Nedrick -Smith v Director of Public Prosecutions [2006] EWHC 3015 (Admin)

Case No CO/7507/2006[2006] EWHC 3015 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 15th November 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE WALLER
MR JUSTICE LLOYD JONES
Between
JENE CHARMAGNE NEDRICK -SMITHAppellant-v -
Between
DIRECTOR OF PUBLIC PROSECUTIONSRespondent
(Computer -Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MRS LISA HENNESSY (instructed by Geoffrey T Smith & Co, Wolverhampton WV1 4BN) appeared for AppellantMR DAVID SWINNERTON (instructed by Crown Prosecution Service, West Midlands, Criminal Justice Unit, St George's House, Lever Street, Wolverhampton WV2 1EZ) appeared for Respondent
J U D G M E N T

LORD JUSTICE WALLER:

[1]The appellant appeals against the decision of the Wolverhampton Magistrates of 13th June 2006. They convicted her of an offence of assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. It is common ground that Heather Lewis was assaulted on 6th November 2005 when she was attacked in her home. It is further common ground that during the incident blows were struck by three women, and that no blows were struck by the appellant. The question for the magistrates was whether the appellant was a party to the attack, a party to a joint enterprise. The magistrates have stated a case and they have put the question in this way:
"Can a defendant be criminally liable for an offence of assault if she neither enters the premises in which the assault takes place nor strikes any blow nor provides any active encouragement while the offence takes place?"
[2]The facts can be taken from the statement of case. Miss Jene Nedrick -Smith was the driver of a motor car which took Zoe McLean, Alicia Smith and Shelisha McLean to the home of the victim, Miss Heather Lewis.[3]Zoe McLean had phoned her cousin Alicia at her home to ask her to sort out a lift for her to go to Heather Lewis' house. Alicia was at home with Shelisha McLean, Zoe's sister, at the time of the phone call. There had been an incident between Zoe McLean and Heather Lewis at the shops the previous week regarding her involvement with Curtis Carter and her pregnancy. Alicia phoned the appellant to ask her to give Shelisha and Zoe a lift.[4]There is ill will between Heather and Zoe because of their respective relationships with Curtis Carter. He is the father of Heather's 2 -year -old son. Zoe was carrying his unborn child at the time of the offence.[5]Zoe, Shelisha and Alicia had visited Heather's home on two previous occasions to sort things out.[6]The appellant went to Alicia's house and collected Alicia and Shelisha. Zoe was not picked up in the Cannock Road by chance. The appellant was aware of friction between Zoe and Heather, and that there had been an incident the week before as it was discussed in the car. The appellant asked for directions to Heather's house and drove the other three girls there.[7]On arrival at the house, the appellant initially remained in her car. She watched Zoe approach the house and attack Heather at the doorstep. Alicia and then Shelisha went to the house to join in. The appellant was the last person to approach the house. She stood at the doorway and watched the attack taking place within the house. She did nothing to break up the fight or leave the scene.[8]The appellant and the other three girls drove away together. They returned shortly afterwards as Alicia had lost an earring in the fight. They returned for a second time as Zoe had been phoned by Curtis Carter who had gone to Heather's.[9]In the light of their findings of fact, the magistrates expressed the following opinion which itself contains some findings of fact, but in part is an expression of principles of law. They say this:
"(a) Applying the general principles of joint enterprise we found each defendant to have played a different role but that taking their conduct together they were jointly responsible for causing actual bodily harm to Heather Lewis. (b) Zoe McLean was the principal assailant. Alicia Smith and Shelisha McLean assisted Zoe in causing the actual bodily harm to Heather Lewis. (c) The appellant ... was party to the agreement to go to the victim's house to sort things out following the confrontation between Zoe and Heather the week before. She participated in the offence by voluntarily providing the transport to take herself and her co -accused to Heather Lewis' home knowing there had been problems the week before and therefore foresaw the probable consequences of the meeting and that violence was likely to occur. (d) The appellant witnessed the assault from the doorway of the house and remained until it was over. She at no time withdrew from the scene nor did she attempt to break up the fight. (e) The appellant left the address with her co -accused, in her car, only to return a short time later when one of her co -accused discovered she had lost an earring. She again drove away with her co -accused only to return again at Zoe's request following a phone call from Curtis Carter. The appellant facilitated the offence by providing the means of transport to and from the scene of the crime."
