(As approved by Judge)
LORD JUSTICE ROSKILL: There are before the Court two applications for leave to appeal against conviction for murder at Swansea Crown Court on 4th November last year after a long trial before Mr. Justice Mars Jones and a jury. The two applicants, both young men, named Cooper and Becerra, were indicted on an indictment which contained a number of counts, that large number being necessary to cover the enormity of the offences with which they were charged. A third man was charged with them. He was not however charged with murder. He was sentenced for his part in the less serious crimes of which these two men were also guilty, and nothing now turns upon his part.
There were four counts, which are relevant to the present applications. The first which concerns these applicants alone is one of murder, the victim being a man called Lewis. The second was of causing grievous bodily harm with intent to 81-year old lady called Mrs. Francis. The third was of aggravated burglary and the fourth was of burglary. On the convictions other than the conviction for murder, the learned Judge passed sentences of five years imprisonment concurrent on that count relating to the attack on Mrs. Francis, seven years imprisonment concurrent for the aggravated burglary and three years imprisonment concurrent for the burglary. I should mention that Cooper pleaded guilty to that last count early in the trial, but was convicted by the jury on the first three counts. Becerra changed his plea on that last count on 24th November, after being put in charge of the jury, and subsequently, like Cooper, was convicted on the first three counts.
The facts are horrifying, for they reveal acts of brutality almost unequalled even in this day and age. On 13th June 1974, in the early hours of the morning, these applicants and the third man entered this old lady's house at 8 Gore Terrace, Swansea, intending to steal some money that they had been told, as a result of a conversation in a public house, she kept in a drawer in her kitchen. It was said - whether truthfully or not does not matter - she might have as much as £4,000 there.
When they entered this house through the old lady's bedroom window, the applicant Becerra was carrying a clasp knife which had, according to undisputed evidence, a handle 4½ inches long and a blade 3½ inches long; and once that knife blade was opened, it remained rigid until a lever on the handle was released. The evidence was beyond question that Cooper knew that Becerra had that knife, and indeed Cooper borrowed it to cut the telephone wires leading to the house.
It is not necessary to go through the details, but some of the story must be related. Cooper climbed in through the window. The old lady began to switch her bedside light on and off. Cooper went over to her. He punched her, knelt and jumped on her, and covered her head with a pillow. Becerra and the third man followed Cooper. On Cooper's instructions the third man, somewhat reluctantly, took over the holding of the pillow over the old lady's face and Becerra cut the wires of the telephone by the side of the bed with the knife I have already mentioned.
Cooper then took Becerra's knife in his left hand and went out into the hall, going towards the kitchen. Why he took that knife and why he was given that knife was a matter of acute controversy at the trial. Mr. Lewis, who was the occupier of a first floor flat in the house came downstairs, obviously having been aroused by what he heard was going on. Becerra and the third man heard him, climbed out of the window and ran away. Cooper tried the back door, but it was locked and so he turned back and was confronted by Lewis. There was a struggle in which beyond question Lewis was stabbed four times on the left hand side of his body and one of the stab wounds was 3½ inches deep and penetrated the right ventricle of his heart and he died. Cooper then made his escape through the window leaving the knife behind.
Only by the mercy of providence was the old lady - not killed by the brutal treatment which she received. But she was greatly shocked and an innocent tenant of this house lost his life. Mrs. Francis herself was in such a state of shock that she was unable to speak and the medical evidence showed she had bruising on her chest and face. Mercifully there was no damage to her central nervous system.
The basic prosecution case against Becerra and Cooper was that they had entered into a common agreement to use such force as was necessary against anyone in the house to get the money or to avoid identification or arrest. It was urged that this common agreement included the use, if necessary, of the knife to inflict serious bodily injury, if not death, and it was alleged that Cooper, in furtherance of that common agreement, murdered Lewis with the knife in his left hand while he pinioned Lewis from behind with his right arm around Lewis's shoulder.
It is now necessary to say a word about how the knife came into Cooper's hand. It is beyond question that Cooper murdered Lewis. Some time afterwards, on 19th June, Becerra was involved in a motor accident; that is six days after the murder. He was taken to hospital in the early hours of the morning. Some eighteen hours later, just after 8.10 in the evening of 19th June, with the full consent of the experienced physician, who had charge of his case, the police interviewed him. Becerra then told the police that Cooper had said to him, just before Lewis was murdered and just before Becerra and the third man got out, "Give me the knife in case somebody jumps me". That obviously meant, if it was said, "Give me the knife in case anybody "comes who could identify me". This was emphatically denied by Cooper and by Becerra. Cooper said the knife had been handed to him in order to enable him, Cooper, to open the drawer. Becerra said the knife had been handed to Cooper to enable Cooper to open the bedroom door. So there was this straight issue of fact to be determined by the jury, whether or not those words had been used, and if so, what did they mean.
