England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		22nd June 2001

1. LORD JUSTICE LAWS: In February and March 2000 these appellants, Stephen Kenneth Roberts, Marc Steven Day and Ian Peter Day were charged at the Birmingham Crown Court before the Recorder of Birmingham, His Honour Judge Crawford QC on an indictment containing two counts. Count 1 charged all three with the murder of Paul David Gardener on 19th July 1999. Count 2 charged all three with an offence of violent disorder on the same day and relating to the same occasion. On 9th March 2000 Roberts and Ian Day were convicted of murder on count 1. Marc Day was convicted of manslaughter, which had not been charged in the indictment but left to the jury as an alternative. All three were convicted of violent disorder under count 2. On the same day inevitable mandatory sentences of life imprisonment were passed on Roberts and Ian Day. A sentence of five years' imprisonment was passed on Marc Day for manslaughter. Concurrent sentences of 18 months imprisonment were passed on all three appellants for the offence of violent disorder.
2. All three now appeal against their convictions on count 1 with leave of the single judge. In addition Marc Day renews his application for leave to appeal against sentence.
3. The appeal in part requires the court to revisit the law of joint enterprise in crime, particularly in relation to a state of affairs where there is scope for supposing that the alleged participants are not at one as regards their intentions for the outcome of the enterprise in question.
4. Marc Day and Ian Day are cousins and Roberts is an uncle of both of them. Although we must look at some aspects of the evidence in greater detail, the facts of the case may be swiftly collected in outline as follows. The 17th of July 1999 was a Saturday. Marc Day was socialising at the Rumours club. Paul Gardener, the man who was to die, was also present. A minor incident occurred when the deceased, as we will refer to him, was said to have stumbled onto Marc Day. Nothing significant happened however and any difficulty that there was was broken up by the club manager.
5. The next day, Sunday 18th July, Marc Day was again at the club with Ian Day and Stephen Roberts. The deceased was there also. He was with one Dean Hall. There were no exchanges between the parties. Ian Day left early. Marc Day, Roberts, Kelly Day (she was Marc Days's sister) and a man called Peter Melvyn went to a local chip shop. The deceased and Dean Hall were also at the chip shop.
6. As the Day party left the shop the deceased started to shout abuse at them. Marc Day proceeded to telephone Ian Day. He arrived in a van or truck. The three appellants went looking for the deceased. They found him sure enough outside a block of flats where Hall's sister Donna lived together with two women who were to be witnesses, Samantha Green and her mother Christine Green. Ian Day proceeded to punch the deceased, probably three times to the head. That caused him to fall backwards. He hit his head on the kerb. Ian Day then kicked him three times to the head, seemingly the right-hand side of the head. Meantime Marc Day was fighting with Dean Hall. Marc Day was knocked to the ground and kicked. Roberts meanwhile had followed Ian Day and then he gave Marc Day a hand. The deceased died as a result of a kick or injury to the left-hand side of his head causing severance of the left vertebral artery which led to a subarachnoid haemorrhage. Eye witnesses said that the blow was either perpetrated by the driver Ian Day or one of the other two. That is the barest summary and we must come back to some of the eye witness evidence having regard to points taken by Mr Blake QC on behalf of Roberts.
7. The next day having heard about the death all the appellants went to the police. Ian Day later admitted guilt of manslaughter but asserted that he did not have the necessary intent for the crime of murder. Marc Day said he did not go anywhere near the deceased. Roberts said it never occurred to him that someone would be kicked to death. Both Roberts and Marc Day denied kicking the deceased at all. All three appellants gave evidence in their own defence.
8. As we have indicated Ian Day was to accept that he was guilty of manslaughter. He so accepted explicitly by his counsel before the jury and accepted moreover for his part that all the deceased's injuries had been caused by blows struck by him. By the end of his police interview he had made the limited admission that he had punched the deceased to the ground and on the ground kicked him once.
9. As between the three appellants the grounds of appeal differ. While it is elementary that the Crown's opening at a criminal trial is not evidence and that of course the shape of the case may change, as indeed it did here, it is useful for clarity's sake to set out a very short passage from the opening in this case which is recorded in the skeleton argument prepared by Mr Thomas on behalf of the Crown:

"If at the end of the evidence you are sure that any defendant was involved in an unlawful assault on Paul Gardener with the intention of causing him really serious injury, and that that assault resulted in Paul Gardener's death, then your verdict will be that that defendant is guilty of murder. Being involved in an assault like this can include delivering blows yourself, or encouraging another to deliver blows, if you have the appropriate intention to kill or cause serious injury. A man is also guilty of murder if he participates in a joint venture, for example beating someone up, realising that in the course of that assault another of the group might use force with intent to kill or to cause really serious harm, and that person does so. So your decisions at the end of the case will depend on what you decide each defendant did: whether or not he was acting jointly with the others: and, if so, what his own intentions were and what he realised about the intentions of those others."

