O'Flaherty & Ors, R v

These are the appeals of Errol Carlton O’Flaherty, Phillip Junior Ryan and Mitchell Paris Toussaint. They exemplify some of the difficulties facing judges in giving comprehensive and comprehensible directions on joint enterprise, hardly less daunting than performing the same task for provocation.

On 21 March 2001 a young man called Marcus Hall and about 15 of his friends travelled from Peckham in South-East London to Luton. The group was known as "The Peckham Boys". Ostensibly they had gone to Luton to hear a band called "So Solid Crew" play in a nightclub called Atmospheres. They did not arrive at the club until the concert was nearly over. There were suggestions that they had gone to Luton not to enjoy music but to cause trouble. Be that as it may, by the end of the night Marcus Hall was dead. He was eighteen years of age.

The Peckham boys were refused entry to the club; but by one means or another some of them managed to get it. Others waited outside. Inside were the appellants and their friends. The event ended at about 2.00am and everyone came out into the street.

Much, but not all, of what happened in the ensuing very short space of time was captured either on the local authority CCTV cameras or on a video recording taken by a member of the public.

Atmospheres is on the corner of Flowers Way and Chapel Street. The first direct physical contact between the two factions seems to have occurred in Chapel Street when some from Hall’s group became involved with two men from what might loosely be called the appellants’ group. In the latter was Jermaine James, a friend of O’Flaherty. James was pursued along Flowers Way by a number of men one of whom was wielding a big stick. At about the same time the deceased and four or five others were chasing a man called Leon Hendrickson and another also along Flowers Way. It would seem that Hall was carrying a baseball bat.

Meanwhile O’Flaherty learnt that Jermaine James had been seen being chased by a group of men carrying weapons. He decided to go to his aid. O’Flahertyhad travelled to Luton in a stolen car. O’Flaherty looked in the boot of the car for a suitable weapon and came across a cricket bat. He claims not to have known it was there.

Soon after O’Flaherty met Marcus Hall and others from his group. Hall had the baseball bat. Others in the group had weapons of one sort or another. O’Flahertyhad the cricket bat. O’Flaherty wanted to know what had happened to James but his enquiry was met with abuse and a volley of beer bottles which he was able to avoid. There was an exchange of blows between O’Flaherty and Hall. It is not clear whether or not any connected. Nor is it entirely certain but seems probable that O’Flaherty backed away.

By this time Mitchell Toussaint had become involved. He took up a position on O’Flaherty’s right hand side and on the video he is clearly seen to be holding a claw hammer. Hall then struck further blows at O’Flaherty. O’Flahertyresponded by striking out with the cricket bat. Phillip Ryan joined in by trying to hit Hall with a beer bottle. Toussaintthrew the claw hammer at him.

The incident then moved on from Flowers Way and into Park Street West. Hall is to be seen in the middle of that street on the ground surrounded by a number of men. O’Flaherty advanced to within a few feet of the prone body. He was still holding the cricket bat but is not seen to use it again and was the first to move away from the scene. It was common ground that Ryan and Toussaint did not enter Park Street West.

By this time Hall had received fatal injuries. There were a number of stab wounds to his back, three of which penetrated the lung. There were slash wounds to his face and he sustained a fractured skull with subarachnoid and subdural bleeding. He was taken to hospital where he was pronounced dead. The whole episode lasted no more than two minutes.

Throughout the events that we have described relating to the three appellants it will be understood that there was continuing violence between many others the detail of which does not concern this Court.

On 21 April 2001 O’Flaherty was arrested on suspicion of murder. He said "I know nothing about that". He said that he had been hit on the head twice and had picked up the cricket bat which someone had left there. He had got a lift home and had thrown his leather jacket away. He denied that he had hit out at anyone. He was interviewed for a second time after he had seen some of the video and agreed that it appeared that he had hit someone. However, he could not recall hitting anyone. He said that he did not know how he had come by the bat but he accepted that the bat had made contact with the back of somebody and that his previous account had been untrue. He said that he did not know who had had the hammer. He denied that he was close to Mason (who was alleged to have stabbed Hall) and had not seen him for about two months.

In a third interview O’Flahertysaid nothing about looking after his friend Jermaine James. In a later interview still, he said that he did not touch the deceased in Park Street West, that he had just come round the corner, walked over and said "Just stop it". He said that he did not recognise anyone in Park Street West and that after he and the deceased had squared up to each other in Flowers Way he had run up the street from instinct and was just following the crowd. He denied causing any of the stab wounds, cuts or the injuries to the head.

