England and Wales Court of Appeal (Criminal Division) Decisions

IN COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT
MacDuff J
T20087726

		200904071 D1 Royal Courts of Justice Strand, London, WC2A 2LL
		09/06/2011

Lord Justice Toulson:

1. This appeal raises issues once again about secondary liability for murder and the so-called joint enterprise doctrine.
2. On 2 July 2009 at Manchester Crown Court (MacDuff J) the appellant father and son were convicted of committing a murder jointly with Jason McPhee, who had pleaded guilty.
3. The grounds of appeal fall under two heads. First, it is said that the judge's direction on joint enterprise liability was confusing and incorrect. Secondly, complaints are made about the judge's summary of the facts.
4. The murder occurred in the early hours of Saturday 1 November 2008 on the Partington Estate in Trafford. The victim was a 23 year old man. His name was Donald Donlan, but he was known by most of the witnesses as Bones and he was referred to by that nickname throughout the trial.
5. Bones had a reputation as a hard man. He was no stranger to fights and on one occasion he had disarmed three men who came at him with knives. He had been in and out of prison for offences of violence. He had enemies on the estate, but he also had friends and relations on the estate. These included his cousin Chantelle Longbottom, who lived with her partner JJ Fagan.
6. Bones died from stab wounds. It was a ferocious and sustained stabbing. The pathologist counted twenty-six sharp force injuries, including defence wounds to the victim's hands. The fatal injuries were deep wounds to his chest and abdomen. From first to last it was the prosecution's case that McPhee alone inflicted the injuries.
7. The case against Ian Stringer (Stringer senior) and Ian Bryan Stringer (Stringer junior) was that they were guilty as secondary parties.
8. Bones died after being chased across the Partington Estate. It is difficult to follow the full details without reference to plans and photographs, but for present purposes a summary is sufficient.
9. In the early evening of Friday 31 October McPhee and the appellants had been drinking together in a pub. The relevance of this was that CCTV footage showed the clothes which they were wearing. After they left the pub they eventually made their way to 13 Kent Road, where Stringer junior lived with his girlfriend, Yasmin Bell. In the early hours of the following morning there were a number of people at that property including the appellants, McPhee and Yasmin.
10. Some doors up the road, at 4 Kent Road, lived Chantelle and Fagan. They were woken by Bones shouting from outside to "Give me the bat". Fagan went downstairs and let Bones in. He saw that Bones's face was bleeding and understood that he had been bottled. He had been bottled by McPhee after their first exchange at 13, Kent Road, when Bones went there to get a cigarette. McPhee had followed him down the ginnel and done this on Cumberland Road and Junior had witnessed this. Bones had then gone to Chantelle's to get the bat. Fagan gave him a baseball bat.
11. What happened after that was the subject of conflicting accounts.
12. According to Chantelle, Stringer junior shouted "He is in there". Bones went out with the bat and chased three men up the street towards 13 Kent Road. The three men had shiny things in their hands. Soon afterwards she saw Bones surrounded by about ten people in a semicircle with knives. She saw him with the baseball bat knock one of the knives to the ground. Someone shouted "Bones you're dead, we're going to kill you". Bones shouted back "Put your knives down and we'll have a one on one". Bones then ran off down a ginnel or alley which connected Kent Road and Cumberland Road. Bones was pursued by the group, but shortly afterwards a number of them came back.
13. Fagan's evidence was different. He said that he saw Bones confronted by three men, but not by a larger group, and he did not hear any threats to kill him, but he described seeing Bones run off down the ginnel followed by the three men.
14. The appellants' evidence, supported by Yasmin, was that Bones had turned up at 13 Kent Road, knocked at the door and asked for a cigarette. There was then a confrontation between Bones and McPhee, after which Bones ran off down the ginnel followed by McPhee. After a minute or so Stringer junior went down the ginnel out of curiosity. Stringer senior followed a few minutes later because he was concerned for Stringer junior. [See paragraph 10 above]
15. On the estate were some CCTV cameras which captured the next part of the story. The judge in his summing-up analysed the CCTV evidence in some detail. The footage showed a person being followed by three others along Cumberland Road from about the point where the ginnel joined it. From Cumberland Road the figures turned right into Laurel Walk and right again, across a grassed area, back to Cumberland Road. Although the CCTV footage was of poor quality and did not enable the figures to be identified, it did show their clothing. Mr Wood QC (whose submissions on behalf of Stringer junior were adopted by Mr O'Byrne QC on behalf of Stringer senior) accepted for the purposes of this appeal that on the evidence as a whole he could not realistically resist the conclusion that the person in front was Bones running away and that those following him were McPhee and the appellants.
16. Their route took them close to Lancashire Road, where one of the residents was Bones's grandfather Donald Longbottom. His house overlooked the grassed area. He did not give oral evidence but the judge allowed the prosecution to read to the jury two statements made by him to the police. In his summing-up the judge directed the jury to treat his evidence with care because they had not seen him or heard his evidence tested. In his statements Longbottom described seeing Bones being chased and hearing threats to kill him. He put the incident as happening at 1.15 am, which was over an hour earlier than the events recorded on CCTV.
17. The chase shown on CCTV brought Bones back to about the point where he had joined Cumberland Road from the ginnel. The baseball bat which he had been carrying was later discovered by the police at the edge of the grassed area but the footage did not show how and when he came to be dispossessed of it.
18. Bones must have continued along Cumberland Road in the opposite direction to that which he had previously taken. After about 100 metres the road becomes a lane called Cherry Walk. A little further along Cherry Walk, on the left, there is a lane called Middle Lane and then a road called Cheshire Road. Middle Lane runs behind the gardens of the houses in Cheshire Road.
19. Bones died in Middle Walk at the rear of the garden of 19 Cheshire Road, about 200 metres from the final scene recorded on CCTV. Blood found at 11/13 Cherry Walk and at other points en route provided compelling evidence that the first stab wounds were inflicted before Bones reached Middle Lane and more stab wounds were inflicted in Middle Lane.
20. Nine witnesses gave evidence about the events in Middle Lane. Some witnesses gave evidence of hearing one of the appellants say "He deserves it" and of McPhee being encouraged to "Finish him off", but they did not agree about which appellant said what. The judge described this part of the evidence as "shot with inconsistencies".
21. The appellants' evidence was that they had been following Bones and McPhee as spectators. Stringer junior arrived in Middle Lane after Bones and McPhee, but before any other witnesses came on the scene. The next person to arrive was Stringer senior. Neither of them saw McPhee do anything to Bones and they were unaware that McPhee was using a knife until right at the end, when Stringer junior tried to pull McPhee away. Both denied saying anything to encourage McPhee. Their evidence was supported by Yasmin Bell, who had followed the appellants at a distance.