[10]No authorities were cited to the magistrates, but the clerk directed them on the law as to joint enterprise. We have been supplied with a copy of the standard direction which clerks use for the purpose. There is no indication in the opinion expressed by the magistrates that they were in any way misapplying the law on joint enterprise.[11]Mrs Hennessy has really been driven to accept that the answers to the question identified in paragraph 1 above must literally be "yes" to each aspect: that is to say that a defendant can be criminally liable for an offence of assault if she does not enter the premises, and she can be criminally liable if she does not strike a blow, and she can be criminally liable if she does not provide any active encouragement. Mrs Hennessy's submission has really to be that there was no evidence on which the magistrates in the light of their findings of fact could find as they did, in particular in paragraph 7(c), that the appellant was party to an agreement to go to the victim's house and that in taking part in the enterprise to which she was a party, she foresaw the probable consequences that violence was likely to occur.[12]It is clear on the findings of fact that the appellant was a party to an agreement to go to the house of the victim to sort things out. She was furthermore aware of an incident the previous week, true unspecified in terms of the extent to which, if at all, violence had taken place. But even pausing there, in my view there would be evidence from which the magistrates would be entitled to take the view that an incident of violence was to be the subject of the joint venture on which these four girls were engaged or, putting it another way, that it was reasonably foreseeable that violence was likely to occur flowing from the venture on which the four girls were engaged. But the matter seems to me to be put beyond doubt by the magistrates' findings of fact of what happened when the girls got to the house. That finding of the magistrates was that the appellant saw one girl, Zoe, approach the house and attack Heather at the doorstep, i.e. she saw violence being committed by Zoe. The finding is also that Alicia and then Shelisha went to the house to join in. That would again indicate violence being committed in the full view of the appellant.[13]Far from withdrawing from the scene, driving away, or even for that matter remaining in her car and seeking to indicate that she wanted nothing to do with the violence that was taking place, the appellant got out of the car and went up to the doorstep, following the other girls. She then watched the incident which was taking place within the house occurring, and did nothing to break up the fight. True, she did nothing more to give active encouragement, but in my view the magistrates were entitled to find that the appellant was party to a joint enterprise to sort out Heather Lewis; that it was foreseeable that the sorting out would involve violence to Heather Lewis; and indeed that she did not withdraw once she was actually aware that violence was involved. I would thus answer the questions as already indicated "yes", and would further find that the magistrates were entitled to take the view that they did.[14]I should just perhaps add that Mr Swinnerton in his skeleton argument has sought to uphold the conviction on a slightly different but related basis. He has submitted that on the findings of the magistrates the appellant was clearly at the very least an accessory who aided and abetted the commission of the offence. He relies on R v Bryce [2004] 2 Cr App R 592, and in particular he relies on certain passages in the judgment of the court given by Potter LJ. The passages relied on show that there is a great deal in common between the principles applicable in joint enterprise cases and in cases involving aiding and abetting. Each are concerned, of course, with whether a secondary party should be liable for the action of a principal party. In this case in fact the appellant was not charged with aiding and abetting, she was charged as a principal. Strictly it may well be that the magistrates even those circumstances could have convicted her as an aider and abetter, but it certainly would have been better to make the charge clear if that is the basis on which the case was going to be run.[15]But the truth is that it matters not whether she was charged as an aider and abetter or as being party to a joint enterprise. The findings are that she was a party to driving a car to the premises of the victim with the object of sorting things out. She knew of the incident the week before. She foresaw that violence might take place and she aided the possible attack by driving the other girls there. Far from withdrawing when she saw that violence was taking place, she came up to the house and watched them, doing nothing to stop the violence. Those facts support both a finding that she was an aider and abetter and that she was a party to a joint enterprise. The magistrates convicted her as being guilty upon the basis of being party to a joint enterprise. In my view they were right to do and this appeal must be dismissed.

MR JUSTICE LLOYD JONES: I agree. ______________________________