England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM TEESIDE CROWN COURT
His Honour Judge Fox QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/04/2010

Lord Justice Leveson:

1. At the conclusion of the hearing of this appeal, we announced that it would be dismissed for reasons which would be given later. We now give those reasons.
2. Between 28 July 2008 and 11 August 2008, at the Crown Court at Teeside, this appellant, Declan Paul Appleby, and Scott Fullam stood trial for the murder of Ronald Sharples before the Recorder of Middlesbrough, His Honour Judge Fox QC. The appellant was convicted of murder but the jury could not agree in relation to Scott Fullam. A retrial was fixed for 23 February 2009; on that occasion, he pleaded guilty to manslaughter which plea the prosecution accepted.
3. On 23 June 2009, both young men came to be sentenced. Appleby (who was 17 at the time of the killing) was sentenced to be detained at Her Majesty's pleasure, Judge Fox initially ordering that he serve a minimum term of 9 years. On 3 July he varied that term to one of 6 years; on 18^th December 2009, however, on a reference by the Attorney General, that period was increased by this court back to 9 years: see [2009] EWCA Crim 2693. Fullam was sentenced to a term of 30 months detention in a young offender institution: a reference in relation to that sentence was withdrawn although the Lord Chief Justice remarked (at paragraph 43) that Fullam may have been fortunate.
4. Following his conviction, the appellant pursued an appeal against conviction on the grounds, among others, that the judge should have acceded to a submission of no case to answer. After the prosecution accepted a plea to the lesser offence of manslaughter from Scott Fullam, the grounds include a challenge to the basis on which the prosecution was mounted. It is put that the case before the trial judge was that both defendants were joint principals attacking the deceased virtually simultaneously with a common intention of causing him at least really serious harm; had the concession which the prosecution made in accepting the plea of Fullam that this was not the case and that the defendants did not share the same intention, it could materially have affected the approach of the court to the question of joint enterprise with the result that the conviction for murder is unsafe.
5. The single judge having refused to do so on all grounds, the full court was persuaded to grant leave to argue both the submission of no case to answer and the impact of the subsequent developments although the court made it clear (per Moses LJ) that permission would not have been granted on the 'no case' point alone and that focus would be better concentrated on the contention of "change of tack". In the event, in the light of the authorities, Mr Tim Roberts QC (who appeared for the appellant in this court as he had at the renewed application for leave and the trial) said that he did not intend to pursue the point which had attracted the court to grant leave and concentrated entirely on the argument that the trial judge should have withdrawn the case from the jury at the close of the prosecution. In the circumstances, partly because Mr Roberts sought to use some of the arguments on the latter point to support his submission that the judge should have withdrawn the case and partly in deference to the concern expressed by the full court, we deal with both aspects of the appeal.