The case for the prosecution and the defence

22. The case for the prosecution was that:

1. by the time that Bones set off from 13 Kent Road to the ginnel McPhee and the appellants had formed a common purpose to attack him and either kill him or cause him serious injury;

2. if the joint intention was not formed at that stage, it was formed at a later stage;

3. each appellant knew from the outset that McPhee had a knife and foresaw that he might use it to kill Bones or to cause him serious injury;

4. if either appellant lacked that knowledge and foresight at the outset, he acquired it later;

5. with that intention, knowledge and foresight, each of the appellants did one or more of a number of acts in support of McPhee – they joined in chasing Bones, disarmed him of the baseball bat, pursued him to Middle Lane, made sure he could not escape and urged McPhee on.

23. The case for each appellant was that:

1. he had no evil intention towards Bones;

2. he did nothing to encourage or assist McPhee to attack Bones;

3. he did not realise that McPhee was attacking Bones with a knife until the very end;

4. up to that point he was a mere spectator; and

5. at that point Stringer junior tried to stop McPhee.

The judge's direction

24. The judge provided counsel with a written text of his proposed directions on the main points of law and they were agreed with amendments.
25. After referring to the legal definition of murder and to that fact that the injuries were all inflicted by McPhee, the judge introduced the way in which the prosecution put the case against the appellants by saying:

"…in brief summary as you know already in fact, the crown say that Ian Stringer senior and Ian Stringer junior were parties to a joint enterprise, that by their actions and words they joined in this attack and although they did not physically join in the attack, did not do any of the stabbing, they are nevertheless jointly responsible for causing the death, just as much as if they had stabbed or attacked him themselves."