Ryan was arrested on 26 April. He said that he did not know who was fighting and that after getting something to eat had got a lift away from the scene. Later he said that he had walked through the crowd until he reached the front and then stood watching. He agreed that he could see weapons but did not know who was holding them. He agreed that he recognised O’Flahertyand denied that he (Ryan) had been involved in any fighting in Flowers Way.

To begin with Toussaint made a witness statement which he later acknowledged was inaccurate as to the clothing he had been wearing, as to leaving the club alone and to seeing a group chasing the two Jermaines. He said that he was not wearing his contact lenses. When interviewed under caution he declined to make any comment.

Other defendants who are not concerned in this appeal were Marlon Damien Mason, Kimani Devante Vassell and Leon Licorish. In due course they were arrested and interviewed.

In his interview Mason said that he could remember very little of the evening. He did not know Atmospheres nor could he remember what the event was to which he had gone. He denied that he could be seen on the video or that he was the man wearing a white shirt and jacket. He was not the man who could be seen bending over the deceased’s body with a knife in his hand.

Vassell denied being in either Flowers Way or Park Street West and said "no comment" when asked if he knew any of the appellants.

Licorish admitted being in the group that chased the deceased. He said that the deceased had fallen over and that a number of people had hit him. He said that he had kicked him two or three times in the legs but had not intended to cause him serious harm.

There was a considerable volume of medical and pathological evidence but no unanimity as to the proper conclusion. This survey is distilled from the reports and the evidence given at trial.

Dr Al-Sarraj, a consultant neuropathologist, found what he described as trauma blood between the second and third layers of the brain of the deceased. This was caused, he thought, by a blow in the mild to moderate category. There was no bleeding within the brain which would have been expected if there had been deeper damage. He described four areas of haemorrhage which could have resulted from one incident of trauma. He considered that it would have taken about 90 minutes from the moment the lungs ceased to act properly for the brain to be affected. He was of the view that the head injury was not fatal in itself but could have been a contributory cause of death.

The post mortem conducted by Dr Carey revealed the following findings:

Blunt impact injuries to the face which could have come from a foot or impact with the ground.

A cut on the left cheek as far as the ear probably caused by a light sweeping action with a single object.

An injury to the left ring finger which was probably a defensive injury.

A group of nine stab wounds to the body the deepest of which was 6cms and travelled in a downwards direction. Two of these wounds had caused the lungs to collapse.

A horizontal fracture of the skull at the back of the head. This was a star shaped split to the skull caused by significant impact from blunt force either from an object or contact with the ground. Dr Carey said that such injury was commonly encountered as a result of a fall.

There was no tramline bruising on any part of the body which could have been caused by, for example, a cricket bat.

Dr Carey described what would be the likely consequences following the functioning of the lungs being compromised. The two most serious stab wounds and a further stab wound would have caused serious bleeding and had made a significant contribution to death. The effects of the wounds described would have been progressive. At first the deceased would have been able to run, then only to walk and then would have collapsed. Ultimately he would not have been able to get enough oxygen into the blood. He would then have died. The deeper stab wounds would have required more force than the others, and would probably have been inflicted in quick succession from one knife but Dr Carey could not rule out the use of a second knife.

Having considered his own findings in conjunction with those of Dr Al-Sarraj, Dr Carey was of the opinion that:

the head injury alone was unlikely to have caused death. It could, however, have contributed to the death by inducing or contributing to unconsciousness which then would have made the deceased more vulnerable to airway obstruction and lack of oxygen. The totality of the impact to the head had caused injury and that injury had contributed to the deceased’s state of collapse. It was not surprising that the deceased had been able to continue running until he collapsed.

The effect of the stab injuries was progressive but they had not killed him by the time he arrived at hospital. The deceased’s state in the street was consistent with the combination of the stabbing and the repeated blows to the head. The cluster of stab wounds was consistent with the deceased being upright or nearly upright when they were inflicted. They could possibly have been delivered in rapid succession. They were not consistent with being caused whilst the deceased was on his back on the ground unless he had been on the ground at an earlier stage. Dr Carey did not consider that the cause of death could be limited to the stab wounds alone. He conceded that he might have been stabbed in more than one place. The subarachnoid haemorrhage was due to trauma from either a fall or blunt impact damage and was likely to have derived from whatever it was that caused the injuries to the side and back of the head. He could not therefore rule out head injuries as the cause of the unconsciousness.