10. Before coming to the grounds of appeal it is important to see how the matter was left to the jury in the case of each appellant. First the learned Recorder directed the jury that as against each of the defendants on count 1 there were three possible verdicts: guilty of murder, not guilty of murder but guilty of manslaughter, not guilty altogether - see transcript page 6C to D. Next he directed them that the mens rea relied on in this case was not an intent to kill but an intent to inflict grievous bodily harm or really serious injury - 7C to E. After that the Recorder proceeded to indicate that the jury should consider the case against each defendant in two alternative ways. They should first decide whether the defendant whom they are considering himself struck the deceased - 8A to B. If yes, they should decide whether the blow caused or contributed to the death - 8C. If yes, they should decide what was the defendant's intention. If it was to inflict really serious harm he would be guilty of murder. If it was to inflict some harm falling short of really serious harm he would be guilty of manslaughter - 8D to E. These directions in our judgment are as a matter of law impeccable in relation to an accusation that an individual defendant killed the deceased quite aside from any question of joint enterprise. Joint enterprise was the second way in which the Recorder invited the jury to consider the case against each appellant. First, he said this:

"The question is this. Are we sure that Paul Gardener's death was nevertheless caused by the carrying out of a common design in which that defendant whose case you are considering took part?

Under this road there are a number of questions for you to ask yourselves. The first is this. Was there a common plan to cause really serious harm to Paul Gardener? A common plan involves more than one person and you would enquire, in relation to each defendant, was he a party to such a plan or agreement? Was this defendant, the one you are thinking about, part of that plan? Where a criminal offence is committed by two or more persons each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty."

11. Then at 11F to 13B the Recorder said:

"So you would ask yourselves the question, did this defendant, that is to say the one you are considering, intend that really serious harm might result from the carrying out of the common plan? If 'no' then that defendant is not guilty of murder. If 'yes' then there is a final question. Did this defendant, that is to say the one you are thinking about, realise that the person actually inflicting the harm might kill, even though he had no intention to do that, and his intention was to cause really serious harm?

You could only convict a defendant here of murder if you were satisfied so that you were sure that there was a common plan to cause really serious harm to Paul Gardener, that that defendant you are considering was part of the plan and part of the agreement, that Paul Gardener's death was caused in carrying out that common plan and that the defendant you are considering intended that really serious harm might result and that this defendant - the one you are considering - realised that the person actually inflicting the harm might kill, with intent to cause really serious harm. Only if the answer to all those questions is 'yes' would that defendant be guilty of murder.

If in the case of a particular defendant at any stage your answer is 'no', then he would not be guilty of murder and you would have to consider the position in relation to him with regard to manslaughter - and you repeat the exercise - but without the harm being contemplated being really serious harm, but just harm. If I harm somebody, knowingly causing damage, knowingly causing injury, albeit not serious injury and he dies, then, as I said to you earlier, I am not guilty of murder, but I am guilty of manslaughter. If there was a common plan here to cause some harm to Paul Gardener, but not really serious harm, and if you are satisfied that the defendant whose case you are considering was part of that plan and that Paul Gardener's death was caused in carrying out that common plan and if this defendant that you are considering intended that harm might result - if the answer to all those questions is 'yes' then that defendant would be guilty of manslaughter. But if the answer to any of them is 'no', then you would not be guilty of manslaughter, and he would not in that event be guilty of murder or manslaughter."