26. The judge explained in broad terms that where a criminal offence is committed by two or more persons, each may play a different part, but that if they are in it together as part of a joint plan or agreement, each is guilty. He then outlined the prosecution's case, summarised above, and said:

"…it's not necessary for the Crown to prove that they did all of those things, the pursuit, the urging on, the words of approbation, it is sufficient for the Crown to prove this (i), that they formed that common purpose, that joint enterprise, (ii) with the intention that Bones Donlan should be killed or should suffer really serious injury, (iii), knowing or foreseeing that a knife would or might be used and, (iv), thereafter, important word, thereafter, participating in the enterprise in one or more of the ways which I mentioned."

27. A little later the judge said:

"So (i) are you sure that the defendant was party to a joint enterprise in which he shared the common intention, the common purpose, that Donald Donlan should be caused grievous bodily harm or should be killed, (ii) are you sure that at the time the common purpose was formed or at some later stage, he knew or foresaw, that in carrying out the common purpose a knife would or might be used, and are you sure that (iii) after he had become a party to the joint enterprise, and after he had known or foreseen the use of a knife, he participated in the enterprise, which ended, culminated in the death of Donald Donlan? If the answers to questions 1, 2 and 3 are all yes, your verdict is one of guilty of murder. If not your verdict is one of not guilty."

28. Those were the essential parts of the judge's general direction on secondary liability. It is fair to say that there was some amplification, repetition and interweaving with references to the way in which the prosecution put its case, to which we will return when considering the criticism that the overall effect was confusing.
29. In his review of the CCTV footage, the judge commented that if they were sure that it depicted Bones being pursued by McPhee and the appellants, and if they were sure that by that time the appellants knew that McPhee had a knife and was intending to use it to kill Bones or to cause him serious injury, "that pursuit of Bones would be capable of being participation in a common enterprise."
30. Mr Wood submits that this was a misdirection. The passage came shortly before an overnight adjournment. Next morning Mr Wood raised his concern with the judge in the absence of the jury and invited the judge to give the jury a supplemental direction in a form which he had drafted.
31. On resuming his summing-up the judge gave the jury a supplemental direction which followed Mr Wood's draft but with an omission. The judge said:

"I want to say something further about participation just to make clear what I was saying to you yesterday I hope.

The CCTV pictures provides evidence from which if you accept that it was the defendants or either of them, you can infer that he or they were involved in a pursuit of Bones Donlan from Laurel Walk to Cheshire Road and into Middle Lane. If you do so, it is entirely a matter for you to decide whether that amounts to participation in the joint enterprise and, to emphasise, that would only be so if they had already formed a common intention to kill or to cause grievous bodily harm and the chase was in furtherance of that common intention, and at the time of the chase they knew or realised that a knife would or might be used by McPhee.

If they may have been following McPhee and thus joining in that pursuit for any other reason, such as that advanced by Ian Stringer junior in evidence, or they were party to a common intention not to kill or cause grievous bodily harm but only to fight and give him a beating, you could not then be sure that they were partcaipting in a joint enterprise of murder at that point, and then, if no further acts of participation are identified in Middle Lane, then you would have to acquit him, the defendant that you were considering. Knowledge of the possession of the knife by Mr McPhee on the part of either defendant is capable of supporting participation in the joint enterprise by chasing with the common purpose of either finishing him off, or causing really serious injury."

32. The judge omitted the following final words in Mr Wood's draft:

"…but if the only thing you can be sure of is that they must have known McPhee had a knife, even if they did chase him across the field, this would be insufficient to amount to participation at such a point. Of course it may become relevant to any later encouragement given by either defendant."

33. After they had retired to consider their verdicts, the jury sent a note to the judge asking him to clarify what constituted participation as defined in his summing-up. In response he gave them the following direction:

"Participation: pursuing somebody, if you are satisfied it's done, in furtherance of the joint enterprise, with that intention, in the knowledge that a knife would or might be used, that's the purpose of the pursuit, and you are sure about it, that would amount to participation; disarming of a weapon, encouragement, by words or actions, preventing somebody else from helping the person under attack, those would all be capable of amounting to participation, if your sure about it; holding on to somebody who was being stabbed, to assist in that way would be participation.

Now participation is a matter for you. You know what participation means, it has an ordinary English meaning. So those are examples of them and if you are satisfied so that you are sure that the building blocks have been put in place and then the defendant who you were considering participated in furtherance of all that had gone before, then you could be sure about participation and the final building block.

Mr Wood said:

Your Lordship very properly set in context the pursuit against the background of the common intention, the common purpose and the knowledge or appreciation that a knife would or may be used. Of course those further acts that your Lordship described have to be in the same context as well.