Dr Rouse’s opinion was that the effect of the stab wounds was of more significance than were the head injuries. The head injury was significant but it was not such that would normally lead to death. The cause of death, he considered, was multiple stab wounds. They could have been survivable with speedy medical attention. He did not feel that the head injury added much and was, in reality, a consequence of the stab wounds. The deceased had been stabbed. That had caused a collapse and in the ensuing fall the deceased had sustained the injury to his head.

And Dr Jarrett concluded that the head injury had not caused the death nor made any significant contribution to it. There was no evidence of any brain swelling which might have been expected if the head injury had been the cause of death. Whilst he agreed that it was possible that the head injuries could have occurred at either or both locations he thought that it was more likely that they were inflicted in Park Street West than when O’Flahertywas wielding the cricket bat. The deceased had not been unconscious in Flowers Way but, of course, had been unconscious in Park Street West. He did not particularly favour the theory that the fractured skull occurred during a fall but preferred the view that it was caused by a blow to the side of the head. He could not say to what degree the head injury had contributed to the death. He considered that it was more likely than not that the stabbing occurred right at the end of the incident because of the absence of any trail of blood and because the stabbing injuries would have been likely to make him collapse fairly rapidly.

To complete the scientific evidence; there was blood on the cricket bat which came from O’Flaherty and a blood stain on Toussaint’ssleeve which could have come from O’Flaherty.

These appellants and the other defendants were tried at The Central Criminal Court before His Honour Judge Barker QC and a jury.

The evidence was as set out above.

It will be apparent from what we have said already that the Crown were not in a position to prove conclusively what had been the cause of death or where the fatal injuries had been inflicted.

At the close of the Prosecution case it was submitted on behalf of the three appellants that the Learned Judge should rule that there was no case fit to go to the jury. Those submissions were rejected. Each appellant then gave evidence.

O’Flaherty, described the events earlier in the evening. He said that he had learnt that Jermaine James was being chased by boys with bats. He decided to find him. He looked in the car for something to use and found the cricket bat. He then went to Atmospheres. Very soon an armed group came round the corner. He was outnumbered. The group began to attack him by throwing bottles. Hall, who was part of this group, came at him and hit him with what O’Flaherty described as a bat. A second blow with the bat followed and O’Flahertytried to hit him in order to get away. He did not know if any of his blows landed and he was not aware if either Toussaint, Ryan or indeed, Mason, were in the vicinity. Out of instinct, he followed the group that was running up Flowers Way. He had the bat for protection. He did not see a hammer and was not aware that anyone had a knife. He said that when he emerged from the covered way - clearly visible on the video - he had no aggressive intent. He said that he saw the positions in which people were and that there was someone on the ground whom he did not know. He spoke of a number of people striking at the body on the ground. The closest he got to the prone body could be seen on the video. He did not join in the violence and did not appreciate the extent of the injuries inflicted. He admitted that soon afterwards he threw away the cricket bat. He asserted that he had not known that the person who was on the ground was the same person as had struck him. He said that he was unaware that someone had died. There was no agreement between anyone that there would be any further assault on the deceased and he was not a party to whatever happened in Park Street West. He had neither instigated nor encouraged anything.

Ryan admitted that he was in possession of a bottle. A bottle had hit him. He picked it up intending to throw it back. He said that he felt he ought to intervene because O’Flaherty had been hit on the head. He aimed three or four blows at Hall’s head and then the bottle fell from his hand. He then retreated saying that he was not going to get further involved. He had no intention of killing or harming anyone. He agreed that he had lied during the interview when he said that he had not realised who he was fighting. He said that he was not thinking straight.

Toussaint agreed that O’Flaherty was an acquaintance and that he saw Ryan about twice a week. Others, were known to him but he did not know Licorish. He said that he was a bit affected by drink but not drunk. He had noticed a group of people with sticks chasing Jermaine James. He was then hit by an object on the back of the leg. It was a hammer so he picked it up. He saw that O’Flaherty was under threat and about to be attacked. Bottles were being thrown so he went over to help. Someone he could not identify - but it is to be presumed that this was Hall - swung a baseball bat at him. He was caught on the head two or three times. He accepted that he might have struck Hall on the back with the hammer. Hall had then run away and Toussaint accepted that he threw the hammer at him. That, so far as Toussaint was concerned, was the end of the incident and he did not follow the others into Park Street West. He was not aware of anyone having a knife. He had lied to the police because he was scared.