12. As we shall show the last part of this direction is the subject of criticism advanced by Mr Fitzgerald QC on behalf of Marc Day. The criticism is central to his appeal.
13. We turn now to the appeal advanced on behalf of Roberts. Mr Blake says that the case against his client changed during the course of the trial. Instead of putting it simply on the basis that Roberts was party to a joint enterprise with Ian Day, who actually struck the blows, to inflict grievous bodily harm on the deceased, by the end of the case the Crown were saying that Roberts himself took part in the physical attack. In particular he struck what looks to have been the last blow, or rather kick, which was particularly vicious. Mr Blake concedes, as we understood him, that there was evidence from which a reasonable jury could have inferred that Roberts was guilty of murder as a participant in a joint enterprise with Ian Day and that is plainly right. But he submits that the jury may have convicted Roberts on a different basis, namely that he struck a blow which caused or contributed to the death and was actuated by an intent to do really serious injury. But the Recorder's directions in relation to the evidence upon that scenario were unbalanced, unfair and incomplete; and so, if that was the basis of the conviction, the conviction was unsafe, and we cannot be sure that it was not the basis of the conviction.
14. Mr Blake refers to the evidence of Dean Hall with whom, it will be recalled, Marc Day got into a fight; his sister Donna Hall, who was an onlooker; the two further onlookers Samantha Green and her mother Christine; and the co-defendant Ian Day. He also referred to the evidence about bloodstains given by the Crown expert Claire Lowrie. We have an agreed note of the evidence rather than a transcript.
15. The arguments as to the bloodstain evidence and the evidence of the co-defendant Ian Day are discrete. The argument in relation to the other witnesses is compendious and is to the effect that by his approach to these witnesses testimony, or rather his omissions in relation to it, the Recorder in effect excluded Marc Day as one of those who actually struck the deceased or might have done so and thereby he artificially heightened the case against Roberts as a primary attacker. Thus in chief Dean Hall said that three people jumped out of the van and went to the deceased first. Then after the fight with him (Dean Hall) "they ran back towards the van which took them directly past the deceased. They kicked him before they got in the van. All of them did this." Cross-examined for Ian Day he said: "As they ran across him they stamped on him." However, cross-examined for Marc Day he said: "All I can say with certainty is that there was one stamp by one person who I could not identify." Donna Hall said she saw three men around the man on the floor. The one on the right was kicking. She could not say what were the numbers of the persons doing the kicking. Cross-examined for Roberts she said: "I saw one person doing the kicking. I didn't see anyone else do anything to the person on the ground." Samantha Green said (we take the words of the note exactly: they are abbreviated in some respects as will be apparent):

"Driver then started kicking him in the head. Other two got out and walk over. PG (deceased) flat on back with head by the kerb. Driver walked over to him when he fell on the floor. He was on the other side to my point of view. Three or four hard and sharp kicks. Could hear the thud when he was kicking him in the head. Other two got out of other side of the van. Walk to where PG lying. Didn't take much notice of them. Looking at how the driver kicking PG. Saw one of them by the side of the driver. They both walked over but only one standing there - not see where other one went. The person who went over stood on the other side to the driver and kicked more than once - think to the head as well. They were hard ones again."

16. Then a little later:

"Saw the driver kicking him one last time. PG had not moved at all. Driver had changed to the other side. Could see neither of the other two."

17. In cross-examination Samantha Green accepted that she had told the police only about one man kicking the deceased. Samantha's mother Christine Green said she saw one person kick the deceased in the head hard, as if he would kick the head down the road. She said: " As the kicker got back in the van reversed". It is to be noted that Roberts accepted that he was the last man to get back into the van. Cross-examined for Roberts Christine Green said she thought the kicker was in his early twenties wearing a light top. He was not in his forties wearing a dark blue top, which would be a description of Roberts' appearance.
18. Mr Blake first complains of the Recorder's observation at 29H that there was no suggestion that any of these witnesses were telling untruths. That was not the case; but the comment was later corrected at least as regards Dean Hall - see 16B to D.
19. At 64C the Recorder said it was not suggested that Marc Day inflicted any kicks and there was no evidence that he did. At 29C to D the Recorder said this:

"...we know that there seem to have been two separate encounters, one involving Paul Gardener and Ian Day and possibly to some extent Stephen Roberts - I will deal with that in more detail later - and the other involving Dean Paul and Marc Day."

20. So those passages on their face apparently excluded Marc Day as a primary attacker upon the deceased, leaving only Roberts, if there had been any attacker in addition to Ian Day. Yet Mr Blake says the Recorder does not mention those parts of Dean Hall's evidence which at least might be thought to leave open the possibility that Marc Day might have assaulted the deceased. Then as regards Samantha Green the Recorder said this:

"'The other one, that is to say, the other of the two, started kicking as well. The driver was on the far side. The other man was on the nearside.'"

21. Then the Recorder continued:

"The prosecution case is that this other man that she is referring to is Stephen Roberts."

22. Mr Blake says that the Recorder should have summed up the whole of the evidence in relation to such a question, including the inconsistencies in this witness' testimony. There is, we understand, no express or direct criticism of the Recorder's treatment of the evidence of Donna Hall or Christine Green, nor do we think there could have been. The judge summed up this evidence perfectly fairly. But Mr Blake's emphasis is upon his overall point that Marc Day was effectively excluded from the jury's consideration as a primary attacker. That was exemplified by this passage at 41F-H:

"Then she [that is Christine Green] added this: 'The man doing the kicking got into the passenger door.' That evidence is important for your consideration because the man who got into the passenger door last was Mr Roberts, and Mrs Green says that the man doing the kicking got into the passenger door. The prosecution rely on that."

