while he was on the ground, kicked him. He got up, but after an interval was knocked down again. He never regained consciousness and died four days later. Much of what occurred was captured on CCTV. The jury was shown this and this court has looked at it more than once during the hearing of the appeal.[5]The Crown’s case was that there was a minor altercation between the deceased and André Campbell. The deceased was willing to engage in a one to one fight but André Campbell was not and made his way to Alki’s kebab shop where he knew there were reinforcements in the shape of his brothers and a group of friends. The group then used their superiority in numbers to isolate and overcome the deceased. The prosecution case was that it was a group action – a joint enterprise – in which each participant intended that really serious harm would be caused to the deceased. André Campbell knew his friends were in the shop and knew they would act together to inflict really serious injury. He himself chased away the deceased’s friends and kicked the deceased to the head while he was motionless on the ground. Yateman punched the deceased in the face initially, chased the deceased’s friends away, kicked him on the head when he was on the ground and landed the last blow or blows. Henry was part of the original isolating group chasing off the deceased’s friends and kicked the deceased while he was on the ground.[6]The defence cases in summary were as follows. André Campbell had been in fear of the deceased after the initial altercation and returned to Alki’s kebab shop for safety. He only spoke to his brother and did not ask anyone else to get involved. He engaged in pushing and shoving in self defence. He also helped his brother to try and chase off an attacker. He did not kick the deceased. He was not aware of a further assault on the deceased by Yateman and was not a party to it. It was this assault that caused the deceased’s death.[7]Jermaine Yateman was in the kebab shop when Campbell came in. He only went outside to look and struck out in self defence. He chased off two people who were threatening him. He did not kick the deceased but he did try to rob him. The deceased hit out and he responded by punching him back, but the damage had by then been done. He never intended to cause serious injury. Yateman, as we have mentioned, seeks to appeal against sentence only.[8]Lloyd Henry went outside because of concern for his brother. He denied attacking the deceased. He had been punched by one of the deceased’s friends and chased them off. He kicked the deceased on the ground as he passed back across the street because he was angry. He knew nothing of Yateman’s plans to rob the deceased or further assault him and was not involved in either event. It was the latter assault that caused the deceased’s death.[9]Broadly, the CCTV evidence establishes that the deceased was being assaulted by punches and kicks by a group that included both appellants and that he was then, after an interval, further assaulted, across the road, by Yateman.[10]It was submitted on behalf of both appellants at the close of the prosecution case that the offence of murder, and with it the lesser offence of manslaughter, should be withdrawn from the jury. This was rejected by the judge. It was submitted by both appellants in their grounds of appeal that the judge was wrong not to have withdrawn the case from the jury. Mr Glen Q.C, who appeared before us for Campbell, in the course of his submissions to us decided not to pursue this ground. However, Mr Williams Q.C, for Henry, continued to maintain it. Nevertheless, the main focus of the appeal before us has been on the basis that the convictions of Campbell for murder and Henry for manslaughter were unsafe. Both appellants submit that causation of death is not established because there was no evidence that the deceased’s death was caused in the course of an assault in which they participated either directly or by way of joint enterprise. More particularly, they contend that there were two separate incidents and that they only participated in the first and that the act or acts that caused the death arose in the second incident and not the first.[11]The Crown’s submission in summary is that the victim was attacked by the appellants and others in a joint enterprise during the course of which they committed acts of assault which caused or contributed to his death. Subject to proof of the relevant intent they were guilty either of murder or of manslaughter.[12]Alternatively, if the jury were not sure that those acts of assault caused or contributed to the deceased death (because the later assault by Yateman was the sole cause of death) then the joint enterprise was still continuing and the appellants by their presence, encouragement and willingness to assist were still parties to it and subject to intent, liable to be convicted of unlawful killing.[13]If either appellant is to succeed on the appeal he must show both that there were two separate incidents, he only participating in the first, and that the act or acts that caused the death arose in the second and not the first. If the jury was properly directed and entitled to conclude either that acts causative of the death occurred on the first incident or that that each appellant was a party to a joint enterprise that continued to the second incident in which only Yateman was directly involved the appeals must fail.[14]So, the real issues are: i) Was there evidence that the death of Ian Page was caused at a time when the appellants were participating in a joint enterprise before Yateman crossed the road and, ii) Was there evidence that the joint enterprise to cause Ian Page really serious harm in which the two appellants participated (and which the jury by their verdicts must have found proved) was still continuing when Yateman crossed the road and knocked Page to the ground.[15]Hedley J, when granting leave to appeal against conviction, said he did so on two broad grounds. First, there were two separate incidents involving the deceased and that Campbell and Henry only participated in and/or were responsible for the consequences of the first of those, and second that the evidence did not establish that the fatal injury was sustained in the first incident. He went on:
“In my view these applicants should be allowed to argue that there was a separate and distinct second incident in which Jermaine Yateman acted entirely on his own, in pursuance of robbery, and alone inflicted the fatal injury on the deceased. It is of course a matter of impression but it is arguable that on careful examination of the DVD that: i) a case of murder/manslaughter should not have been left to the jury in respect of these applicants; and/or ii) the convictions for homicide are unsafe” i) a case of murder/manslaughter should not have been left to the jury in respect of these applicants; and/or ii) the convictions for homicide are unsafe”