The judge provided written directions on the law and what are described as "Steps to verdict".

Verdicts were returned on 4 July 2002. In the event all three appellants were convicted of murder and of violent disorder. O’Flahertywas also convicted of common assault.

O’Flaherty and Toussaint were each sentenced to life imprisonment with three years’ imprisonment concurrent for the violent disorder. O’Flahertywas further sentenced to three months’ imprisonment concurrent for the common assault. Ryanwas sentenced to custody for life for the murder with three years’ concurrent for the violent disorder.

The other defendants were all convicted of murder. All three were also convicted of violent disorder, Mason and Vassell by the jury and Licorish following a change of plea. Mason was also convicted of an offence of wounding Cedric Mukendi with intent.

The single judge has granted leave to appeal.

The grounds of appeal are based solely on criticism of the way the Judge dealt with the consequences that what had started in Flowers Way having moved to Park Street West. Mr Grunwald QC, Mr Spencer QC, and Mr Coffey QC for O’Flaherty, Ryan and Toussaint, respectively submit that the conviction is unsafe because the Judge erred (a) in ruling that O’Flaherty, Ryan and Toussaint had a case to answer and (b) in directing the jury that they should only consider the question of cause of death if they concluded that there may have been two separate incidents or events as opposed to one continuing incident or event. They submit there was no satisfactory evidence from which the jury could conclude that head injury was an additional cause of death because such a head injury would have resulted in Hall collapsing almost immediately. There was no satisfactory evidence from which the jury could conclude that any injury causative of death occurred in Flowers Way. Ryan and Toussaint left the affray in Flowers Way once Hall ran clear of the fight. They were not part of the pursuing party and were not present in Park Street West when Hall was stabbed. Mr Spencer and Mr Coffey submit that it cannot be inferred from what had happened in Flowers Way that Ryan and Toussaint intended or foresaw what would happen in Park Street West where a knife, a weapon of a different and lethal nature, was used. O’Flaherty was present in Park Street West but Mr Grunwald submits there was no evidence that he participated in the violence in Park Street West or from which the jury could infer he knew that Mason had a knife or would use it.

The Single Judge gave leave in respect of the adequacy of the directions to the jury, but not in respect of the ruling that there was a case to answer. The application based on the submission that the Judge should have withdrawn the murder count was renewed before us. It was submitted that the evidence was not such as could enable a jury, properly directed to conclude that O’Flaherty, Ryan and Toussaint were participants in murder. We consider that this point is arguable in the cases of Ryan and Toussaint, but not in the case of O’Flaherty who followed the group and Hall to Park Street West carrying the cricket bat and was present while Hall was being assailed.

The Judge discussed the terms of his proposed directions with counsel. There was extensive discussion as to the guidance to be given as to causation and joint enterprise. All counsel agreed that a central issue for the jury to decide was whether this was one incident or two. For the reasons we give below the centrality accorded to whether there was one incident or two may have deflected attention from the issue of withdrawal. The Crown’s position, stated during the course of this discussion and on the appeal is that if the injuries which contributed to death were inflicted before a particular defendant joined in, that defendant could not be guilty of murder. Once, however, a person has taken part in a joint enterprise with an intention to cause really serious harm the Crown’s position is that it matters not that at some stage that person takes no further part in the action because he has joined in a joint enterprise and it is often a question of luck whose blows actually cause the death. The Crown submits that only if the jury concluded that there were two distinct incidents was it necessary for them to consider the evidence as to when injury was or was likely to have been occasioned. The distinction was crucial because in this case, as Mr Coward recognised, the Crown could not show that Hall suffered an injury in Flowers Way which significantly contributed to his death. But Mr Coward submitted it should not be assumed that the fatal injuries were inflicted in Park Street West. The reality was that there was no objective evidence when the fatal injuries were inflicted, i.e. whether they were inflicted on Park Street West or on Flowers Way. Those representing these appellants submit that even if there was one evolving incident, the jury should have been directed to consider whether a defendant had withdrawn before the infliction of any injury which contributed to and was thus a cause of death.