23. We are quite unpersuaded by these points taken by Mr Blake. Such evidence as there was which left open any possibility that Marc Day was actually a primary attacker upon the deceased was tenuous to the point of invisibility. The Recorder had moreover to balance the defendants' respective interests. If he had in terms left to the jury the possibility that Marc Day had struck the deceased and caused or contributed to his death, Marc Day's consequent complaints would be as loud as they would be obvious. In fact the Recorder reminded the jury of points relied upon by Roberts. We take three instances. First, as regards Donna Hall, 36E-G:

"...she says that she saw one man kicking a body, which must have been Paul Gardener, and the two others nearby. The prosecution rely on that. The defendants say that you ought not to and her evidence is unreliable. But she did say, I should remind you, that she only saw one person kicking, no more. That is relied on on behalf of Mr Roberts because it is the prosecution case that Roberts actually took part in the kicking."

24. Then as regards Samantha Green, 39A-C:

"When she went back the driver gave him one last kick. 'I could see the driver kicking him one last time. The driver had changed to the other side. He was round the front.' Her evidence therefore suggests that the driver, Ian Day, kicked the dead man from both sides. This is relied on, on behalf of Stephen Roberts, who if he kicked Paul Gardener, would have done it from the opposite side that Ian Day started kicking from."

25. Lastly as regards Christine Green, 60E-61A:

"Then in relation to the evidence of Mrs Christine Green, in respect of the prosecution suggestion that Christine Green identified the kicker, first there was a difference between her evidence that the kicker was the last passenger into the van and that of her daughter, who said that the last person to kick was the driver. Second, Christine Green says that the person who was kicking was not a man in his forties wearing a dark blue top. She did give a more positive description, somewhat more tentative than that. She said 'I would say that he was in his early twenties. I can't recall the clothing. I think it was a light top.' As for the person who Christine Green says that she saw kicking Paul Gardener, she said that she had a glimpse and no more of him."

26. In our judgment there is nothing in this part of the appeal.
27. We turn to the argument about the bloodstains evidence. The deceased's blood was found on the back of Roberts' jeans. There was no blood on his shoes, save for one spot which was very firmly treated as irrelevant and not probative of anything. As regards the shoes the judge said this: (65D-66A)

"Miss Lowrie said that there was nothing on the shoes or either of them to indicate that the wearer had kicked a bloody surface or a blood wet area. On the other hand, she made the point, which in a sense I suppose is obvious and you do not have to be an expert to know, that if somebody kicks some part of somebody which is not bleeding then there would not be blood on the shoe. But what she said was 'if someone kicks an area that is not bloody I wouldn't expect blood.' On the other hand, there was no evidence that Paul Gardener was kicked anywhere other than on the head. That is where the injuries were and that is where the blood was. So you may think that if the wearer of the shoes had kicked a bloody head, then you might have expected blood on the shoe, but there was none.

So perhaps the scientific evidence in this case, as the case has developed, does not take the case much further, does not help you very much."

28. Mr Blake's argument is that the expert's evidence went a mile further than neutrality: it positively assisted Roberts and the Recorder should have said as much. Certainly, the Recorder might have done so, but it is impossible to suppose that the jury did not have the true point on the merits in mind. The passage which we have quoted makes the point fair and square. If Roberts had kicked the head of the deceased blooded on the ground you would have expected blood on the shoe.
29. Lastly we turn to Mr Blake's submission about Ian Day's evidence. In cross-examination for Roberts Ian Day said:

"I never saw Roberts do anything to PG. Any injuries received by PG were a result of blows by me."

30. The Recorder did not remind the jury of this piece of evidence. But he did remind them of a different passage in Ian Day's cross-examination by the Crown 75D-E:

"In cross-examination he said that 'the injury to the left side of Paul Gardener's head was not down to me. The only other person who had a chance to kick Paul Gardener was Stephen Roberts...'"

31. Mr Blake's point is that fairness and evenhandedness require the judge to remind the jury of both pieces of evidence if he was going to remind them of either. The Recorder would, in our view, have been better to have done so. But we do not consider that his failure to do so affects the safety of the conviction on the facts. Ian Day did not exculpate Roberts. He did not say that Roberts did not strike the deceased. Following the passage of which the judge did remind the jury, there shortly appears this sentence:

"Roberts was behind me when I went over to help Marc. He had the opportunity to put in kicks at this stage, but I do not know whether he did."