The learned Judge in a very full, clear and careful summing-up, stated the law regarding common design at the bottom of page 205 and the top of page 206 of the transcript. He dealt with the case of Cooper and he then went on to deal with the case of Becerra:
"The case against Becerra is based upon the proposition that he and Cooper were acting together in pursuance of a common agreement - namely to kill or to inflict really serious injury, if the need should arise to avoid detection or arrest; to make good their escape, if they were detected while in the house, without being seen. Now when, Members of the Jury, two or more people make such an agreement, one may play an active role whereas the other may play a passive role: merely of lending support by his presence, or keeping a look-out, or the like. But once an agreement of that kind is made, the act of one becomes the act of the other, if that act is done in pursuit of a common design. Although it was Cooper who wielded the knife, Becerra is equally responsible for the consequence of Cooper's actions if he supplied the knife for the purpose of causing death or really serious injury - not necessarily in any event, but if it became necessary to do so to avoid identification or apprehension."
I will pause there for one moment. Leaving aside for the moment what one might call the original common design, the crucial question which the jury had to decide was, what was the purpose of Becerra passing that knife to Cooper immediately before Lewis met his death at the hands of Cooper; and also, in connection with that issue, to make up their minds whether they accepted as true the police evidence of what Becerra had said to them at the hospital. The learned Judge reminded the jury that Becerra had suffered from concussion as a result of his motor accident and that that was something to be taken into account both in considering whether Becerra said what was alleged, and whether, if he did, that which he said was in fact true. No court could find fault with the Judge's direction to the jury on that point.
It cannot be gainsaid that the language in question (if used) was capable of giving rise to the clear inference that the common purpose underlying the passing of that deadly knife from the hand of Becerra to the hand of Cooper was so that if the necessity arose, the knife could be used for the purpose of inflicting serious injury, though not necessarily death, for the purpose of avoiding identification and subsequent arrest and punishment. Mr. Owen in his argument in this Court did not seek to say that those words were not capable of bearing that meaning. But he forcefully urged upon us, and this was his first argument on behalf of Becerra, that those words used in those circumstances were too slight a foundation on which the jury could base a conclusion of common intent such as I have mentioned, and that therefore any verdict of murder against the applicant founded upon that evidence was unsafe and unsatisfactory.
With great respect to that argument, we think it is unsound. This was essentially a question for the jury. The well established principles of law, which needed no more elaborate direction than the Judge gave in the clearest possible terms, are beyond all question. The only question, and it was one for the jury, was whether or not that statement had been made, and if made, bore the meaning which the Crown alleged it did.
If the jury were convinced that it was made and did bear that meaning, then, in the view of each member of this Court, the jury were entitled to reach the conclusion that there was the common design I have mentioned and accordingly convict Becerra along with Cooper of the murder of Lewis, even though it was not Becerra's hand that struck the fatal blow. Accordingly, the first ground upon which this application for leave to appeal is based, fails.
The second ground of appeal requires more elaborate treatment. It was argued in the alternative on behalf of Becerra, that even if there were this common design, in other words even if the point I have just dealt with were decided adversely to Becerra, nonetheless Becerra had open to him a second line of defence, namely that - I hope I do Mr. Owen's argument on the second ground no injustice if I put it this way — whatever Cooper did immediately before and at the time of the killing of Lewis, Becerra had by then withdrawn from that common design and so should not be convicted of the murder of Lewis, even though the common design had previously been that which I have stated.
The learned Judge dealt with this point on pages 206 and 207 as follows: "The Prosecution say that is the only inference which can properly be drawn from the defendant Becerra's statement to the police and his actions that night. Mr. Glanville-Jones, in his final speech, submitted that even if you found that Becerra had agreed that Cooper should use his knife to inflict "really serious injury if he were set upon by someone trying to apprehend him, you should take the view that he had repented of his decision and communicated that decision to Copper when he said, 'There's a bloke coming, let's go.' It is right to say, Members of the Jury, that Becerra never mentioned to the police that he used the expression 'Let's go'. It is also right to mention that neither Cooper nor Gwilliam appear to have heard him say, 'Let's go'. But even if he did, what did those words amount to? Putting it at its highest in favour of Becerra, it means that he was asking Cooper to abandon the burglarious venture and leave the house with him. Now, it is right that a man can withdraw from a criminal conspiracy or agreement, like any other agreement, and if he does so he can escape liability for acts done in pursuance of the conspiracy after he has withdrawn from it, but he must give clear warning to his partner or partners that he is doing so ...". Pausing there, I did not understand Mr. Owen criticise this passage so far as I have read.