[16]It is true that the DVD made from the CCTV recording governing a bus lane shows a distinct second incident involving Yateman on his own, and that there is a gap of almost two minutes between the apparent end of the first incident and the start of the second. Accordingly we direct ourselves to the two main issues on the appeals. First causation i.e. whether there was evidence in the case of each appellant that he was responsible for an event that caused the deceased’s death, and whether the jury was correctly directed about it. The appellants’ contention was that they were not parties to the second incident which caused the death. The second issue is joint enterprise and whether the jury was properly directed about it. In short were the jury entitled to conclude that the Crown’s case was made out on causation and joint enterprise?[17]The appellants’ submission depends on the dual contention that the jury could only have concluded that: i) there were two separate incidents and the appellants only participated in the first and ii) the act or acts that caused the death were sustained in the second incident and not the first. Joint enterprise.[18]Mr Glen Q.C for Campbell puts his argument as follows. Yateman may well have caused the death of the deceased by punching him in the course of an attempt to rob him of his gold bracelet. This was a separate crime which Yateman committed alone. The joint enterprise, to which Campbell was a party, related to the first attack only and was spent by the time of Yateman’s assault, which was of a different nature and involved attempted robbery in which Campbell did not participate as is shown by the CCTV.[19]The relevant principles about cessation in a joint enterprise are to be found in R v O’Flaherty and Others [2004] 2 Cr App R 20. In that case the Court of Appeal quashed the conviction on the basis that the submission of no case to answer should have succeeded. The appellants were involved in a joint attack on the deceased. They had ceased to be involved by the time that the attack continued in a neighbouring street. The jury should have been directed that to convict the appellant they would have to be sure that the joint enterprise in which he was involved was still continuing and that he was still a party to it with the necessary intent when the fatal injuries were caused.[20]Mr Glen submits that the judge’s directions were erroneous in law because he did not follow the guidance of this court in O’Flaherty. It is to be noted that O’Flaherty was an appeal from the same judge as in the present case and there is no doubt that he was well familiar with the principles of joint enterprise. Mantell L.J, in giving the judgment of the court in O’Flaherty, had this to say at para 58 about ‘withdrawal’:
“While, as we suggest later in this judgment, a strict view of what will in fact constitute withdrawal can properly be taken, the preclusion of withdrawal in any circumstances cannot in our view be correct, either in principle or as a matter of policy. A person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime by the principal, here murder, should not be liable for that crime, although his acts before withdrawing may render him liable for other offences.”
He continued at para 60:
“We have noted that for there to be withdrawal, mere repentance does not suffice. To disengage from an incident the person must do enough to demonstrate that he or she is withdrawing from the joint enterprise. This is ultimately a question of fact and degree for the jury. Account will be taken inter alia of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal. In cases of assistance it has sometimes been suggested that, for there to be an effective withdrawal, reasonable steps must have been taken to prevent the crime. It is clear, however, that this is not necessary.”
And then at para 63:
“…..a defendant who effectively disengages or withdraws before the fatal injury is or injuries are inflicted is not guilty of murder because he was not a party to and did not participate in any unlawful violence which caused the fatal injury or injuries. We consider that the question whether or not the violence formed one evolving incident or was two separate and discreet incidents is only relevant in helping to decide whether a particular defendant disengaged before the fatal injury or injuries were caused or joined in after they had been caused. Another way of looking at the matter is that suggested in R v Perman [1996] I Cr App R 24, i.e. that the issue of disengagement or withdrawal may be no more than a consideration of the scope of the joint enterprise. In the absence of such disengagement or withdrawal, however, it is sufficient for there to be a conviction for murder for the prosecution to prove that the defendant participated in unlawful violence which caused injury or injuries which formed a significant cause of death provided that the cause or causes of death cumulatively assessed arose out of a single evolving incident and that defendant had the necessary intention or foresight. Accordingly, we consider, as this court did in R v Mitchell and King (1998) 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 were 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.”
[21]Mr Glen submits that there is an important distinction between the present case and O’Flaherty which assists him, namely that the further attack by Yateman involved the separate offence of attempted robbery.[22]We were also referred to the helpful observations of Thomas L.J in R V Mitchell and Ballantyne [2008] EWCA Crim 2552 at para 23 where he said:
“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 L.J 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 cause 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 “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.”
[23]Mr McGuinness Q.C, for the Crown, points out that it was for the jury to decide whether the appellants’ involvement had ended. At Vol 2 p36E the judge directed the jury on withdrawal or disengagement, referring as he did so to his written directions in these terms:
“If you conclude, however, that it was, or may have been the case the defendant whose case you are considering had clearly withdrawn or disengaged before the injuries that were a significant cause of death were caused, then that defendant is not guilty of murder and not guilty of manslaughter because it follows that you are not satisfied that the fatal injuries were caused when that defendant was still acting within the joint enterprise. The two critical issues are: “i) Was the defendant whose case you are considering a party to a joint enterprise, to a joint plan, to cause (the deceased) really serious bodily harm?” ii) Was that particular defendant a party to a plan at the time the fatal injuries were caused to (the deceased)?”
The relevant law was further explained at the end of the summing up after further submissions. At paragraph 9 of the written directions the jury had been told that it was for them to decide if there was a separate use of fists “in the incident over the road”, and if so whether that went beyond any “pre-existing purpose”. Reverting to this at the end of his summing up

