LORD JUSTICE LLOYD: On 13 July 1990 in the Crown Court at Nottingham, before Turner J., this appellant was convicted of murder. He was sentenced to be detained for life.
There were three co-accused, Mohammed Afsar, Andrew Armstrong and Mark Leivers. Armstrong and Leivers pleaded guilty. Afsar was convicted. He has not appealed. Rook appeals by leave of the single judge.
The case concerns a so-called contract killing. Afsar was a taxi driver in Nottingham. He wished to be rid of his wife Shaheen. On Tuesday 19th December 1989 he met the appellant, Armstrong, and a man called Barker, when they hired his taxi. During the journey there was some conversation. Afsar asked whether the appellant wanted to earn some money. A friend of his, said Afsar, wanted to have a woman beaten up. As the conversation continued, it became clear that the "friend" wanted the woman murdered. There was some discussion between the appellant, Afsar and Armstrong about money. The appellant named a price of £20,000. The price agreed was £15,000 cash, and £5,000 worth of jewellry which the woman would be wearing. Afsar said it was to be a murder on credit. In the event he paid no more than £50.
Barker said he wanted nothing to do with it; so the following day, Wednesday, 20th December 1989, the appellant recruited Leivers. He said to Leivers, "Look, Mark, it's a murder". Leivers replied "Yea, it's all right. I'll be there". It was arranged that Afsar would pick up the other three at about 4.30 p.m. They drove to Colwick Park, by the side of the lake. There was sortie discussion between all four as to how the murder should be committed. Afsar said that when they were ready he would bring the woman in his car. It was agreed that the murder would take place the following day.
On the evening of Wednesday 20th December there was a further discussion between the appellant, Armstrong and Leivers about the method of killing. They decided to use a knife and a piece of wood. Armstrong said that he wanted some money "up front". The appellant said that they would need money in order to buy new clothes after the murder.
On Thursday 21st December 1989 Afsar drove Armstrong and Leivers to Colwick Park, and dropped them as arranged. The appellant could not be found. Afsar went back to collect Shaheen. When he returned, Armstrong and Leivers dragged her from the car and killed her most brutally. Her body was found in the lake the next day.
The appellant was interviewed and made certain admissions. He also gave evidence at the trial. His defence was that he never intended the woman to be killed. He hoped to get some money from Afsar "up front", and then disappear. At first he "tagged along" to see how serious the others were. He was not sure whether they would go through with it or not. Then he tried to stall them, because he never intended to go through with it himself. Finally, on the Thursday, he deliberately absented himself. He said he thought that, if he were not there, Armstrong and Leivers would not go ahead without him.
We quote some answers from his examination in chief to illustrate his state of mind. After describing the drive to Colwick Park on Wednesday 20th December 1989 he was asked:
"Was any agreement come to at the end of that journey? (A) Mark and Andrew agreed to do it the next night so I towed the line and said I would. (Q) Why? (A) In the hope that there would be some money up front on the Thursday".
Turning to the Thursday, he was asked:
"(Q) Did you see Afsar on Thursday or not. (A) Yes, in the morning. (Q) Time? (A) Between 10.15 a.m. and 10.30 a.m. (Q) Who was with you? (A) Leivers, Armstrong, Afsar and myself. (Q) Who said what? (A) Afsar had asked us if we were going to go through with it that night and Armstrong and Leivers agreed. To stall them again I asked if there was any chance of getting a gun. (Q) Why? (A) Purely to stall him because I never had any intentions of going through. (Q) You have told us you were waiting for money up front. (A) Yes. (Q) Was there any? (A) No. (Q) What did you decide? (A) At that stage I knew that there would be no hope of getting any money up front, and I made it quite clear to myself that I didn't want to be there on the day they was going to go down to Colwick Park. (Q) What did you believe as to whether or not the others would be willing to go. (A) I was not quite sure whether they'd go down. (Q) Did you believe they would go down without you or not? (A) No. .... I thought that if I was not there Andrew and Mark would not go without me. (Q) Did you believe they would have gone with you? (A) Yes. (Q) Did you believe they would do it? (A) No. (Q) Had you ever any intention of doing it yourself? (A) No, never. (Q) Did you ever intend having anything to do with the killing of this lady. (A) No, never intended for this female to be murdered".