The learned Judge went on:
".. and at least take all reasonable steps to prevent the commission of the crime which he had agreed the others should commit. Applying that principle to the facts of this case, the sort of action which might release Becerra of responsibility would be an attempt to recover the knife from Cooper or giving the unfortunate Frederick Lewis a warning that there was a man at the bottom of the stairs armed with a knife, or possibly interposing his own body between that of Lewis and that of Cooper. But Becerra did none of those things. He who puts a knife which is capable of inflicting fatal injury into the hands of another for use as a weapon to kill or cause really serious injury if the need arises, cannot escape liability
"when that need arises by merely using such words as, 'Come on, let's go', and fleeing the scene. You may think that the situation here was that Cooper feared he had little chance of escaping certainly without an opportunity for Frederick Lewis, and possibly Mrs. Francis, to see what he looked like unless he used that knife. It was Becerra who gave him that knife which enabled him to do what he did to Frederick Lewis. So much for the law."
Mr. Owen says that in that passage which I have just read, the learned Judge in effect, though perhaps not in so many words, withdrew the defence of "withdrawal" from the jury, because the learned Judge was saying to the jury that the only evidence of Becerra's suggested "withdrawal" was the remark, if it were made, "Come on let's go", coupled with the fact of course that Becerra then went out through the window and ran away and that that could not in those circumstances amount to "withdrawal" and therefore was not available as a defence, even if they decided the issue of common design against Becerra. It is upon that passage in the summing-up that Mr. Owen has principally focussed his criticism.
It is necessary, before dealing with that argument in more detail, to say a word or two about the relevant law. It is a curious fact, considering the number of times in which this point arises where two or more people are charged with criminal offences, particularly murder or manslaughter, how relatively little authority there is in this country upon the point. But the principle is undoubtedly of long standing.
Perhaps it is best first stated in The Queen v. Saunders and Archer 2 Plowden 473 (in the eighteenth year of the first Queen Elizabeth, 1577) at pages 476 and 477, in a note by Plowden, thus:
".. for if I command one to kill J.S. and before the fact done I go to him and tell him that I have repented, and expressly charge him not to kill J.S. and he afterwards kills him, there I shall not be accessory to this murder, because I have countermanded my first command, which in all reason shall discharge me, for the malicious mind of the accessory ought to continue to do ill until the time of the act done, or else he shall not be charged; but if he had killed J.S. before the time of my discharge or countermand given, I should have been accessory to the death, notwithstanding my private repentance."
The next case to which I may usefully refer is some 250 years later, but over 150 years ago: Rex v. Edmeads and Others 3 Carrington & Paynes, 390, where there is a ruling of Baron Vaughn at a trial at Berkshire Assizes, upon an indictment charging Edmeads and others with unlawfully shooting at game keepers. At the end of his ruling the learned Baron said on the question of common intent, "that is rather a question for the Jury; but still, on this evidence, it is quite clear what the common purpose was. They all draw up in lines, and point their guns at the game-keepers, and they are all giving their countenance and assistance to the one of them who actually fires the gun. If it could be shown that either of them separated himself from the rest, and showed distinctly that he would have no hand in what they were doing, the objection would have much weight in it."
I can go forward over 100 years. Mr. Owen (to whose juniors we are indebted for their research into the relevant Canadian and United States cases), referred us to several Canadian cases, to only one of which is it necessary to refer in detail;, a decision of the Court of Appeal of British Columbia in Rex v. Whitehouse (1941) 1 Western Weekly Reports 112. I need not read the headnote. The Court of Appeal held that the trial Judge concerned in that case, which was one of murder, had been guilty of misdirection in his direction to the jury on this question of "withdrawal". The matter is, if I may most respectfully say so, so well put in the leading judgment of Mr. Justice Sloan, that I read the whole of the passage at pages 115 and 116:
"Can it be said on the facts of this case that a mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companions' change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: Where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is 'timely communication' must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences."
The learned Judge then went on to cite a passage from Hale and the passage from The Queen v. Saunders and Archer to which I have already referred.
In the view of each member of this Court, that passage, if we may respectfully say so, could not be improved upon and we venture to adopt it in its entirety as a correct statement of the law which is to be applied in this case.
The last case, an English one, is Rex v. Croft, a well known case of a suicide pact, 1944 1 King's Bench 295, where, under the old law, the survivor of a suicide pact was charged with and convicted of murder. It was sought to argue that he had withdrawn from the pact in time to avoid liability (as the law then was) for conviction for murder.