The Facts

6. On 31 December 2007, together with his wife, and some friends and family, Ronald Sharples (then 52 years of age) went out for the evening. They were all celebrating the arrival of New Year. The deceased and his wife returned home shortly before midnight. Once home, they lit celebratory fireworks in the garden. The noise of the fireworks startled their dog which ran out into the street. The deceased went to find the dog, followed by his wife and one of their friends, Angie McGee (who was very drunk). Eventually the dog was found, and at about 2.00 am, the three were making their way home. Their route took them through a residential street, Inglewood Avenue, where Appleby and Fullam, with another young man, Thomas Ruecroft, were on their way to a party in the vicinity. They had also been drinking heavily although Ruecroft played no part in what was to happen.
7. The precise sequence of events is not entirely clear, and the reason why the trouble began is equally uncertain. Because of some remark made to them, it seems that Angie McGee described the group of young men as "chavs" and that Fullam reacted aggressively to the perceived insult and, at one point, seemed to be raising his hand as if to punch McGee. The deceased, Mr Sharples, tried to restrain Fullam and calm things down. There was then something of a fracas, the detail of which is far from clear although the deceased was punched in the stomach by Fullam and fell into the garden of an adjacent house. Neither the prosecution nor the defence suggested that the deceased had been acting in an aggressive way, or that Fullam punched him in self defence.
8. Mrs Sharples went to summon help from her nearby home. But in the meantime, the deceased himself got to his feet and the fight continued. The appellant went to assist Fullam (who was slightly built). The prosecution case was that the appellant and Fullam jointly attacked the deceased with the appellant delivering a martial arts type of high kick to the upper part of his body and Fullam pushing or punching him to the ground. Suffice to say the deceased fell to the ground, landing forcefully, and striking the back of his head on the pavement. He suffered a fractured skull and irreversible brain damage such that he was pronounced dead at 3.00 am on 1st January 2008. The defence case on behalf of the appellant was that he had punched, but not kicked, the deceased, that the punch which he delivered did not cause the deceased to fall to the ground and that thereafter he had withdrawn from the attack entirely before the infliction of the fatal push or blow.
9. Before outlining the evidence which was adduced in relation to the fight, it is worth setting out some of the other, unchallenged, evidence in the case. The first and most important evidence came from the pathologist. Apart from the fatal fracture of the skull, specific areas of important further injury were noted. They included an injury to the right eyelid and cheek with fragmentation of the underlying bone, associated by the pathologist with a punch, or more likely, a kick or stamp. There was a fracture of the laryngeal cartilage, which would have required a forceful blow, again more likely to be administered by a kick rather than a punch, and an injury to the left cheek; in addition, there was bruising and abrasions to his face. There is no suggestion that these injuries were caused after the deceased had finally fallen to the ground: indeed, during argument, Mr Roberts conceded that the evidence demonstrated that the deceased had received serious injuries consistent with one or more kicks which could only have been inflicted by Fullam or the appellant.
10. The police evidence was also unchallenged. Having attended the scene, despite the attempts to detain them, both the appellant and Fullam ran away. Later that day, they attended the police station where they were arrested. The account then given by the appellant was that he was walking ahead of Fullam, when he turned to see the deceased holding Fullam by the throat so he went to help. In fear that he would be punched by the deceased, the appellant admitted that threw the first punch, asserting that it was not a "proper punch". He left the scene because there were parties to attend, and he "didn't fancy being locked up at New Year".
11. The comment about being "locked up" may echo evidence given by Alan Griffiths, a local householder who had been awakened by rowdiness; he did not see any violence although he heard a loud bang and went outside to see a man lying on the roadside with three young men together, one of whom was calm, the other two "had some form of adrenaline and excitement". His evidence was summarised by the judge in this way:

"I told these three to wait and the middle sized one spoke to me because I'd asked what it was about, and he said that Mr Sharples, not using his name but indicating the man who was on the ground, had hold of the smaller one by the throat, 'and so we dropped him', and the taller one' he said, 'to my right' was saying, "I could go to prison for this". This was a remark to himself as I was walking over to the man on the ground. He heard this youth say that and he also heard the smallest of the three [whom it was common ground was Fullam] saying 'He was strangling me'."

