England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2008

Lord Justice Latham :

1. On the 9^th November 2005 in the Crown Court at Hull the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 17 years. His co-accused, James Gilligan was also convicted of murder and received the same sentence. A third defendant, Shaun Wilson, pleaded guilty to an offence of assisting an offender and was sentenced to 21 months imprisonment. The appellant appeals against conviction with leave of the full court.
2. The deceased, Barrie Jackson, died on the night of the 24^th April 2005. The appellant believed that the deceased had been partly responsible for an assault on his girlfriend some eight days previously. The prosecution case was that on the night of the 24^th April, he arranged with the co-accused Gilligan to meet and attack the deceased who was known to be drinking that night in a public house known as The Dolphin. There would appear to be no doubt that the appellant was waiting outside The Dolphin when the deceased emerged after a violent incident inside the public house. There is equally no doubt that Gilligan's white van had been seen parked in the area shortly before the deceased emerged, and was driven to the scene very shortly after the incident which culminated in the deceased's death began.
3. As is so often the case, the evidence relating to the incident itself was somewhat confused. A witness, Gary Green, saw a person, whom he did not identify as the appellant, spray CS gas into the deceased's eyes: the deceased started to run away, but was chased by the man with the spray who was swinging a hammer at him. He then described a van approaching and coming into contact with the deceased who fell to the ground. The man with the hammer continued to attack the deceased. Gilligan got out of the van and joined in the attack, there was then confusion during which he saw someone stamping and jumping on the deceased.
4. Other witnesses also described a man having something which looked like a gas canister, and an attack including stamping on the deceased whilst he was lying on the ground.
5. No one specifically identified the appellant as being the person who struck any blows. One witness, Jade Walker, came out of the public house at the time when the deceased was on the ground with three or four men around him. As she walked to the scene, the appellant left, carrying something in his hands. The deceased was still being attacked at that stage.
6. The appellant's account was that he accepted that he was the person with the CS canister. He was not intending to do more than confront the deceased when he came out of the public house. The deceased however made as if to attack him, so he sprayed his face with gas. He accepted that he then punched and ultimately kicked the deceased whilst he was on the ground. He denied that any of the phone calls, which he had accepted he had made to Gilligan, were anything to do with organising an attack on the deceased. When the deceased was on the ground, and Gilligan's van had arrived, but before anyone else was involved, he left the scene, taking a hammer from the rear of the van in case any friends of the deceased tried to attack him.
7. Gilligan accepted that he was there, and was the driver of the van. He agreed that the van came into contact with the deceased and the deceased then fell. The appellant fell on top of the deceased, punching his face. He, Gilligan, was trying to pull the appellant away, he saw the appellant kicking the deceased in the face and head up to four times. He played no part in the attack.
8. The pathologist, Professor Vanezis described severe injuries to the facial bones of the deceased and a fracture of the skull which were all consistent with stamping and kicking injuries. It was possible that a hammer could have been used to cause one of the injuries. It was the injuries to the head which caused the deceased's death; but the pathologist was unable to say which particular injury or injuries either caused or contributed to his death.
9. The appellant has been granted leave to appeal by the full court on two grounds. The first ground is that the judge failed to direct the jury adequately or at all on the legal consequence if the jury accepted that the appellant left the scene before any fatal blows were struck. The second ground is that the judge failed to leave to the jury the possibility of an alternative verdict of guilty to manslaughter, in accordance with the principles set out in the speeches in the House of Lords in R v Coutts [2007] 1 CAR 60.
10. As to the first ground, the judge considered with some care in discussions with counsel before his summing up the form of this direction that he should give to the jury on joint enterprise. As a result, the judge gave what is agreed to be a wholly unimpeachable direction as to participation and intent, and then, turning to the case of each defendant, he said as follows:

"So where does that leave the issues in the case? Let's take Steven Gallant. He denies there was ever any plan in advance. He accepts that he did use violence on Barrie Jackson by punching him and kicking him, but he denies involvement with anybody else in doing that. He denies that any physical violence by him was a cause of the death of Barrie Jackson and he denies any intention to cause serious harm, although he admits he did intend to cause some harm.