The judge added:

Of course the first building blocks need to be in place. You only get to participation once these are in place. Thank you very much. Will you retire and consider your verdict again please."

Secondary liability – the appellants' criticisms of the judge's direction

34. Mr Wood submitted forcefully that the jury may not have been sure that either appellant did overt acts or said words of encouragement to McPhee in Middle Lane, in view of the contradictions and inconsistencies in the evidence about what was said and done at that stage. A critical factor leading to the appellants' conviction may well have been that the jury were sure that they were each involved in chasing Bones in the circuit that he ran from Cumberland Avenue, along Laurel Walk, across the grassed area, and back to Cumberland Road, as shown on the CCTV footage. Mr Wood submitted that the judge ought to have directed the jury that such conduct could not in law amount to the conduct element required for them to be convicted of murder as aiders and abettors.
35. The submission was put in two ways. First, Mr Wood submitted that the act of aiding and abetting had to be at the very time that the offence was committed. The prosecution, he submitted, had to prove that the appellants were not merely "in on the chase" but "in at the kill". His alternative submission invoked principles of causation and remoteness. He relied on the following passages in Mendez and Thompson [2010] EWCA Crim 516, [2011] 1 Cr App R 10:

"18. At its most basic level, secondary liability is founded on a principle of causation: that a defendant (D) is liable for an offence committed by a principal actor (P) if by his conduct he has caused or materially contributed to the commission of the offence (with the requite mental element); and a person who knowingly assists or encourages another to commit an offence is taken to have contributed to its commission.

…

23. …for D to be found guilty jointly with P, D's conduct must (objectively) have constituted assistance or encouragement at the time of P's act, even if P (subjectively) did not need assistance or encouragement."

36. Mr Wood submitted that it was impossible to regard the appellants' conduct in chasing Bones around the circuit as amounting to assisting or encouraging McPhee to attack him and cause him serious injury or death; still less was it capable of being regarded as an act of assistance or encouragement at the time of the killing.
37. Mr Wood also submitted that the judge's direction on the meaning of participation in a joint enterprise was inadequate and confusing to the jury, as evidenced by their note requesting clarification, and that his further direction made matters no clearer.

The judge's direction on secondary liability

38. In principle, there is no special rule governing the criminal liability of accessories in cases of murder (as Lord Steyn stated in Powell and English [1999] 1 AC 1, 12).
39. In practice, the application of the principles governing criminal liability of accessories has caused particular problems in murder cases, mainly because of the wide definition of mens rea for murder. Cases not infrequently arise where D knowingly encourages or assists P to set out to cause serious injury to V but P goes far beyond anything which D intended or foresaw, according to D's later account. That was the problem in Mendez and Thompson. It is not a problem in the present case, because the trial judge properly directed the jury not to convict either appellant unless they were sure that at the relevant time he knew that McPhee was armed with a knife and foresaw that he might use it to kill Bones or cause him really serious injury.
40. Secondary liability requires proof of the necessary conduct element accompanied by the necessary mental element. In this appeal the debate is about the conduct element.
41. The required conduct element is stated shortly in section 8 of the Accessories and Abettors Act 1861. This provides that anyone who

"shall aid, abet, counsel or procure the commission of any indictable offence…shall be liable to be tried, indicted and punished as a principal offender."

For summary offences the corresponding provision is in section 44 of the Magistrates' Courts Act 1980.

42. The Accessories and Abettors Act did not change the substance of what was required to established secondary liability. It stated the effect of what had been established by the seventeenth century. The Accessories and Abettors Act was essentially a procedural Act. It abolished the old rule that a person could not be convicted as a secondary party unless the principal offender had been convicted.
43. In its original form section 8 referred to "any misdemeanour" rather any "indictable offence". It was amended by the Criminal Law Act 1977 on the abolition of the distinction between the previous categories of felonies and misdemeanours. Prior to the abolition of that distinction, the substantive law about who could be convicted of an offence as a secondary party was the same for felonies and misdemeanours, but for historical reasons the terminology was different in cases of felony (which included murder). There were three categories of person who could be convicted of a felony: principals in the first degree, principals in the second degree and accessories before the fact. A principal in the first degree was ordinarily the person who actually carried out the conduct element of the offence (in murder the killing) with the necessary mental element. (There might be more than one principal in the first degree if two or more persons each carried out part of the conduct element with the necessary mental element.) A principal in the second degree was someone who was present aiding or abetting the actual perpetrator of the felony at the very time when the felony was committed. An accessory before the fact was defined by Hale in his Pleas of the Crown (1682) vol 1, page 615, as a person who:

"being absent at the time of the felony committed, doth yet procure, counsel, commend or abet to commit a felony."