the judge said this:

“Was the use of fists in the course of an attempted robbery at that stage so different to the common purpose in the case of the defendant that you are considering so as to go beyond the scope of any pre-existing common purpose, and was it a substantial cause of death. This is an area of dispute between some of the defence cases and the prosecution case.”
The significant addition was the words “in the course of an attempted robbery.” In our view this was a necessary and appropriate amendment because it left open to the jury the question whether Yateman’s purpose of intending to rob the deceased was sufficient to bring an end to the common purpose of the joint enterprise of those in the group.

The two critical issues are:

[24]Mr McGuinness poses the question: what evidence is there of withdrawal? He points out that both appellants were still on the street and still in the view of Yateman when his assault was taking place. What Yateman did across the road was not, he submits, fundamentally different from what had gone before. There is no evidence the appellants moved off or retreated and, he submits, some positive act was required to set up withdrawal. The jury was, he submits, fully entitled to conclude that the appellants were still parties to a joint enterprise that continued through the activities of Yateman across the road. However, it was perfectly possible they concluded the damage inflicted in the earlier events contributed significantly to the deceased’s death.[25]Henry was, of course, convicted of manslaughter rather than murder. Mr Williams Q.C, on his behalf, points out that his involvement appears to have lasted no more than about 25 seconds and that at no stage can he be seen to be involved in the final incident. If the deceased may have been someone who would have survived but for the Yateman attack he is guilty not of manslaughter but only assault. He first admitted kicking the deceased when he gave evidence and he was the only one of the three who admitted kicking him. The CCTV footage shows significant involvement on his part. There is no new or separate point in his case, the only distinction from Campbell was in his mental element. Cause of death[26]At para 11 of the directions document

the judge said:

“You have heard reference to causation and whether or not you conclude there has been ‘a break in the chain of causation’. That is a decision of fact for you. The law is that acts of the accused, or the acts of the group where the allegation is one of joint enterprise, is enough if it or they contributed significantly to the death. It need not be the sole or principal cause of the death.”

The judge recited this to the jury at Vol 1 30G and continued with para 12:

“The prosecution do not have to prove who the actual perpetrator or perpetrators are of a fatal or the fatal blow or blows if indeed there was one or however many. So long as the prosecution make you sure that the use of the fists or feet, and/or encouragement with the necessary intent was foreseen by other participants in the attacks, then each identified principal would be guilty of murder.”
That is a correct statement of the law. This was not a case where the evidence established with clarity that this or that blow or injury was the cause of death.[27]The judge returned to his direction a little later at 33F referring to paragraph 14 of his directions document. He posed the questions: what is meant by fatal injuries and when or where were those fatal injuries caused? He answered them: fatal injuries are any injury sustained by (the deceased) that were a significant cause of his death, adding that they did not have to be the only injuries that caused his death; it was enough that they contributed to his death. When or where the fatal injuries were caused was a matter for the jury to decide on the evidence as they saw it.[28]The relevant evidence came from two witnesses: Dr Shorrock, the pathologist who carried out the post-mortem and Dr Al-Saraj, a consultant neuropathologist, who carried out a microscopic examination of the brain. Summing up the material part of Dr Shorrock’s evidence at Vol 3 p101D he said:
“He said that Ian died as a result of a severe head injury. This was consistent with two separate falls and was also consistent, quite probably, with kicks and/or punches. He said that there was widespread damage within the brain but unable to say when during the incident the brain injury occurred. He had a strong feeling that it was not from any one blow but the additive effect of most, if not all, of the separate injuries. He felt that the injuries to the head were caused by separate blows. He said that there were no marks on the majority of the injuries to indicate whether they were from kicks or punches, but he felt the left side fracture of the skull was likely to be from one of the falls. He was shown the CCTV and he felt that after the first fall there was likely to have been concussion at the very least and he would have suffered what he described as “a degree of injury”
. Then, the second time he fell and he did not get up from that. The doctor said by the time of the second fall, (the deceased) would have been dazed and in less control. There was likely, then, to be this movement of the head to and fro of the brain, inside the head, to and fro and there would be further injury as once this process had started further blows add to the severity of the injury.” And at 104B:
“He agreed that it was more probable than not that the left fracture occurred on the second fall. He said he felt that this was all part of a continuing chain of events: that there would be some injury and brain damage from the first incident from which he could have survived, and then another injury where he fractured his skull, which means he would not survive. He felt that the first fall and injury would impair his ability to stay on his feet and so if he was attacked later he was more likely to fall again. Then, finally, to the question really from me, he said: “We are not in a separated scenario here. We are in a accumulative scenario.””
[29]In summing up the evidence of Dr Al-Saraj the judge referred to his evidence that this was a middle severity or grade 2 injury from which about 50 or 60 per cent of the victims would die and the remainder be likely to be left with a severe disability. He described the injury as caused by forward, backward and angular acceleration typical of road traffic accidents and severe fights. The most likely cause of death was the cumulative effect of hits to the brain. It was not so much a question of impact, but how the brain moved within the skull. He said head injuries were very complex and the severity was not necessarily reflected by the damage, because it depends on the acceleration and deceleration. The judge reminded the jury at 107C that Dr Al-Saraj could not isolate the injuries and could not be certain about the cause and effect. Despite originally favouring a conclusion that the deceased died as a result of having been kicked while on the ground, he thought that this was overall a case of cumulative effect.[30]There was thus little, if any, difference between the experts as to the cause of death. The judge made it perfectly clear at Vol 3 98H that it was a matter for the jury whether they accepted the opinion evidence of the experts.[31]It was an important plank in the appeals of Campbell and Henry that the deceased’s death was not caused by any assault on their part but by the separate and subsequent assault by Yateman on the other side of the road for which they were not responsible. In our judgment the jury was fully entitled from the evidence they had heard to conclude that the actions of Campbell and Henry in the earlier incident were a significant cause of death and that causation was therefore established.[32]There was evidence of causation at the end of the prosecution case and the judge summed up the issue of causation appropriately to the jury. Novus actus[33]There is a further point requires brief mention. We were referred to R v Rafferty [2007] EWCA Crim 1846 which was a case where death was caused by new and intervening event in a chain of events. It was submitted by the appellants that on a similar basis the Yateman attempted robbery was such an event. We cannot accept that this case fell into the Rafferty category. The act or acts of Yateman, if they alone caused the death were not of such a fundamentally different nature from what had gone before that they amounted to a new and intervening act in the chain of events. Conclusion on the conviction appeals.[34]We are satisfied that the convictions of Campbell and Henry are safe. The judge was right to reject the submission that there was no case to go to the jury. There was evidence on which the jury was entitled to conclude that causation was established from the injuries inflicted before Yateman crossed the road, and further that each was a party to a joint enterprise that extended to Yateman’s actions on the other side of the road. The judge’s written directions and his summing up to the jury were adequate for the purposes of the case. Yateman’s renewed sentence application.[35]Yateman renews his application for leave to appeal against the minimum period to serve of 15 years in respect of his life sentence. Mr Du Feu, who has appeared for him, submits that in balancing the aggravating and mitigating factors the judge gave insufficient weight to the mitigating factors. He submits that while the judge took the correct starting point of 15 years, the final figure of 15 years was too long.[36]It could be said that Yateman was fortunate that the judge took a starting point of 15 years because there were features of the case that suggested the higher starting point of 30 years. Mr Du Feu points out that the attack was unpremeditated and that there was no intent to kill. Further, Yateman’s age (18 years 4½ months at the time) was such that he was within 5 months of a starting point of just 12 years. On the other hand, this was a group assault in a public place and involved robbery on this appellant’s part. He had previous convictions for violence, including robbery. He struck a blow having come out of the kebab shop, continued as part of the group, kicked the deceased while in the carriageway and then attacked him again knocking him to the ground and leaving him motionless on the road. The judge rightly described what he had seen as chilling and stark. Having presided over the trial and having seen the CCTV footage he was well placed to assess the extent of Yateman’s culpability. Far from being manifestly excessive we think a minimum term of 15 years less time spent on remand was appropriate and the renewed application for leave to appeal against sentence is refused.