32. This is perfectly consistent with the evidence which Mr Blake complains was left out. Ian Day accepted that the deceased's injuries were down to him. He of course could not say what precise blows caused what injury - indeed on the pathologist's evidence that was something of an open question. In our judgment the jury must have had well in mind the thrust of Ian Day's evidence.
33. In his skeleton argument Mr Blake had some other points, for example in relation to the evidence of another witness Richard Stokes. Mr Blake describes his evidence as "even more confusing". But having looked at it and what the parties say about it, we are clear that there is nothing to advance Roberts' case here if the other points fail, which in our judgment they do.
34. We should say that it is our clear view that there was an overwhelming case against Roberts on joint enterprise. He had gone looking for the deceased with the other two. He stood by Ian Day while Ian Day attacked the deceased, close enough - four to six feet on the evidence - to get the deceased's blood on his jeans, however it exactly got there. The suggestion that he was not lending support and encouragement to Ian Day, knowing perfectly well what the latter was doing, and appreciating (for he was watching it) that serious harm would or might eventuate, is barely in the real word. That is the true backdrop to the evidence about Roberts' participation. His conviction is perfectly safe and his appeal is dismissed.
35. We turn next to the appeal on behalf of Ian Day. In his case the only issue was intent. As we have said it was made clear to the jury on his behalf that he admitted manslaughter. Mr Saunders QC on his behalf has three points. First, the summing-up failed to reflect the evidence of the pathologist Dr Acland which in some respects was favourable to Ian Day's case on intent. As to this it is said that trial counsel elicited replies from Dr Acland to the effect that the fatal haemorrhaging might have been caused by no more than a punch. More particularly the doctor said there was little force needed for the haemorrhage. The Recorder in fact reminded the jury that a punch could have caused the fatal injury - 63G. A little earlier he had said this:

"He [the pathologist] thought that the probability was that the blow which caused the bruise by the left ear, the triangle that he has marked, was the blow which caused the head to move so sharply and so hard over to the right as to stretch and snap the artery."

36. Mr Saunders says this exaggerates the evidence. The artery did not snap. The language suggests a greater degree of violence than the doctor described as being necessary to cause the haemorrhage. He has a further point relating to what the Recorder said at 63D-F:

"Dr Acland said that the nature of the bruising suggested that the blows were of significant force, although he agreed that the amount of force required would have been less in the case of a drunken man - which you may think that Paul Gardener plainly was - than it would have been in the case of a sober man, because of the way the drink affects the muscles."

37. The point here, it is said, is that the passage suggests that the state of the deceased's inebriation was relevant to the nature and degree of the bruising found on the body; and that would be to miss the point of the doctor's evidence. In our judgment that is not what the Recorder is saying in this passage. He relates, as the evidence related, the state of the man's drunkenness to the amount of force required to inflict the relevant injury. The point if anything was in favour of the defence.
38. As regards the principal argument on Dr Acland's evidence we regard Mr Saunders' submission with respect as artificial. First, it involves a toothcomb approach to the Recorder's words. Secondly, the jury had to look at the evidence as a whole, not just the evidence about what blow might have caused the death and what degree of force would have had to lie behind it. On the evidence as a whole Ian Day punched this man three times or so, knocking him to the ground and then kicked him when he got there. It is difficult to see that a reasonable jury could have concluded that he did not intend to inflict really serious injury.
39. The second submission made for Ian Day is that the Recorder should have related the evidence about footwear to the case concerning Ian Day's intent. There was a footwear expert in the case, Mr Bone. The Recorder summarised his evidence thus:

"...if you accept Mr Bone's evidence about that, then that injury seems to result from a kick by Ian Day. Perhaps 'kick' may not be a quite accurate way of putting it because, as was pointed out on his behalf, the marks were not toe marks. They were side marks - either the outside of the right foot or the inside of the left foot - but they were sideway swings rather than frontal kicks, if you accept Mr Bone's evidence that that was a kick at all."

40. Mr Saunders' complaint is that if Ian Day had intended to cause really serious injury there would have been a full-blooded kick with the toe, and the judge should have related the evidence that there was no such thing to Ian Day's case on intent.
41. We are bound to say that we consider that if this court were to rewrite summings-up to the extent implied by this submission it would do nothing but fill the processes of criminal justice with uncertainty and delay and undermine the role of the first instance court, and ultimately of the jury itself. That would be a serious disservice to the public. The Recorder had made the point on the facts. He might of course have drawn the threads together more than he did, but there is nothing here to assault the safety of the conviction.
42. Lastly in relation to Ian Day it is said that the Recorder should have directed the jury that the kick which Christine Green said she saw could not have been administered by Ian Day because he was already back in the van. The observations we have just made in relation to the previous point apply here with equal force. Moreover we should note the passage in the summing-up at 41F-H which we have already cited in relation to Roberts' appeal. There is nothing in this. Ian Day's appeal is dismissed.
43. There remains Marc Day's appeal against conviction. Mr Fitzgerald QC puts his case in two ways. With respect to him we have found it helpful to reformulate them somewhat as follows. First it is said that there was a fundamental omission from the Recorder's summing-up in relation to the law of joint enterprise. For convenience we repeat the short but critical passage which is at 12G-13C:

"If there was a common plan here to cause some harm to Paul Gardener, but not really serious harm, and if you are satisfied that the defendant whose case you are considering was part of that plan and that Paul Gardener's death was caused in carrying out that common plan and if this defendant that you are considering intended that harm might result - if the answer to all those questions is 'yes' then that defendant would be guilty of manslaughter. But if the answer to any of them is 'no', then he would not be guilty of manslaughter..."