As we have mentioned, the jury was furnished with written directions in respect of count 2, the charge of murder, and with documents setting out the "steps to verdict" in respect of each defendant. The written directions including those on joint responsibility were also read out during the summing up (Vol. III, pages 32-40), albeit with some minor and non-significant alterations. The material parts of the written directions in respect of count 2 stated:

This aspect of the directions was not challenged. The Appellants’ criticism focuses on paragraph 14 of the directions which reads:

Mr Coward submits that the central question was whether the Crown had made the jury sure that the events of the night in question were all one incident. In convicting all six defendants of murder, the jury must have been sure it was all one incident and that Hall’s death was the result of the totality of the unlawful violence inflicted on him. In his submissions to the learned trial judge, he relied on R. v Grundy (1989) 89 Cr. App. R. 333 in which G joined an attack by his co-defendants but it could not be said whether the victim’s nose had been broken before or after he had joined the attack. G had argued that the broken nose was the relevant serious injury and the trial judge’s directions were that it was the totality of the injury suffered which could amount to grievous bodily harm if the jury so thought and it did not matter that the attack by Grundy’s co-defendants began a few seconds before he joined in. It was thus, Mr Coward submitted, the totality of the injuries inflicted on Hall which mattered, subject to the qualifications drawn to the attention of the jury in paragraph 14 of the written directions and in the summing up Vol. III page 40. The Judge’s directions reflected this submission.

As the Judge’s directions stated, in the circumstances of this case for an individual defendant who did not directly inflict the fatal injuries himself to be guilty of murder the jury had to be sure (a) that the individual defendant joined in the unlawful use of violence which caused the fatal injury or injuries, and (b) either shared with the person who inflicted the injury or injuries from which death resulted, the intention to kill or cause really serious harm or foresaw that that person, with whom he had joined forces, might inflict such really serious harm with an intention to kill or cause really serious harm. It is submitted on behalf of the appellants that the Judge should have made it clear to the jury that irrespective of whether there were one or two incidents they should determine which injuries brought about Hall’s death, where those injuries took place, and whether the particular appellant played his part in causing those injuries. Moreover, they submit that it cannot be inferred from what had happened in Flowers Way that the appellants intended or foresaw what would happen in Park Street West where a knife, a weapon of a different and lethal nature, was used.

There are thus two specific issues concerning the scope of the joint enterprise. The first is the adequacy of the direction to the jury as to whether the actions in Park Street West and the use of a knife were of a wholly different type to the attack in Flowers Way. The second is whether, even if the events were to be regarded as one evolving incident, the jury should have been directed to consider in the case of each defendant whether he had withdrawn from the incident before the infliction of any injury that contributed to the death.

Before turning to these two issues, we observe that it may be helpful to consider the way in which the scope of a joint enterprise should be ascertained and the relationship, if any between the scope of a joint enterprise and the concept of disengagement or withdrawal.

In this case there was no pre-arranged plan but spontaneous violence by a group who jointly attacked common victims and the "enterprise" arose on the spur of the moment. In many such cases the scope of the joint enterprise will be ascertained by considering the knowledge and the actions of those participating; what was it that a particular defendant had joined up to? Mr Grunwald submitted that we should do so in this case. In R v Uddin [1999] 1 Cr. App. R. 319, 328 this Court stated that in such a case each of those participating intends severally to inflict serious harm by any means at their disposal and giving no thought to the means by which the others will individually commit similar offences on the same person.

In the instant case, did the pursuit as well as the initial fight in Flowers Way fall within the joint enterprise? In view of the short time between the outbreak of violence in Flowers Way and its conclusion in Park Street West, and the general nature of this sort of street violence, one can see how the pursuit might legitimately be regarded as an incident of the attack. In the case of O’Flaherty a joint enterprise involving pursuit can be identified from his action in going with Hall’s pursuers as he ran away. In the case of those who, like Ryan and Toussaint, took no part whatsoever in the pursuit, however, the pursuit can only be said to fall within the scope of the joint enterprise by considering more than the actions of the participants. In the absence of a prior agreement or knowledge it is difficult to regard Ryan and Toussaint as part of a joint enterprise involving pursuit because, unlike O’Flaherty, they did not go with those who pursued Hall to Park Street West. If the joint enterprise to which their conduct made them a part did not involve pursuit, then the question of "withdrawal" (which we consider later in this judgment) does not arise; the question is whether they actively joined in the pursuit and what ensued. Clearly Ryan and Toussaint did not actively join in the pursuit and what ensued.