44. The language of section 8 was consistent with a line of earlier statutes. Not all were identically worded, but Foster commented on them in his Crown Law, re-published 3^rd ed (1809), at pages 130-131:

"Some statutes make use of the word accessaries, singly, without any other words descriptive of the offence. Others have the words, abetment, procurement, helping, maintaining and counselling, or, aiders, abettors, procurers, and counsellors. One describeth the offence by the words, command, counsel, or hire, another calleth the offenders, procurers, or accessaries. One, having made use of the words, comfort, aid, abet, assist, counsel, hire, or command, immediately afterwards in describing the same offence in another case, useth the words counsellors, and contrivers of felonies; and many others make use of the terms counsellors, aiders, and abettors or barely aiders or abettors.

From these different modes of expression, all plainly descriptive of the same offence, I think one may safely conclude, that in the construction of statutes, which oust clergy in the case of participes criminis we are not to be governed by the bare sound, but by the true legal import of the words; and also, that every person who cometh within the description of these statutes, various as they are in point of expression, is in the judgment of the legislature an accessary before the fact; unless he is present at the fact, and in that case he in undoubtedly a principal."

45. This history is relevant because it shows that for centuries secondary liability has attached to a person who aided or abetted another to commit an offence but was absent at the time of the offence. This was why he was termed an "accessory before the fact". To abet was to assist or encourage but the word has become archaic. The Law Commission in its report on Participating in Crime (2007) Law Com 305, paragraph 2.21, accurately summarised the effect of the language of section 8 of the Aiders and Abettors Act:

"Disregarding 'procuring', it is generally accepted that these specified modes of involvement cover two types of conduct on the part of D, namely the provision of assistance and the provision of encouragement."

46. The narrowing of the law for which Mr Wood contended in his first submission is unsupported by authority and would be wrong in principle. Mendez and Thompson is no authority for such a proposition. It is one thing to say that D cannot be liable as an aider or abettor unless P acted with D's assistance or encouragement when he committed the offence. It is quite another to suggest that the act or words providing the assistance or encouragement must be performed or said at the moment of the commission of the offence. Such a limitation would exclude, for example, a person who supplied a murder weapon in advance of the crime knowing the purpose for which P wanted it. The law would be defective if an aider and abettor could escape liability by seeing that there was a gap in time between his conduct and the conduct of P.
47. Mr Wood's alternative submission comes to the same result but is expressed in terms of causation and remoteness. The first part of paragraph 18 of Mendez and Thompson, on which Mr Wood relies, has proved to be controversial, with most academic commentators expressing either criticism or caution, although the opening words have to be read with what was said in the whole of paragraphs 18-23. The analysis set out in those paragraphs is consistent with the approach suggested by the Law Commission in its report on Participating in Crime, paragraphs 2.30–2.34, under the heading "Causation, connection and secondary liability".
48. It is well established that D's conduct need not cause P to commit the offence in the sense that "but for" D's conduct P would not have committed the offence (see Mendez and Thompson at paragraph 23). But it is also established by the authorities referred to in Mendez and Thompson that D's conduct must have some relevance to the commission of the principal offence; there must, as it has been said, be some connecting link. The moral justification for holding D responsible for the crime is that he has involved himself in the commission of the crime by assistance or encouragement, and that presupposes some form of connection between his conduct and the crime. The Law Commission observed at paragraph 2.33:

"However, the precise nature of this sufficient connection is elusive. It is best understood, at least where D's conduct consists of assistance, as meaning that D's conduct has made a contribution to the commission of the offence".