44. Mr Fitzgerald says that it is not enough to refer to participation in a common plan. The jury had to be satisfied that the defendant whom they were considering contemplated or foresaw that an act of the kind which in the result was perpetrated might be perpetrated. Here Marc Day must be shown to have contemplated or foreseen that one or other of his co-defendants might not merely punch the deceased but kick him to the head if and when he fell to the ground. Such a kicking would, it is said, be an act of a different quality from throwing a punch. It is clear on authority that if one of the parties to a criminal joint venture does an act which is in truth outside the scope of the joint venture, as the jury find it to have been, the others are not criminally liable for that act's consequences. So much appears not least from what is, if we may say so with respect, a well-known passage in Anderson and Morris [1966] 2 QB 110 approved by their Lordship's House in Powell and English [1999] 1 AC 1. In that latter case Lord Hutton cited the relevant passage in Anderson thus at page 19:

"In delivering the judgment of the Court of Appeal [in Anderson] Lord Parker CJ accepted...the principle formulated by Geoffrey Lane QC on behalf of Morris:

'that where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what had been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act. Finally, he says it is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise.'"

45. Mr Fitzgerald says that the kicking of the deceased on the ground went beyond anything his client had agreed to, or at least might arguably have gone beyond it. And so the Recorder should have directed the jury that they would have to be satisfied that Marc Day had contemplated such an act being committed. That is to say, the summing-up should distinctly have referred to the act of kicking as something separate and apart from the mere throwing of a punch.
46. Plainly the state of the evidence as to what in fact Marc Day did foresee or contemplate is of the first importance here. Mr Thomas for the Crown says that Marc Day accepted in cross-examination that such kicking could happen in the course of a fight of the kind to which he admittedly assented on the occasion in question and thus there was no need for the Recorder to give any particular direction about the nature and quality of the act which Marc Day must have contemplated.
47. We have a transcript of Marc Day's evidence. Here are the relevant passages. Page 38:

"Q. The situation is this: the three of you set out in Ian's van from Bosworth Drive looking for the men who you say had been chasing you.

A. Correct.

Q. You intended to confront them.

A. What do you mean intended? We went to look for them, yeah.

Q. You went to look for them?

A. Yeah.

Q. If you found them, you intended to confront them, did you not?

A. Yes.

Q. It is obvious, and it was then obvious, that if you confronted them there would probably be a fight.

A. That's correct, yeah."

48. Then at 39:

"Q. Yes, so what you wanted to do was have a fight, sort it out so that nothing like this ever happened again.

A. I didn't want to have a fight, I didn't want to have a fight.

Q. It was far and away the most likely outcome, was it not?

A. Yes.

Q. You do not suggest that what took place between you and Dean Hall was you acting in self-defence, do you?

A. No.

Q. No. What you say...is, 'I took a swing at him, he took a swing at me, a swing each'.

A. Yeah.

Q. In other words, a normal fight?

A. Yeah.

Q. Do you agree with Ian's definition of a normal fight, one where if someone gets knocked down, he gets kicked in the head? Is that a normal fight?

A. You don't know what's going to happen in a fight. You don't know what is going to happen in a fight. I wouldn't -- I don't know that I'm going to get kicked as well or punched to the floor. You just do not know what's going to happen in a fight.