Then in cross examination he was asked:
"(Q) At some point there was a discussion where all three of you are appearing to each other to be genuine, that is you at least are regarding the others as genuine? (A) When we was in the car and not in the dormitory. (Q) Now as far as you could tell the others were treating you as serious in your intention, were they not? (A) Yes. (Q) Did you regard yourself as the brains? The person who was setting up this plan? (A) No, because as I said earlier I took all of it. I said I planned all of it to help my friends but it was discussion between me Armstrong and Afsar. (Q) You believed they were going to do it. They wanted to do it? (A) With me there, yes. (Q) There was no indication from either of them that they were wavering, that they would not do it was there? (A) No. (Q) So you were, were you hoping that if you didn't turn up they might not do it? (A) Yes. (Q) But every indication was that they wanted to do it, wasn't it? (A) Yes."
So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind.
In those circumstances, two main questions have been canvassed in argument. First, what is the mental element which the prosecution must prove in the case of a secondary party who is not present at the scene of the crime? If a person gives assistance and encouragement to the principal parties, knowing or foreseeing that a crime may well take place, and it does, is it a defence that he did not intend the crime to be committed?
Secondly, if a person gives assistance and encouragement, such as would make him liable as a secondary party, and he then changes his mind, what must he do to make his withdrawal effective? Must he neutralise the assistance he has already given (to use the term adopted by Smith & Hogan Criminal Law 7th edition at page 154 and by Glanville Williams Criminal Law the General Part 2nd edition, paragraph 127)? Must he at least have done his best to prevent the commission of the crime, by communicating his withdrawal to the other parties, or in some other way? Or is it enough that he should have absented himself on the day?
Before attempting to answer these questions, so far as is necessary to dispose of the instant appeal, we should first mention the way in which the prosecution put the case against each of the two defendants. Against Afsar it was put on the basis that he had procured the murder, or alternatively that he had assisted the others in the commission of the murder. The judge directed the jury that in either event the prosecution must prove against Afsar that he intended to bring about the result. This may have been too favourable to Afsar, certainly so far as assistance is concerned. As for the mental element required to establish the procuring of the crime, we were referred to Ferguson v Weaving 1951 1 KB 814 at 819, Attorney General's Reference No. 1 of 1975, 1975 QB 773 and Blakely v DPP 1991 RTR 405.
Against the appellant, the case was put differently. It was not suggested that he had procured the murder, only that he had assisted, encouraged or counselled the commission of the crime. We use the terms assistance and encouragement, rather than the statutory aiding and abetting, so as to include assistance given before the crime. In his summing-up the judge said:
"You will remember that I have stressed to you that so far as Asfar is concerned, it is important that it should have been his intention throughout that Shaheen should be killed. So far as Rook is concerned he need never have formed an intention to take an active part in her killing. The case against him is that he did certain things which assisted and encouraged Armstrong and Leivers to commit the murder which he knew would probably be committed on his own admissions to the police."
With respect to the learned judge, the reference to "taking an active part in the killing" blurs the distinction which he was seeking to draw. The question was whether he ever intended her to be killed, not whether he ever intended to take an active part in the killing. We think, however, that this is how the jury would have understood the distinction which the judge was drawing. For in another passage later on in the summing up, he summarises the various matters relied on by the prosecution to show that the appellant had assisted and encouraged the others, and then said:
"If you are satisfied that Rook did any of those things intending to assist Armstrong and Leivers to commit a murder which he knew would probably be committed, then subject to what I shall say in a moment, you would be entitled to find him guilty of murder".
The first question is whether the sentence just quoted is a misdirection. Mr. Hockman for the appellant submits that it is. It is necessary, he says, that the appellant should have intended the victim to be killed, when giving assistance, otherwise the mens rea required for a secondary party would be less culpable than that required for the principal.