The Court of Criminal Appeal, comprising Mr. Justice Lawrence (as he then was), Mr. Justice Lewis and Mr. Justice Wrottesley, dismissed the appeal and upheld the direction given by Mr. Justice Humphreys to the jury at the trial. Towards the end of the judgment Mr. Justice Lawrence said, at pages 297 and 298:
"Counsel for the appellant also complains that the summing-up does not contain any reference to the possibility of the agreement to commit suicide having been determined. It is true that the learned judge does not deal expressly with that matter except in a passage where he says: 'Even if you accept his statement in the witness-box that the vital and second shot was fired when he had gone through that window, he would still be guilty of murder if she was then committing suicide as the result of an agreement which they had mutually arrived at that that should be the fate of both of them, and it is no answer for him that he altered his mind after she was dead and did not commit suicide himself.' The authorities, however, such as they are, show, in our opinion, that the appellant, to escape being held guilty as an accessory before the fact must establish that he expressly countermanded or revoked the advising, counselling, procuring, or abetting which he had previously given."
It seems to us that those authorities make plain what the law is which has to be applied in the present case.
We therefore turn back to consider the direction which the learned Judge gave in the present case to the jury and what was the suggested evidence that Becerra had withdrawn from the common agreement. The suggested evidence is the use by Becerra of the words "Come on let's go", coupled, as I said a few moments ago, with his act in going out through the window. The evidence, as the Judge pointed out, was that Cooper never heard that nor did the third man. But let it be supposed that that was said and the jury took the view that it was said.
On the facts of this case, in the circumstances then prevailing, the knife having already been used and being contemplated for further use when it was handed over by Becerra to Cooper for the purpose (if necessary) of avoiding by violent means the hazards of identification, if Becerra wanted to withdraw at that stage, he would have to "countermand", to use the word that is used in some of the cases or "repent" to use another word so used, in some manner vastly different and vastly more effective than merely to say "Come on, let's go" and go out through the window.
It is not necessary, on this application, to decide whether the point of time had arrived at which the only way in which he could effectively withdraw, so as to free himself from joint responsibility for any act Cooper thereafter did in furtherance of the common design, would be physically to intervene so as to stop Cooper attacking Lewis, as the Judge suggested, by interposing his own body between them or somehow getting in between them or whether some other action might suffice. That does not arise for decision here. Nor is it necessary to decide whether or not the learned Judge was right or wrong, on the facts of this case, in that passage which appears at the bottom of page 206, which Mr. Owen criticised: "and at least take all reasonable steps to prevent the commission of the crime which had agreed the others should commit." It is enough for the purposes of deciding this application to say that under the law of this country as it stands, and on the facts (taking them at their highest in favour of Becerra), that which was urged as amounting to withdrawal from the common design was not capable of amounting to such withdrawal. Accordingly Becerra remains responsible, in the eyes of the law, for everything that Cooper did and continued to do after Becerra's disappearance through the window as much as if he had done them himself.
Cooper being unquestionably guilty of murder, Becerra is equally guilty of murder. Mr. Owen's careful argument must therefore be rejected and the application by Becerra for leave to appeal against conviction fails.
I have so far said nothing about Cooper's application. At the end of the trial the matter was properly considered by the experienced counsel by whom Cooper had had the advantage of being represented, Mr. Myerson, Q.C. and Mr. Evans. Immediately after the trial and before, as we understand it, they had seen the transcript, they had formed the view that there were no arguable grounds of appeal for Cooper. When the matter was again formally put before them, they again expressed that view, and they notified the Registrar that that was the view they took.
Having read the summing-up and the evidence, this Court is without hesitation of the opinion that they were right in that view. There were no arguable grounds of appeal.
Cooper was of course told that that advice had been given. But, as he was fully entitled, he persisted in his application. Legal aid was given to Mr. Evans to come here for the purpose of explaining the position to the Court, for which we are obliged. We went through, with him, Cooper's own grounds of appeal which he had written out himself. It is plain that all those grounds, as Mr. Evans said this morning, are, if I may use lawyers' shorthand, all jury points, that is to say, he seeks to go behind the adverse verdict of the jury on the issues of fact which were before them.
This was a very serious case, resulting in a conviction of a young man for murder. We have gone through these grounds with the utmost care to make certain that there are no arguable grounds and, as I have already stated, we find none. Therefore, for the reasons I have given and as we indicated before Mr. Evans left, there is no possible reason for giving Cooper leave to appeal and his application is likewise refused.
(The Court heard submissions on the concurrent sentences in the case of Becerral)
LORD JUSTICE ROSKILL: We shall not interfere with the concurrent sentences.