Q. But that is one of the things that may well happen in the course of a fight like this.

A. As a say, it may well happen, yeah. I don't agree with it but it may well happen. As I say, you don't know."

49. Mr Fitzgerald submits that the reference to being kicked on the floor as something which may happen was only a reference to what in fact had happened in the particular fight between Marc Day and Dean Hall. We regard that as a misreading of what the witness said. He was plainly accepting that kicking of the sort in question may well happen in a fight of this kind - a fight of a kind which, on his own evidence, he was prepared to contemplate would be engaged and fought out with the deceased. We have not forgotten his answers, more than once repeated, to the effect that he did not approve of such kicking. They were largely given in answer to leading questions; but in any event the issue was not whether Marc Day approved of such behaviour but whether he contemplated that it might occur. It seems to us plain on his own evidence that he did. That being so there was no issue here as to the quality of the act foreseen by Marc Day. The case is wholly unlike that which arises where the adventurers agree on an attack with fists, or it may be with some weapon made of wood or the like, and then one of them wholly unexpectedly draws a knife - see Powell and English and also Uddin [1999] QB 431. In the result the Recorder here was not required to give a specific direction as to the quality of the act contemplated.
50. But there are two further points. First, if in truth the jury concluded that Marc Day foresaw that the deceased might be kicked to the head on the ground, then, says Mr Fitzgerald, he foresaw the infliction of grievous bodily harm. But in that case the jury would, as it were should, have convicted him of murder. On this footing the conviction of manslaughter is inexplicable and therefore unsafe. Secondly, it is said that since the other two defendants were convicted of murder on a joint enterprise basis, Marc Day's conviction for manslaughter must have been based on a mistake of law and for that reason was unsafe: Marc Day could only be guilty if he participated in the joint enterprise to inflict grievous bodily harm with intent. It is submitted that if his own state of mind was only to intend some harm and he did not foresee the infliction of grievous bodily harm by the others, then he was no participant in the joint enterprise in question and should have been acquitted altogether.
51. As to the first of these points, this in our judgment misstates what it is that Marc Day must be shown to have contemplated or foreseen. He must have foreseen a fight with the deceased in which the deceased might be kicked in the head when on the ground, but such foresight does not necessarily involve foresight of grievous bodily harm although of course it very often might. Not every kick to the head causes grievous bodily harm, although lamentably many do.
52. As regards the second point, it is not part of the law of joint enterprise that a secondary party, B, must share the mens rea of principal offender, A - see Slack [1989] QB 775 and Hide [1991] 1 QB 134 where it was made clear that foresight of what the principal may do is sufficient mens rea for the accessory even if there is no actual agreement between him and the principal. In Powell and English itself a major question was whether a secondary party in a murder case must be shown to have been actuated by the mens rea required in the principal offender, and the question was answered in the negative. The subject matter of a joint enterprise is not a state of mind or intention but an objective act which it is contemplated will or might be done.
53. That proposition we think provides the key to the right result in a class of case which is not, so far as counsel's researches have revealed, distinctly the subject of any authority. Suppose that the participants in a joint enterprise all propose or foresee the same kind of violence being inflicted on their victim, let it be punching with the possibility of kicking to follow. On that they are at one. But two them harbour a subjective intention to inflict really serious injury by means of such violence. The third harbours only, or foresees or intends only, that some harm might be done. One of those actuated by an intent to do grievous bodily harm punches or kicks the victim just as all three foresaw. The victim falls and suffers a subdural haemorrhage and dies. The principal is guilty of murder as he had the mens rea required. So also is the accessory who, like him, intended or contemplated the infliction of the serious injury. What of the third adventurer? Mr Fitzgerald submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows. Yet if his fellows had entertained only an intention to do some harm and otherwise the facts were the same, all three would be guilty of manslaughter. It does not seem to us that that can be right. In such a case there was a joint enterprise at least to inflict some harm, and that is not negated by the larger intentions of the other two adventurers. In our judgment in such a case there is no reason why the participants should not be convicted and sentenced appropriately as their several states of mind dictate. That was what was done here. Marc Day's conviction is perfectly safe. His appeal, like those of the others, is dismissed.
54. We turn to Marc Day's application for leave to appeal against sentence. We grant leave and unless Mr Fitzgerald has anything to say to the contrary we will treat this hearing as the hearing of the appeal as his client is present in court.
55. Marc Day is 26 years of age. He has not only a previous clean record but a previous positive good character, as was described by the judge to the jury in the course of his summing-up. It is not necessary for us to repeat the facts. The aggravating feature here is the degree of premeditation which formed part of the story. On the other hand we are dealing with an appellant who was distinctly acquitted of the murder charge and convicted by the jury plainly on the basis that he intended no more than some harm in the course of a fight, although possibly with kicks, to the deceased man.
56. In all the circumstances and having considered some previous decisions of this court to which Mr Fitzgerald has referred, we think that the sentence of five years passed by the judge was too high and we would propose to reduce the sentence to one of three years nine months. In those circumstances the sentence of five years will be quashed and a sentence of three years and nine months will be substituted. To that extent the appeal is successful.