We cannot accept that argument. It is now well established that in a case of joint enterprise, where the parties are both present at the scene of the crime, it is not necessary for the prosecution to show that the secondary party intended the victim to be killed, or to suffer serious injury. It is enough that he should have foreseen the event, as a real or substantial risk: see Chang Wing-Siu 1985 AC 168, Hyde 1990 92 Cr. App. R 131 and Huy Chi-Minq 1992 1AC 34. Thus, a secondary party may be liable for the unintended consequences of the principal's acts, provided the principal does not go outside the scope of the joint enterprise.
We see no reason why the same reasoning should not apply in the case of a secondary party who lends assistance or encouragement before the commission of the crime. Indeed Sir Robert Lowry C.J. in the Court of Appeal in Northern Ireland drew this very analogy in R. v. Maxwell 1978 1 WLR 1363. That was a case where the defendant was charged, in effect, with aiding and abetting. "His guilt springs", said Sir Robert Lowry C.J., "from the fact that he contemplates the commission of one (or more) of a number of crimes by the principal, and he intentionally lends his assistance in order that such a crime will be committed". Lord Scarman, in the House of Lords approved Sir Robert Lowry's formulation:
"The principle thus formulated has great merit. It directs attention to the state of mind of the accused — not what he ought to have in contemplation, but what he did have; it avoids definition and classification while ensuring that a man will not be convicted of aiding and abetting any offence his principal may commit but only one which is within his contemplation."
It follows that it is no defence to a secondary party to say that he did not intend the victim to be killed, or to suffer serious harm, if he contemplated or foresaw the event as a real or serious risk. In Lynch v. DPP for Northern Ireland 1975 AC 653, overruled on another point in Howe 1987 AC 417, the accomplice drove the principal to a place where he knew the principal intended to kill a policeman. Lord Morris said at page 67 8 that the intentional driving of the car was enough to render the accomplice liable for aiding and abetting the murder, even though he regretted the plan, and indeed was horrified by it. In Smith & Hogan the mens rea for a secondary party is stated at page 13 3 as follows:
"It must be proved that D intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime...."
If that is right, as we believe it to be, then there was no misdirection in the passage we have quoted, except that the reference to the appellant knowing that a murder would probably be committed is too favourable to the appellant, if it means more probably than not.
We should add that we have not considered how, if at all, the position has been affected by Gillick v. West Norfolk and Wisbech Area Health Authority 1986 AC 112, on which we heard no argument.
Mr. Hockman put forward an alternative argument that the case against the appellant could have been put on the basis that he had procured the commission of the crime, in which case it would have been necessary, he submitted, for the prosecution to prove that he intended the crime to be committed. It would be an odd consequence of section 8 of the 1861 Act that procuring alone of the four modes of complicity enshrined in that section should require proof of intention that the crime be committed, although that is no doubt the natural and ordinary meaning of the word "procure" as Lord Widgery C.J. pointed out in AG Reference No. 1 of 1975. But we need not concern ourselves further with the point, since although the prosecution might have put the case against the appellant on the basis of procuring, in so far as he recruited Leivers for the purpose of murdering the victim, that was not how the case was put.
Before leaving the first question, we should mention the written direction which was handed to the jury. The direction was agreed after much discussion between the judge and counsel. It is as follows:
"Q.1. That the prosecution proved that Rook did an act which, at the time, he knew was capable of assisting or encouraging the commission of the murder in the belief that murder would probably be committed? In this context, by 'probably' is meant the existence of a substantial or real risk that the murder would be committed and was not something which could be dismissed as negligible. If no, not guilty."
This direction is cumbersome at first reading. But with one exception it is accurate. There is no reference to Rook's intention to do an act which he knew was capable of assisting etc. But there was never any issue that the acts which the appellant did were intentional, in the sense that he intended to do those acts. So the omission is immaterial, and is not relied on by Mr. Hockman.