Is there, moreover, any relationship between the scope of the joint enterprise and withdrawal or disengagement? In R v Perman [1996] 1 Cr. App. R. 24, this Court commented (at p. 34) that saying that the appellant had withdrawn may be no more than another way of saying that the crime (in that case it was a second robbery) was outside the scope of the original joint enterprise. It is possible that the distinction between "one event" and "two events" that formed the focus of Counsel’s submissions and of the discussions between Counsel and the Judge as to the direction to be given on joint enterprise and causation was a way of addressing the "scope of the joint enterprise", although it does not do so directly.

With that by way of background we turn to the two issues raised in the appeal. As to the first, it is submitted on behalf of these appellants that there was no evidence they knew Mason had a knife, had used it in Flowers Way, or might use it in Park Street West. Accordingly it is submitted there was no evidence that they intended or foresaw the use of a knife. The appellants rely on the propositions laid down by the House of Lords in R v Powell and R v English[1999] 1 AC 1 and by this Court in R v Uddin [1999] 1 Cr. App. R 319 at pp 328-329 concerning foresight of the use of a lethal weapon such as a knife, by those engaged in a fight using weapons such as a cricket bat, a claw hammer and a bottle as in the present case. They submit that the actions of those wielding knives in Park Street West were actions of a type entirely different from actions which they foresaw as part of the attack in Flowers Way.

In R v English Lord Hutton accepted the submission that to be guilty "the secondary party must foresee an act of the type which the principal party committed, and that in [that] case the use of a knife was fundamentally different to the use of a wooden post": [1999] 1 AC 1, 28 C-E. At p 19D-E his Lordship said that he considered that in R v Smith (Wesley)[1963] 1 WLR 1200 the Court of Appeal recognised that "the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon". In R v Uddin this Court stated that in deciding whether the actions of one participant are entirely different from actions which the others foresaw, "the use by that party of a weapon is a significant factor. If the character of the weapon, e.g. its propensity to cause death, is different from any weapon used or contemplated by the others, and if it is used with a specific intent to kill, the others are not responsible for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon": [1999] 1 Cr App R 319, 328G. The Court also stated (ibid at p. 329E-F) that "the mere fact that by attacking the victim together each of them had the intention to inflict serious harm on the victim is insufficient to make them responsible for the death of the victim caused by the use of a lethal weapon used by one of the participants with the same or shared intention".

We do not accept the submission that there was no evidence upon which the issue of foresight of the use of a knife could properly have been left to the jury. There was evidence that Mukendi was stabbed in Flowers Way, albeit not by any of those now before this Court, and Mukendi’s evidence was that Hall was in difficulties by the end of Flowers Way. We do not, moreover, consider that the direction of the judge can be criticised in this respect. He directed the jury as to the issue of foresight of weapons of a different nature and whether the production and use of such weapons was so different to the common purpose as to go beyond its scope (see paragraph 9 of the written directions set out earlier in this judgment). His direction is manifestly in accordance with the principles set out by Lord Hutton in R v. Powell and R v English and by this Court in R v Uddin.

In view of the submissions made to us we add that it is for the jury to decide in every case whether what was done was part of the joint enterprise or went beyond it. Prior to the decision in Powell and English, while knowledge by one party that another had a lethal weapon was very significant and in many cases decisive, it was clear that this was so as a matter of evidence, not law. For example, in R v Roberts[1993] 1 All ER 583, at 590 Lord Taylor CJ stated:

Mr Coward urged us to regard the issue of whether a different kind of weapon has been used and whether it takes the matter outside the scope of the joint enterprise as a matter of fact for the jury and not a matter of law. He submitted that the statements in Powell and English and Uddin about types of weapons should not be seen as reflecting principles of law as opposed to questions of evidence. The Judicial Studies Board Specimen Direction in relation to the scenario in R v English treats the question whether use of a knife is fundamentally different from any act which the Defendant realised the principal might do as a question of fact for the jury. The principles set out in Uddin are not stated to be principles of law as opposed to matters of evidence, and it would be unfortunate if they crystallised as such. The result would be the creation of a complex body of doctrine as to whether one weapon (for instance a knife) differs in character from another (for example a claw hammer) and which weapons are more likely to inflict fatal injury. We note that in his commentary on R v Powell and R v English Sir John Smith stated "[i]f B intends or foresees that A may act with intent to kill, it seems immaterial that he does it by one means rather than another. Unlike gbh, there are no degrees of death": [1998] Crim. L. Rev. 48, 50. Sir John also considered that the proposition distilled by Lord Hutton from Smith (Wesley)