57. MR BLAKE: My Lord I rise before my Lords in a matter we mentioned very briefly yesterday and that is in respect of an application which I was seeking to make originally in different circumstances for leave to examine the compatibility of a mandatory life sentence for murder with my client's human rights.
58. LORD JUSTICE LAWS: I thought you said that was closed in this court?
59. MR BLAKE: It was closed in this court because of the decisions in Pyrah and Lichniak. What I would be seeking, however, in the light of the judgment which my Lords have given today, would be for permission to be granted, the appeal to be dismissed and that would enable me to place the matter before the House of Lords, because the other two cases which are presently pending petition do not concern questions of joint enterprise where a conviction is upheld on that basis.
60. LORD JUSTICE LAWS: I am not sure I quite follow, Mr Blake. There are petitions to their Lordships' House on this question of compatibility of a mandatory life sentence for murder with the Convention rights? Leave has not been given or has been?
61. MR BLAKE: Leave has been refused by this court.
62. LORD JUSTICE LAWS: But they certified a question of public importance and so their Lordships are in the process of considering whether to give leave or not?
63. MR BLAKE: Yes.
64. LORD JUSTICE LAWS: You want a separate avenue to their Lordships' House in this case because it is a joint enterprise case. How would the question of joint enterprise, aye or no, bear on the issue relating to Convention rights?
65. MR BLAKE: My Lord the simple submission is that if there are a number of different cases where their Lordships may consider the present arrangements intervened disproportionately upon any form of judicial supervision of the apportionment of blame, then it may be that a number of different cases where problems and difficulties of principle of sentencing arise may be appropriate to be examined if the case is looked at.
66. LORD JUSTICE LAWS: I can see how that might arise in theory. A difficulty is that I am not sure it would be proper for us to give you leave to appeal against sentence when we, or speaking for myself I, do not know anything about the force of reasoning in the other case in this court. I am not inviting you to go into it. Would it be a possibility, speaking for myself, that we -- I am not sure, I was going to say stand adjourned your application for leave to appeal against sentence on the footing that if their Lordships give leave in the other cases you might be allowed to renew it? Or are you going to say maybe there should be leave in this case even if not in the others?
67. MR BLAKE: My Lord, it is for that reason that I was raising the matter now. I appreciate I am cutting into the short adjournment. Mr Fitzgerald is counsel in the other two cases. I had a brief word with him and think this scenario would be a different set of facts. My submission is that this court can grant leave and dismiss it herewith. I do not advance any substantive arguments. It is paragraph 55 of my skeleton argument.
68. LORD JUSTICE LAWS: We had better have a look at that.
69. MR BLAKE: Mr Fitzgerald helps me in that in both Pyrah and Lichniak leave to appeal was granted to this court to enable this court to grapple with the substantive merits. They were then dismissed and leave to appeal to the House of Lords was refused by this court, and on the present state of authorities that enables their Lordships to entertain the case with a certified point if they thought fit. So that is the present state of play.
70. LORD JUSTICE LAWS: If we grant you leave to appeal merely to make the possibility of an avenue to their Lordships we are not doing anything more but making it possible for you to petition them.
71. MR BLAKE: My Lord, yes.
72. LORD JUSTICE LAWS: I know he is on the sidelines as it were in relation to this but let me see if I may have some help from Mr Fitzgerald. Mr Fitzgerald, I do not want you to take your valuable time or indeed ours by going into these two cases of Pyrah and Lichniak at any length, but can you articulate in a sentence how the ECHR point is put.
73. MR FITZGERALD: It is arbitrary to have the same sentence for all murderers because they cover a widely differing scale of culpability and rational non-arbitrary sentencing should allow for individual circumstances.
74. LORD JUSTICE LAWS: What Article of the Convention does that violate?
75. MR FITZGERALD: Article 5(1). That is as to sentence and then it is Article 3 in the human (inaudible) grounds that in some cases it will be disproportionate and that was relying on the case of Smith.
76. LORD JUSTICE LAWS: Thank you very much. That is helpful. Mr Thomas, I know the Crown usually do not say anything about sentence. I personally think it is an extremely unhelpful tradition. Being required to pass sentences on a ex parte basis is one of the most difficult things judges have to do. But that aside is there anything you want to say about the law relating to this issue?
77. MR THOMAS: I have not given the matter any sort of thought.
78. LORD JUSTICE LAWS: There is no reason why you should have done.
79. MR THOMAS: I do apologise. I really do not want here in such a matter to shoot from the hip. As to the route that my learned friend proposes, all I can say is, as the court already well knows, it would enable him to seek to go to their Lordships' House. But on the merits as to whether he should or should not I do not think I can sensibly say anything in these circumstances. I apologise.
80. LORD JUSTICE LAWS: No. I understand, Mr Thomas. Do you want to say anything more, Mr Blake?
81. MR BLAKE: My Lord, I think the court has the issue.
82. LORD JUSTICE LAWS: Mr Blake, we are not going to give you leave. First of all it seems to us - of course we have not gone into it in any depth, I acknowledge at once - but it seems to us extremely doubtful whether there is anything in a joint enterprise case that might make an Article 5 point or an Article 3 point in some way richer than in relation to, as it were, a direct murder charge.
83. Secondly, as at present this court has held that a mandatory sentence is compatible with Article 5 so the matter is not arguable here.
84. Thirdly, if their Lordships give leave in these other two cases and the appeals prosper, then what would thereafter happen to other prisoners would be a matter for the executive or the legislature rather than this court, I imagine. Therefore in all the circumstances we will not grant leave.
85. We are grateful to all counsel for their assistance in this case.