12. Not surprisingly having regard to the amount of alcohol that had been consumed by most of those involved in this incident on the ground, the accounts which were provided were vague and, in parts, contradictory. Thus, Angie McGee could only recall screaming for help and for her husband. Christine Sharples (who was sober) had been present at the initial altercation, when her husband had remonstrated with a short boy who had become angry and raised his arm when Angie had called him a dick-head after he had said something to her. She said the boy thumped her husband in the stomach causing him to fall on his bottom although he then got up; one of the boys gave her a cuddle for the new year and she went home seeking help, returning after ten minutes by which time her husband was lying in blood.
13. Those who attended in response to the request made by Christine Sharples for help included Steven McGee: that evening he had drunk about seven pints. When he arrived, his wife had hold of the shortest male, saying "This is the one that's hit Ronnie". He dragged her away from him while that youth was shouting "So you want some?" waving a vodka bottle about. As he was pulling her to the other side of the road, "there was a bit of a melee and then I saw what seemed to be a shove, a push" by that youth causing Ronnie to fall to the floor with "a big thud". He later said that it could have been a kick. He said that he did not see a Bruce Lee type kick, saying when it was put to him that there was no suck kick "Not that I saw". He agreed that only one of the lads seemed angry but also made it clear that prior to the police being called "everything was a blur".
14. Another of the rescuers was David Sharples (the brother of the deceased) who had also drunk seven pints of lager. He ran to the scene in front of Steven McGee but he slipped and fell. He then passed his brother who, at that time was not being attacked and was upright. He turned his attention to the lads, some 12 feet away, but, still running, slipped so that one knee was on the ground. He got up and went to grab one of the youths. He put up his hand to restrain him and as he did so, the youth stepped back and put his own hands up saying "It's got fuck all to do with me. What are you doing?"; he repeated that it had nothing to do with him and said that his name was Paul. While this was happening, Steven McGee was talking to a second youth and he heard that there was a bit of a melee or distraction or scuffle over his left shoulder but he did not see what happened.
15. Paula Sharples, the wife of David Sharples, arrived in her car; she saw a "small boy" push the deceased at chest level vigorously causing him to fall "just like a deck of cards"; this was while she was still in her car. She then jumped out of the car and went to the deceased who was unresponsive and flat on his back. She then went across to her husband who was talking to three boys; she recounted the same conversation as her husband. She told them that she had not had a drink, would recognise all three and that they were calling the police. It was then that the tall boy held up his hands and said "It's got nothing to do with me. I'll give you my name now"; she was given the name Paul and recollected a surname with the word "apple" in it – whether Appleton, Appleforth, Appleby, she did not know.
16. Marie Leadbeater was staying at a friend's house in Inglewood Avenue and had gone to bed when she heard shouting outside. Looking out of the window, she saw two groups arguing. She saw a man running towards the youths, saying words to the effect "Stop it" or "Calm down" to two lads. She said that at one point she saw the taller of the two give this man (whom later in her evidence she called Ron, having at one stage heard one of the woman call him by that name) "quite a high kick" in an area she later identified as top chest level to just underneath the chin. Ron went back a bit but did not fall. She appreciated that it was a serious fight and did not want her daughter to witness it so she looked away to attend to her and when she looked back she saw Ron go back forcefully and land on his back. She thought there was a gap between the two of events of "a minute, a minute and a half, I don't know, not long". The two lads who were then stood over were the same two that had been fighting with him; there was a third boy but she remembered nothing about him. It was put to her in cross examination that she was mistaken about the kicking and punching but she said that she was 100% sure and also sure that she saw him go to the floor.
17. Paul Maguire was at the home of his ex-wife looking directly onto Inglewood Avenue. He had drunk three pints that evening and was "all right" and heard banging from Inglewood Avenue. He opened the window and looked out and saw a "little lad" doing all the shouting among four or five people. He put his head back in and then a couple of minutes later looked again when he saw the lad make a movement with a clenched fist at shoulder level and then a person came down Inglewood and performed a Kung Fu type up to chest or neck level; he moved back a bit and then heard a crack. When he looked again, the man was laid out. He told his ex wife to get an ambulance. There were three people around – the man on the ground, the short man (also described as a little lad) and the man who did the kicking motion. There was another lad and could have been a woman although he was not sure. Later, he heard a woman shouting at the little lad. He did not identify the appellant.
18. When cross examined, Mr Maguire believed that the total length of time that he had observed from the window as "a few minutes each time". He thought the kick had been delivered by a young lad wearing what looked like dark clothing "cause it went that fast", who had run from Inglewood Avenue. It was put to him that he had described the kicker as having been "all in black"; he was sure that there was a kick and he did not simply see someone slipping.
19. Mr Roberts argued before the Recorder that there was no basis for holding the appellant responsible for any push which Fullam may have given the deceased and which caused death. The judge appreciated the contradictions in the evidence (which he did not consider surprising having regard to the consumption of alcohol) but, having eliminated Thomas Ruecroft (on the basis that nobody had suggested that he had done anything) noted the appellant's admission of striking the deceased and the evidence both of the extent of the injuries and of the "deliberate and hefty kick". Rejecting the submission, he said:

"There is reason to infer that if Mr Sharples was kicked or was struck by the defendant, Appleby, then it was the defendant, Fullam, subsequently who delivered the fatal violence. ... Such here is the ambit of place and time, including description of high kicking to the chest, neck, chin area and the involvement of these two defendants, that there is material which is capable of giving rise to an inference, certainly first of all on the part of the kicker, that on that person's part there was an intention at least to cause serious injury...

...It may be extremely difficult for the jury to sort out the truth of who did what, where and how closely in time different things happened. It may be very difficult for them and then, having done that, to draw inferences as to intent, as to disassociation, if there was any and the like but none of that is my function. Where feet and hands are used aggressively by more than one young man in a relatively small compass of space and time then, if that situation upon examination excludes self defence, then it is unlawful and each young man is responsible for the actions of the other. I express it in that way because it is not for me so to decide."

20. Mr Roberts submits to this court that the evidence of Paul Maguire of a flying Kung Fu kick felling the deceased was contradicted by David Sharples, Paula Sharples and Steven McGee who confirmed that the deceased was standing up when they arrived to assist him. His fall was caused by a push (in respect of which Fullam was identified as responsible) not a kick. Further Marie Leadbeater's evidence was that although one of the youths launched a kick at the deceased, it did not cause him to fall over; she did not see what caused him to fall but it happened up to about 1½ minutes after the kick. Neither did she describe a running jump and Kung Fu kick and, although a high kick, it was not the same as that described by Mr Maguire. Her account was different to that of Paul Maguire because it was her evidence that the deceased ran across to the youths to get them to calm down. He submits that no jury could reasonably and lawfully treat Mr Maguire's evidence as identifying the appellant as the perpetrator of such a kick, ignore the evidence that it was Fullam's push that caused death and convict the appellant of murder. He also relied on the evidence of David Sharples that the appellant had ceased to offer any threat of violence before the push that caused death (which on the evidence of that witness was while he was talking to the appellant).
21. For the Crown, Mr Andrew Robertson QC argued that the prosecution case was that the deceased was jointly attacked by Appleby and Fullam in a joint enterprise of spontaneous violence that erupted on the spur of the moment after a rude exchange with Angie McGee. The injuries revealed that Mr Sharples had been subjected to serious blows and there was evidence which the jury could accept that the "small one" (Fullam) pushed him so that he fell suffering a fatal injury while, as part of the same joint attack, a taller one had kicked him at a point very close in time. Appleby had admitted using violence, had recognised that what he had done was unlawful (by what he said and by his running away) and, by his previous convictions, had shown a propensity to violence. He argued that although David Sharples spoke of a conversation with the appellant having passed his brother who was then upright, his wife, Paula, was clear that she saw her brother in law felled while she was still in the car and described the conversation (which was clearly the same one spoken of by her husband) as having occurred after she had alighted, seen Ron flat on the ground and then gone over to her husband and the appellant.
22. In our judgment, it is simply insufficient to focus on the undoubted inconsistencies between the witnesses, seeking to describe what happened at the end of New Year's Eve celebrations in a fast moving incident at night. Focus must first be placed on the undeniably serious injuries which Mr Sharples suffered which, discounting the push which caused him to fall, must have come from two substantial and serious blows (to ignore the other bruises and abrasions which the pathologist described). Given that these blows were each more likely to have resulted from a kick or stamp than a punch, and the evidence that Mr Sharples was kicked (by witnesses who could not have known the nature of his injuries however inconsistently they might describe the manner of their infliction), the agreed lack of involvement of Ruecroft and the other circumstances, in our judgment the judge was right to conclude that there was a case to answer in relation to joint participation in an attack. It was open to the jury to conclude that the fact that Appleby said that it was nothing to do with him before the final push, if that is what happened, was not sufficient thereby to dissociate himself from the attack of which he had been part or the consequences of the final blow. Neither the single judge nor the full court believed that the failure to withdraw the case was, in reality, properly open to challenge: we agree.