We turn to the second issue; the significance to be attached to whether what occurred was one continuing event or amounted to two separate events. The Crown recognises that a person who joins in after the fatal injury or injuries have been inflicted must be found not guilty of murder because he was not a party to any unlawful violence that caused the fatal injury or injuries. The Crown, however, considers that once party to a joint enterprise, unless the event causing the fatal injury or injuries is separate from the event into which the individual joins, it matters not that at some stage the individual defendant takes no further part in the action. Mr Coward argued that the offence was complete when the Appellants decided to teach Hall a lesson and armed themselves. In the case of an incident lasting a couple of minutes, he suggested it was dangerous to focus on the precise point at which the fatal injuries were inflicted. This reflected his submission to the judge that, on the basis of R v Grundy (1989) 89 Cr. App. Rep. 333, what had to be considered was the totality of the injuries. Before us Mr Coward submitted that once a person has joined an enterprise with the requisite intention or foresight there is no way out, however clear that person’s disengagement or withdrawal, unless the fatal injury that is subsequently inflicted is part of what can be termed a "separate event".

While, as we suggest later in this judgment, a strict view of what will in fact constitute withdrawal can properly be taken, the preclusion of withdrawal in any circumstancescannot in our view be correct, either in principle or as a matter of policy. 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, although his acts before withdrawing may render him liable for other offences. That this is so is seen from an earlier case involving an appellant called Grundy. In R v Grundy [1977] Crim. L.Rev. 543 this Court recognised that a person can withdraw until the acts of the principal offender reach the stage of an attempt. The line was probably crossed in R v Perman [1996] 1 Cr. App. R. 24, 34, decided on another ground. In R v Perman this Court doubted that it is possible for a party who becomes a party to a joint enterprise to withdraw once the criminal activity falling within that joint enterprise has commenced. This is, however, not inconsistent with R v Grundy [1977] Crim. L.Rev. 543 because in R v Perman the criminal activity within the joint enterprise was a robbery and the robbery had commenced before the defendant left the shop where the robbery was taking place.

The 1989 decision in R v Grundy (1989) 89 Cr. App. Rep. 333, relied on in the Crown’s submissions to the judge, is, moreover, clearly distinguishable from the present case. First, in that case no issue of disengagement or withdrawal arose. G joined in an attack that others had started and did so after the infliction of the broken nose, the only injury he and possibly the trial judge considered could amount to grievous bodily harm. The facts in this case also suggest that care should be taken in applying it to a case of murder such as the present case. Here the Crown accepts that if a particular defendant joined an incident after the infliction of the fatal injury that defendant is not guilty of murder. But, substituting "serious injury" for "fatal injury", that is exactly what the appellant in Grundy argued had occurred in his case. The difference may lie in the fact that in grievous bodily harm it is the totality of the injuries which determines whether they are really serious; whereas an injury is or is not causative of death. More fundamentally, in Grundy’s case, this Court did not accept that the broken nose was the only injury that amounted to grievous bodily harm: (1989) 89 Cr. App. Rep. 333, at p. 339. The Court stated that there was ample evidence of the infliction of grievous bodily harm in the part of the attack in which G as well as his co- defendants participated.

We have noted that for there to be withdrawal, mere repentance does not suffice. 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 degreefor the jury. Account will be taken of inter alia the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal. In cases of assistance it has sometimes been suggested that, for there to be an effective withdrawal, reasonable steps must have been taken to prevent the crime. It is clear, however, this is not necessary. In R v Whitehouse(1941) 4 W.W.R. 112, a decision of the Court of Appeal of British Columbia approved by this Court on several occasions (see R v Becerra and Cooper (1975) 62 Cr. App. R 212; R v Grundy [1977] Cr. L. Rev. 543; R v Whitefeld (1983) 79 Cr. App. Rep. 36) Soan J.A. stated ( at p. 115) that after a crime has been committed:

There is no reference to a requirement that reasonable steps must have been taken to prevent the crime. The old decision of R v Hyde Hale 1 Pleas of the Crown 537 (1672) and R v Grundy [1977] Cr. L. Rev. 543 are also illustrations of the recognition that this is not necessary. Furthermore, the decision in R v Mitchell and King (1998) 163 JP 75, so far as we can see, an authority not brought to the attention of the judge, shows that in a case of spontaneous violence in principle it is possible to withdraw by ceasing to fight, throwing down one’s weapons and walking away. In that case one of Mitchell’s defences was that he had withdrawn before the fatal injuries had been inflicted. It was stated by the Court (p. 81) that in those circumstances the jury had to be directed (a) that they must be satisfied that the fatal injuries were sustained whilst the joint enterprise was continuing and that the defendant was still acting within that joint enterprise, and (b) that they must be satisfied that the acts which caused the death were within the scope of the joint enterprise.