For the reasons given, we would answer the first question adversely to the appellant. We now come to the second part of the case, which raises, potentially at least, more difficult questions. Mr. Maxwell submits that where a person has given assistance, for example by providing a gun, in circumstances which would render him liable as a secondary party if he does not withdraw, then in order to escape liability he must "neutralise" his assistance. He must, so it was said, break the chain of causation between his act of assistance, and the subsequent crime, by recovering the gun, or by warning the victim to stay away, or by going to the police. Mr. Hockman submits, on the other hand, that the Crown must prove that the defendant continued ready to help until the moment the crime is committed; and if there is doubt as to the defendant's state of mind on the day in question, or his willingness to provide further help if required, then the jury must acquit.
As between these two extreme views, we have no hesitation in rejecting the latter. In Croft 1944 KB 295, the surviving party of a suicide pact was held to be guilty of murder. Lawrence J. giving the judgment of the court said:
"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."
In Whitehouse 1941 1 WWR 112 Sloan J.A. said:
"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 crime, 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."
In Becerra 1976 62 Cr App R 212 this court approved that passage as a correct statement of the law. The facts of Becerra were that the victim was killed in the course of a burglary. The appellant had provided the knife shortly before the murder. The court held that the appellant's sudden departure from the scene of the crime with the words "Come on let's go" was an insufficient communication of withdrawal. So the appellant's conviction as a secondary party to the murder was upheld. In Whitfield 1984 79 Cr. App. R. 36, Dunn L.J. stated the law as follows:
"If a person has counselled another to commit a crime, he may escape liability by withdrawal before the crime is committed, but it is not sufficient that he should merely repent or change his mind. If his participation is confined to advice or encouragement, he must at least communicate his change of mind to the other, and the communication must be such as will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the aid and assistance of those who withdraw."
In the present case the appellant never told the others that he was not going ahead with the crime. His absence on the day could not possibly amount to "unequivocal communication" of his withdrawal. In his evidence in chief, in a passage already quoted, he made it quite clear to himself that he did not want to be there on the day. But he did not make it clear to the others. So the minimum necessary for withdrawal from the crime was not established on the facts. In these circumstances, as in Becerra, it is unnecessary for us to consider whether communication of his withdrawal would have been enough, or whether he would have had to take steps to "neutralise" the assistance he had already given.
Mr. Maxwell rightly drew our attention to a sentence in the judgment of Sloan J.A., already quoted, where he refers to the service of notice on the other party that if he proceeds he does so without further aid from those who withdraw. This may suggest that aid already afforded need not be neutralised. We agree with Mr. Maxwell that this attaches too much importance to a single word. But that is as far as we are prepared to go in this case. We are not prepared, as at present advised, to give our approval to his proposition in its extreme form. In his Criminal Law The General Part, Glanville Williams quotes at paragraph 127 a graphic phrase from an American authority. "A declared intent to withdraw from a conspiracy to dynamite a building is not enough. If the fuse has been set he must step on the fuse". It may be that this goes too far. It may be that it is enough that he should have done his best to step on the fuse. Since this is as much a question of policy as a question of law, and since it does not arise on the facts of the present case, we say no more about it.
We turn last to the summing up on the second part of the case. What the judge said was as follows:
"The law has however always recognised that a person who has embarked on a criminal enterprise may withdraw from it and save himself from a criminal liability in respect of it. In general terms, however, more than mere inactivity is required to destroy the criminal liability which flows from the earlier acts, in this case of encouragement or advice, to lead to a verdict in your case of not guilty. The law sometimes is expressed in terms of causation. If, by absenting himself on the Thursday afternoon, it rendered unlikely the commission of the murder, and it was the intention of Rook that the murder should not be committed, why then even though you may have been satisfied that he did the acts of assistance and advice or encouragement that I have outlined to you then you would find him not guilty of the offence of murder."