49. In a case of encouragement, as contrasted with assistance, the Law Commission suggested that the encouragement "must have the capacity to act on P's mind". The way that the court put it in Mendez and Thompson was that D's conduct must (objectively) have constituted assistance or encouragement, even if P (subjectively) did not need assistance or encouragement. Whereas the provision of assistance need not involve communication between D and P, encouragement by its nature involves some form of transmission of the encouragement by words or conduct, whether directly or via an intermediary. An un-posted letter of encouragement would not be encouragement unless P chanced to discover it and read it. Similarly, it would be unreal to regard P as acting with the assistance or encouragement of D if the only encouragement took the form of words spoken by D out of P's earshot. The Law Commission gave the example of words shouted by D, a football spectator, in a large crowd some distance away from an incident on the pitch involving P (paragraph 2.36).
50. If D provides assistance or encouragement to P, and P does that which he has been encouraged or assisted to do, there is good policy reason for treating D's conduct as materially contributing to the commission of the offence, and therefore justifying D's punishment as a person responsible for the commission of the offence, whether or not P would have acted in the same way without such encouragement or assistance.
51. Whether D's conduct amounts to assistance or encouragement is a question of fact. Professor Glanville Williams commented in Criminal Law: The General Part (1961) 2^nd ed, at page 356, that it is sometimes difficult to know what degree of assistance is to be regarded as aiding. Several centuries of case law have not produced any definitive legal formula for resolving that question. This is unsurprising because the facts of different cases are infinitely variable. It is for the jury, applying their common sense and sense of fairness, to decide whether the prosecution have proved to their satisfaction on the particular facts that P's act was done with D's assistance or encouragement (subject to the qualification that if no fair-minded jury could properly reach that conclusion, the judge should withdraw the case).
52. There may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P's act as done with D's encouragement or assistance. Writing in the days of highwaymen, Foster gave the following example in his Crown Law, re-published 3^rd edn (1809), at page 354:

"A, B and C ride out together with the intention to rob on the highway. C taketh an opportunity to quit the company, turneth into another road, and never joineth A and B afterwards. They upon the same day commit a robbery. C will not be considered an accomplice in this fact. Possibly he repented of the engagement, at least he did not pursue it; nor was there at the time the fact was committed any engagement or reasonable expectation of mutual defence and support so far as to affect him."

Foster took the example from the case of Hyde (1672), heard at Newgate, which Hale cited more fully in his Pleas of the Crown, vol 1, page 537. (Hale's account of the case states that C parted from the company at Hounslow and that the robbery occurred 3 miles away.) Hale explained the decision in the same way as Foster.

53. The principle underlying that case must apply with equal if not greater force to a spontaneous joint enterprise. Suppose, for example, that D started to join in chasing V with hostile intent, but quickly thought better of it and stopped. The law would be unjust, Mr Wood submitted, if it held that D would automatically be guilty of whatever violence was inflicted on V by the others who continued to pursue him. We agree. In the present case, according to Chantelle's evidence, there were a number of people who at an early stage began to chase Bones down the ginnel, but apparently soon thought better of it and returned to their homes before Bones was chased round the circuit, disarmed and attacked by McPhee in the circumstances which have been described. Such limited action on their part would not properly have founded a case that they were guilty of murder. There would have been no adequate basis for concluding that McPhee attacked Bones with their assistance or encouragement.
54. The appellants' involvement was far greater. The jury's verdicts mean that they must have been satisfied that the appellants knew that McPhee was armed with a knife; that they intended that Bones should be caught and made to suffer at least really serious injury; and that they foresaw that McPhee might use the knife to do so. Bones was known to be armed with a baseball bat and well capable of defending himself if the odds were equal. With that knowledge and intent the appellants joined McPhee in a sustained chase. At some point Bones was disarmed. The distance in time and place between the events recorded on the CCTV footage and the infliction of the stab wounds was small. It was a continuing sequence of events.
55. In those circumstances there was ample evidence on which it was open to the jury to conclude that McPhee was encouraged and assisted in the attack which he carried out on Bones by the conduct of the appellants in joining in the chase. McPhee had the comfort and spur of knowing that he was not on his own, but had the support of the appellants and the reasonable expectation that they would come to his aid if he needed it. We reject the argument that the judge ought to have directed the jury that the appellants' conduct in chasing Bones (with the requisite mental element) could not be sufficient for them to be convicted of murder.
56. The other criticism of the judge's legal directions is that it lacked clarity. This was of some concern to the full court which granted leave to appeal. The judge's directions were couched in terms of joint enterprise, no doubt because that was the language in which the prosecution had presented the case. That led the judge to have to give directions about what potentially constituted participation in a joint enterprise.
57. Joint enterprise is not a legal term of art. In Mendez and Thompson the court favoured the view that joint enterprise as a basis of secondary liability involves the application of ordinary principles; it is not an independent source of liability. Participation in a joint criminal adventure involves mutual encouragement and assistance.
58. It would have been sufficient for the judge to have directed the jury that the prosecution had to prove against each appellant that by words or conduct he assisted or encouraged McPhee to go after Bones and attack him, with the intention which the judge explained and with the knowledge and foresight about McPhee's possession and use of a knife which the judge also explained.
59. That is not to imply that the judge was wrong to express his direction about the conduct element in terms of participation in a joint enterprise. His general direction contained the essential components. It may be unfortunate that, after giving the general direction which he did in the early part of his summing-up, he came back to the subject at the beginning of the second day of his summing-up, but we would not criticise the judge on that account because he acted at the request of counsel for the defence. The passage which he read, as drafted by counsel, was not a model of clarity, and it is possible that it led to the jury's request for a further direction. In response to that request, the judge might have said that by participation in furtherance of the joint enterprise he meant words or conduct by which the appellant whose case they were considering assisted or encouraged McPhee to go after and attack Bones, intending that he should suffer death or really serious injury and with the knowledge that McPhee might use a knife for that purpose. However, the direction which he gave included the words "encouragement by words or actions" and listed the conduct alleged by the prosecution, all of which could have been regarded as assistance or encouragement. In our judgment it focused the minds of the jury appropriately.
60. Complaint is made that the early part of the direction was too long and that the supplemental direction in answer to the jury's enquiry was too short. Although the initial directions ran to several pages of the transcript and contained some individual sentences which might be criticised for lack of clarity, overall it made plain the essential ingredients in a form which had been agreed with counsel. We do not think that the jury would have been helped in answer to their enquiry by a lengthy further direction.