In R v Mitchell and King this Court also considered Soan J.A.’s statement in R v Whitefeld that "where practicable and reasonable there must be timely communication of the intention to abandon the common purpose". It held that while communication of withdrawal is a necessary condition for disassociation from pre-planned violence it is not necessary when the violence is spontaneous.

For these reasons a defendant who effectively disengages or withdraws before the fatal injury is or injuries are inflicted is not guilty of murder because he was not party to and did not participate in any unlawful violence which caused the fatal injury or injuries. We consider that the question whether or not the violence formed one evolving incident or was two separate and discreet incidents is only relevant in helping to decide whether a particular defendant disengaged before the fatal injury or injuries were caused or joined in after they had been caused. Another way of looking at the matter is that suggested in R v Perman, i.e. that the issue of disengagement or withdrawal may be no more than a consideration of the scope of the joint enterprise. In the absence of such disengagement or withdrawal, however, it is sufficient for there to be a conviction for murder for the prosecution to prove that a defendant participated in unlawful violence which caused injury or injuries which formed a significant cause of death provided that the cause or causes of death cumulatively assessed arose out of a single evolving incident and that defendant had the necessary intention or foresight.

Accordingly, we consider, as this Court did in R v Mitchell and King (1998) 163 JP 75 that the jury should have been directed that that they must be satisfied (a) that the fatal injuries were sustained when the joint enterprise was continuing and that the defendant was still acting within that joint enterprise, and (b) that the acts which caused the death were within the scope of the joint enterprise. As far as (b) is concerned, we have concluded that the jury were appropriately directed in respect of the use of knives. In respect of (a), however, since the jury was only directed to consider the evidence as to the cause of death and what part the particular defendants played if they decided they were dealing with two separated events, we have concluded that the jury was not appropriately directed. The distinction made in the directions between whether there was one event or two meant the jury was not directed that even if they concluded the incident was one continuing evolving event, they had to be satisfied that the fatal injuries were sustained when the joint enterprise was continuing and that the particular defendant was still acting within that joint enterprise.

It is not arguable that the learned judge should have withdrawn the case of O’Flaherty from the jury. The fact that he followed the group to Park Street West still armed with the cricket bat provided an evidential foundation for the jury to conclude, if properly directed, that he was "still in it". There are significant differences so far as Ryan and Toussaint are concerned. In a case of spontaneous violence such as this where there has been no prior agreement the jury will usually have to make inferences as to the scope of the joint enterprise from the knowledge and actions of the individual participants. Ryan and Toussaint were solely in the fray in Flowers Way, and in Ryan’s case only for some 7 seconds. There was no evidence from which it could be inferred that pursuit was part of any joint enterprise by them. Since there was no evidence that any injury causative of death was inflicted in Flowers Way, there was no evidence concerning them on the charge of murder to go to the jury. Accordingly their cases should have been withdrawn

We turn to the effect of the directions. We are clear that even had it been proper to leave Ryan and Toussaint’s cases to the jury the effect of the failure to direct the jury that the fatal injuries had to have been sustained when the joint enterprise was continuing and that the particular defendant was still acting within that joint enterprise would have rendered their convictions unsafe. The position of O’Flaherty differs. He followed the group to Park Street West holding the cricket bat. He was present carrying the cricket bat as the group attacked Hall. Although it is right to say that the jury would have to be satisfied that he was present and at the very least providing encouragement or prepared to lend support it would seem to this court that no other conclusion would have been available to a reasonable jury than was arrived at by this jury.

Accordingly we allow the appeals of Ryan and Toussaint and dismiss that of O’Flaherty.

Although we have found that the judge was in error in not allowing the submissions of no case for Ryan and Toussaint and that his directions to the jury contained the single blemish to which we have referred, we should not wish to leave this case without paying tribute to the careful way in which he framed his directions for inclusion in what was, in all other respects, a masterly summing-up.