In other words, if by absenting himself, the appellant rendered the murder unlikely, and intended that it should not take place, then find him not guilty. Although this does not follow the approach in Becerra, it is certainly not too favourable to the prosecution. For it does not require any positive action by the appellant to break the chain of causation. If the summing up had been confined to the oral directions given by the judge, the appellant would have had little to complain about. But the judge went on to put his directions in writing. The written directions went through many versions, and bear the imprint of many minds. Simplicity and clarity have suffered in the process. The directions are as follows:
"Q.2. If the answer to Q.l. is yes, then has the prosecution proved that Rook's absence alone from the enterprise was not capable of neutralising and did not in fact neutralise the assistance and or encouragement he had previously given. If yes, then guilty of murder. If no, then go to Q.3.
Q.3. If the answer to Q.2. is no, has the prosecution proved that by absence he did not intend to neutralise the effect of what he had previously said and done. If yes, then guilty of murder. If no then not guilty."
It is to be borne in mind that the above directions in their final form were agreed by counsel for the defence (not counsel appearing before us), as well as counsel for the prosecution. So the judge should not bear the whole responsibility for the form the directions ultimately took. Nor are we suggesting that written directions should not have been given. But these directions were at best confusing and at worst misleading. In particular, question 3, if we have understood it correctly, is unfortunate since it invites the jury to convict if the appellant did not intend to neutralise the effect of what he had said and done, even though, by his absence, he may in fact have done so. Mr. Maxwell seeks to defend the directions, on the grounds that the jury would never have proceeded beyond question 2. But we do not regard this as satisfactory. We are driven to the conclusion that question 2 and 3 are a misdirection.
But having said that, a clearer case for the application of the proviso would be hard to conceive. If the jury had been properly directed in accordance with the law stated in Becerra there can be no doubt whatever that the verdict would have been the same, for there was never any suggestion that the appellant had communicated his intention to the other parties, so as to make his withdrawal effective. Accordingly we would dismiss the appeal.
HOCKMAN: My Lord, may I mention one matter?. Having heard, as best as I could follow, what your Lordships have said, it seems to me that I am properly entitled to ask your Lordships to consider certifying a point of public importance, at least on point 1. I conceded on point 2 that, although there are interesting questions of law, in the end the decision did not turn upon them and therefore that may be more problematic. The decision did certainly turn upon point 1 in as much as, if I had succeeded on it, then clearly the result would have been completely different. But I did not succeed on it because your Lordships have ruled against me on it. Nevertheless, it is clearly a point of the greatest public importance as to whether a secondary party not present should have the intention, which I was submitting he should have, or alternatively whether in fact the rather lesser mens rea which your Lordships have now defined is sufficient, that definition being given in this case, I suspect for the first time, at the appellate level in a case specifically concerned with a secondary party not present. I appreciate there are dicta in one or two of the other cases that your Lordships has quoted; Maxwell and Lynch, but this is perhaps the first case in which that point on mens rea is raised as a central issue. I would certainly invite you therefore to say that is a point of law of general public interest. I could formulate it more precisely.
LORD JUSTICE LLOYD: Yes. Let us hear what Mr. Maxwell has to say on certification?
MR. MAXWELL: My Lord, I do not disagree with those representations. If your Lordships were wrong then it is a matter of extreme importance on that issue as it is formulated.
LORD JUSTICE LLOYD: The first question is whether or not you are asking for leave to appeal?
MR. HOCKMAN: Yes, my Lord, I certainly do ask for that.
LORD JUSTICE LLOYD: If you are asking for leave, the answer is that leave is refused. On the question of certification, if you submit the question in writing and let us have it sometime in the next week or so, we will deal with it.
MR. HOCKMAN: My Lord, assuming for the moment that I am able to formulate the question which your Lordships do feel inclined to certify on that point, I am wondering whether in those circumstances there may be some advantage in at least attempting to formulate a question on the other point as well, so that your Lordships can consider that?
MR. JUSTICE LLOYD: You can attempt and see how far you go. I think we would be less likely, for the reasons you have already mentioned, to certify on that. Mr. Hockman, we are very grateful.