The judge's summing-up on the facts

61. Subject to a discrete point about the evidence of Longbottom, Mr Wood made no criticism of the judge's summary of the facts until he came to deal with the events in Middle Lane. Mr Wood submitted that at that point the summing-up became unbalanced, in that the judge summarised in some detail the evidence of the prosecution witnesses but gave only a brief outline of the appellants' evidence and omitted altogether to refer to the evidence of Yasmin Bell. There was a good deal of confusion and contradiction in the evidence of the prosecution about what happened at this stage, and in referring to their evidence the judge identified the discrepancies. This was proper, and he would have been criticised if he had not done so. He summarised the appellants' evidence in this way:

"The defendants say this was a one on one fight, they did not know until the very last moments that Jason McPhee had a knife and they just thought it was a fair one on one fight with them spectating and not intervening or doing anything except calling Jason off, and latterly the young Stringer trying to pull Jason off and indeed succeeding. It was only at the very last moment when the slashing of the face happened that they were aware that Jason McPhee had a knife. In effect the defendants are saying this, everybody in Middle Lane didn't want this to happen apart from Jason McPhee."

62. That was a fair and clear summary. The jury can have been in no doubt about what the appellants were saying as to their involvement in the events which took place in Middle Lane.
63. It is correct that the judge did not remind the jury of the evidence given by Yasmin Bell about what happened in Middle Lane. He began the final part of his summing-up by reminding the jury that they had heard evidence from nine people about what went on in Middle Lane. He listed the witnesses, including Yasmin, and said that he was going to look briefly at those nine pieces of evidence. He then reminded the jury of the evidence of the other eight witnesses, but not that of Yasmin. It would seem that this must have been an oversight, which was not noticed by any counsel at the time. The judge had previously reminded the jury of her evidence about earlier events. Mr Wood acknowledged that Yasmin was not an independent witness, because she was Stringer junior's partner, but that went to weight and not relevance. As it happened, Yasmin was the final witness and therefore whatever impact she may have made on the jury would have been still relatively fresh.
64. Overall the summing-up was detailed and fair. The judge set out clearly the nature of the appellants' case, and we do not consider that the omission to remind the jury that their account of events in Middle Lane was supported by Yasmin affects the safety of the convictions.
65. The criticism made in relation to the evidence of Longbottom is that the judge went into it in too great detail, whereas he should have played down the significance of Longbottom's evidence since his statements had been read to the jury. The judge gave the jury full and clear directions about the caution with which they needed to approach his evidence. We do not consider that this complaint has any substance and Mr Wood has realistically accepted that it would not in any case be sufficient on its own to affect the safety of the convictions.

Conclusion

66. The appeals are dismissed.