Subsequent Developments

23. As part of his argument that Judge Fox should have stopped the case at the conclusion of the prosecution case, Mr Roberts advanced the uncertainty expressed by the judge when he came to pass sentence. The judge put the matter in this way:

"Now, whether it was your high kick or other blow, Appleby, which indirectly caused Mr Sharples' death, for the immediate cause was his head striking the pavement, or whether it was your push Fullam, cannot confidently be ascertained. It was one or the other but it would be wrong, therefore, to say it must have been the one or ther other as against either of you…"

24. The judge's assessment of the facts for the purpose of sentence must, of course, follow the verdicts of the jury but it is not to be construed as affecting the jury's approach to the determination of guilt. That is to be derived from the summing up which identified the way in which the case was left to the jury in a manner that attracted no criticism either as to the law or on the facts. These directions are best summarised in the Route to Verdicts which were placed before the jury and were explained by the Judge in this way:

"1. Are we sure that Mr Sharples died from falling and striking his head on the ground as a result of some deliberate physical force whether a kick, a punch or a push as opposed to stumbling and falling accidentally? If you are not sure, then both not guilty. If so

2. Are we sure that force was delivered unlawfully by one or the other of the defendants? If you are not so sure, if you think it may have been, whether one or the other acting in self defence as I have explained it to you, both are not guilty. But if you are sure both on (1) and (2) that it was deliberate physical force which was unlawful then if so

3. Are we sure that it was delivered in the course of a joint attack by both defendants and not after one or the other had disengaged from it, or in the force that caused Mr Sharples to fall was not ... of a fundamentally different kind to that which the defendant contemplated? If you are sure that it was a joint attack without disengagement and without fundamentally different conduct which was unexpected by the other, then taking each defendant in turn

4. Are you sure that the defendant intended either to kill or to cause really serious harm of injury? For such a defendant, if you are sure of each of those things, then he is guilty of murder and so should your verdict be. If you are not sure you ask yourselves: Are we sure he at least realised a risk of some harm or injury to Mr Sharples? If you are sure of that, then guilty of manslaughter

5. Goes back to Question 3, because if you are not sure that it was a joint attack without disengagement or a fundamentally different type of behaviour then take each defendant in turn. Are we sure ... that he delivered the fatal force? Never mind how. Are we sure he delivered it? And if yes to whichever defendant you are asking that question about, are we sure he intended either to kill or cause really serious harm or injury? If you are, that defendant is to be found guilty of murder. If not, then ask the next question: are we sure he at least realised a risk of some harm or injury? If so, guilty of manslaughter but if neither, simply not guilty."

25. It is important to underline that the route postulated by these directions was a joint attack upon Mr Sharples with the intention accompanying that joint attack to be separately identified in a defendant found to have participated in that joint attack. The case was not left to the jury on the basis of R v Powell, R v English [1999] 1 AC 1 namely that it was sufficient if the relevant defendant participated in a joint enterprise realised that the participant who inflicted the fatal blow might intend to kill or cause serious bodily injury. The judge's observations while passing sentence do not detract from this analysis and do not impact on the correctness of his decision at the close of the prosecution case.
26. With that background, we move shortly to the re-trial of Fullam. Before the judge, Mr Richardson QC (who then prosecuted) made it clear that at the first trial the allegation had been one of joint enterprise. In explaining why the Crown were willing to accept a plea from Fullam to manslaughter, he said:

"It has to be said at all stages that if the conduct of Fullam had stood alone in this episode, that is to say a punch or push, had that been the only conduct involved, he would never have been charged with murder. It would have been a case of manslaughter. However, the Prosecution case was that he was part and parcel of a joint attack upon Mr Sharples and his conduct, in contrast to Appleby's was a push or a punch. ... It happened very rapidly on any analysis and there can be no doubt at all, certainly as a result of the jury's verdict, that Appleby was the man who did the high kick and almost certainly caused the serious injuries to the neck and facial area of Mr Sharples. Fullam's conduct, once the fatal incident, so to speak, had started in the very short space of time in which it did was either to push or to punch ...

[T]his ... in no way compromises the position in relation to Appleby because although there was a joint attack that cropped up very, very rapidly, it is possible for two separate individuals doing two separate things as part and parcel of a joint attack to have separate intentions and plainly the intention of Appleby, as the jury so found, was to cause really serious injury."

27. When the sentence was opened on 26 June 2009 in the presence of both Appleby and Fullam, in the absence of Mr Robertson, Miss Sarah Mallett opened the matter in this way:

"On 23 February, when Fullam changed his plea to guilty of manslaughter, we decided to accept that guilty plea and not seek a murder conviction. That decision followed consultation with Mrs Sharples and with the police. ...[T]he accounts given by the eye witnesses at the trial gave their separate recollections of what had occurred and, given the willingness of Fullam to accept responsibility for what he did and the inevitable difficulties caused by a re-trial, the prosecution decided to accept the plea as tendered ...

I ... do simply wish to record ... that when we accepted the guilty plea of Fullam to manslaughter it did not in any way undermine the way we put the case against Appleby, that his conduct intended to cause Mr Sharples really serious injury ... [W]e maintain still that it was a joint enterprise but that the level of intent in relation to each of the two defendants was separate."

28. In his skeleton argument (but not repeated before us), Mr Roberts argued that although the prosecution at the trial alleged that both defendants were joint principals attacking the deceased virtually simultaneously with a common intention of causing him at least really serious harm, the prosecution had since accepted that this was not the case and that Appleby and Fullam did not share the same intention. He went on that had this concession been made at trial, it could have materially affected the court's approach to the question of joint enterprise and would seriously have undermined their case for convicting the appellant of murder because the jury would have been less likely to hold the appellant liable for murder on the basis of his prior non-fatal acts of violence, whatever intention accompanied them. It would also have enhanced the appellant's case that the fatal push was delivered after the cessation of any such joint enterprise.
29. Against the background of that primary submission, it is necessary to consider how this type of problem has previously been approached. In R v Hui Chi-ming [1992] 1 AC 34, the situation arose the other way around. The principal offender struck the deceased with a pipe causing fatal injuries. Two other participants in the attack (without weapons) pleaded guilty to manslaughter and the principal offender was convicted of manslaughter. The appellant and another youth were also alleged to be participants; both were indicted for murder. The other youth admitted manslaughter but the appellant refused to plead guilty to manslaughter although the prosecution was prepared to accept such a plea. Following a trial, he was convicted of murder as a party to a joint enterprise in which the principal had murdered the deceased. The principal's acquittal of murder was not admitted into evidence. The Privy Council upheld the judge's ruling as to the admissibility of principal's acquittal for murder. Although, as Lord Lowry observed, "a serious anomaly" had occurred, there was ample evidence to support the conviction and the prosecution of the defendant for murder rather than manslaughter was not so unfair or wrong as to constitute an abuse of process.
30. That decision was cited in R v Petch & Coleman [2005] EWCA Crim 1883 [2005] 2 Cr App R 40 which concerned circumstances nearer to the present case. The appellants and two others (who had fled the jurisdiction) were alleged to have been party to a joint enterprise to find and inflict serious violence upon the deceased. The case was conducted on the basis that the principal offender (referred to as Bam Bam), responsible directly for the final act of violence which caused death, was one of the absent defendants. Both appellants were convicted of murder. When Bam Bam was returned to this country following extradition proceedings, his plea to manslaughter was accepted on what leading counsel for the Crown described as a "pragmatic basis": he blamed Petch for the serious violence and the only witness as to Bam Bam's presence was one whose evidence, at the first trial, was described by the trial judge as containing a number of weaknesses and inconsistencies, such that had it stood alone in relation to another of the defendants (who was subsequently acquitted), that case would have been withdrawn from the jury. This court rejected an appeal against the conviction based upon the Crown's change of approach.
31. In expressing the conclusions of the court, Pill LJ made it clear:

46. At the trial of the appellants, the verdicts of murder were properly reached …. For relief to be provided in this court, by way of substituting a conviction for manslaughter for one of murder, and imposing a determinate sentence, the verdicts would have to be quashed and that can only be done if they were unsafe (Section 2(1) Criminal Appeal Act 1968). The disparity of sentences imposed at the subsequent trial arising out of the same events does not affect the safety of the convictions of the appellants. Neither, in our judgment, does the conduct of the prosecution at the later trial, even if the prosecutions arose out of the same events. The prosecution took pragmatic decisions to accept pleas to manslaughter at the later trials, for reasons they have given. The acceptance of Bam Bam's plea to manslaughter on the basis that they were not confident that in June 2003 a jury would reach a verdict of guilty of murder does not cast doubt upon the verdicts upon the appellants on the evidence at their trial in March 2002.

47. The approach in Hui Chi-ming plainly supports that conclusion in our judgment …. The charge of murder against the present appellants could not be called an overcharge and there was ample evidence to support the convictions. The prosecution's alleged lack of consistency, resulting from pragmatic considerations, which has resulted in an anomaly different from, but in its way as striking as, that in Hui Chi-ming, does not open the door to a finding that the verdicts upon the appellants were unsafe. The law does not permit the court to take an overall view of the situation retrospectively and, in the interest of even-handedness, to declare the convictions of the appellants unsafe."

32. Petch & Coleman is one if not two stages beyond the present case. In that case, at the trial of the appellants, the Crown alleged that Bam Bam was the principal offender; when Bam Bam was tried, he fell to be dealt with on the basis that he was not. Thus, the court was driven to pass sentence on a basis that was not consistent with the approach at the appellants' trial. In the present circumstances, the approach of the Crown has remained entirely consistent: it has always been alleged that this appellant used unlawful force with the intention of inflicting serious bodily harm. Additionally, in this case, the jury tried both this appellant and Fullam: in circumstances in which the jury could not reach a majority verdict in relation to Fullam, they were sure of the appellant's participation in a joint enterprise in circumstances that he intended really serious harm.
33. Although there seems to be an anomaly between the position of this appellant sentenced to be detailed with a minimum term of 9 years and Fullam with a determinate sentence of 30 months, this anomaly is a consequence of the fact that, as a result of the different intent that the participants to this joint enterprise had, they were convicted of and sentenced for offences of very different gravity. The possibility of this difference was postulated by Judge Fox in the way in which he directed the jury and could have arisen, without any possibility of complaint, if the jury had returned the verdicts for which the two men fell to be sentenced. In any event, even if the two men had fallen to be dealt with on different bases of fact, that was a consequence of the offences for which they fell to be sentenced and does not affect the safety of the appellant's conviction. Thus, Mr Roberts was right to not to pursue it.
34. Having rejected the challenge to the decision of the judge that there was a case to answer and agreed that there is no basis for concluding that, because of the approach of the prosecution to the re-trial of Fullam, this appellant's conviction is unsafe, the appeal was dismissed.