What about Mr Gilligan? He too denies any advance plan to attack Barrie Jackson. He denies that he himself used any physical violence at all or played any part in it and he says that if any action of his did cause any injury to Barrie Jackson it was entirely accidental during the course of the struggle and he denies any intention to cause any harm to Barrie Jackson.

…

Suppose either Gallant or Gilligan left the scene, left the actual point of violence, before the violence ended. We're talking of a relatively short time on any view, are we not? If the defendant participated in the use of physical violence on Barrie Jackson in the kind of ways I have suggested are possible, and he intended serious harm to Barrie Jackson, he would remain responsible for the consequences of the violence after he left if the violence was, in fact, a continuation of the same joint attack, and it is for you, looking at the matter realistically to say whether it was the continuation of the same joint attack"

11. Mr Roberts QC, on behalf of the appellant, submits that this was an inadequate direction to the jury on the consequences of withdrawal. He submits that the judge should have directed the jury in accordance with the principles set out in this court in the case of R v O'Flaherty, Ryan and Toussaint [2004] 2 Cr App R 20, [2004] EWCA Crim 526. At paragraph 58, the court said:

"A person who unequivocally withdraws from the joint enterprise before the moment of the actual commission of the crime by the principal, here murder, should not be liable for that crime."

12. Later at paragraph 60, the court said:

"To disengage from an incident a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise. This is ultimately a question of fact and degree for the jury."

13. Accordingly, Mr Roberts submits, the judge should at least have left to the jury the question of whether or not they were satisfied that the appellant had not withdrawn from the joint enterprise sufficiently to bring his participation to an end.
14. In one sense, the criticism is valid. The judge's summing up was not a complete statement of the legal position. This is an extremely good example of the fact that a summing up does not have to be a complete statement of the law. It has to be tailored to the particular issues in the case. In this case, the appellant never claimed that he had withdrawn from the joint enterprise. He denied that there was any joint enterprise at all. The real issue was whether or not there was a joint enterprise. That was the context of the judge's direction which, as we have said, was agreed as the appropriate direction by all counsel. In any event, the evidence made it clear that the appellant was the instigator of the incident; it was his grudge. In those circumstances, assuming that the attack started as a joint enterprise, he clearly would have had to do more than merely walk away in order to demonstrate that he was withdrawing from any further participation. In our view, the summing up was properly directed to the issues before the jury.
15. As to the second ground, there is no doubt, as this court emphasised in R v Foster and Others [2007] EWCA Crim 2869, that in a trial for murder, the judge is obliged to leave the possibility of acquittal of murder and conviction of manslaughter on any available basis for which there is some evidence. This was the effect of the speeches in the House of Lords in Coutts. The important question in the present case is whether or not there was any evidence upon which an alternative verdict of manslaughter was available. Mr Roberts submits that the fact that the appellant admitted having fought with, and kicked the deceased was of itself sufficient to require the judge to direct the jury that there was available to them the alternative verdict of guilty of manslaughter. Mr Campbell QC on behalf of the Crown has taken us to the transcripts of discussions between judge and counsel which explain why the alternative was not left to the jury. On the 3^rd November 2005, the judge indicated that he was minded to direct the jury that what had to be proved against each defendant was that "either his attack, or if it was a joint attack that joint attack caused the death". If that had been his ultimate direction, then clearly he would have had to direct the jury that there was an alternative verdict of manslaughter available on the basis of the appellant's evidence that he did not intend either to kill or cause really serious harm. However, the judge thereafter clearly looked more carefully at the medical evidence. On the 7^th November 2005, shortly before he started his summing up, he said:

"What concerns me is this; it doesn't seem to me that there is any basis in the medical evidence for saying that only some of the injuries would have caused death."

16. He then went on to indicate that as a result he proposed to direct the jury that they could only convict of murder if they were satisfied that there was a joint enterprise. In other words, if the jury concluded that there was no joint enterprise but that one or other of the defendants inflicted some injury, there was no evidence that such injury caused or contributed to the death. It follows that unless joint enterprise was established, there could be no conviction for either murder or manslaughter. Accordingly, there was no basis for leaving the alternative of manslaughter to the jury.
17. We therefore conclude that the appellant's conviction was safe and dismiss the appeal.