Webb, R v

J U D G M E N T

1. LORD JUSTICE HOOPER : On 27 March 1996 the appellant (now 59) was convicted of the murder of Clarence Cooper aged 84 and of a conspiracy to burgle. Clarence Cooper was killed during the course of a burglary of which the appellant, on the prosecution's case, was the master mind. He appeals against his conviction for murder following a reference by the Criminal Cases Review Commission ("CCRC"). At the conclusion of this morning’s hearing we announced that the appeal was dismissed. We now give our reasons.

2. We are grateful for the comprehensive analysis of the case in the CCRC’s Statement of Reasons.

3. We take the facts from that statement:

"2. On count 2, Mr Webb was jointly convicted with Michael Micklewright of murdering Clarence Cooper (aged 84 years) at Mr Cooper’s home in Alexandra Road Walsall. Jason Matthews was found not guilty of murder but guilty of manslaughter. Anthony French was acquitted following the trial judge’s ruling on a submission of no case made on his behalf. Evidence was presented that Mr Cooper was murdered during a burglary at his home on the night of 8/9 August 1994. His body was found at around 12:30/12:45pm on 9 August 1994 by a neighbour, Tye Paddock. Mr Cooper had been stabbed 12 times in the neck with a sharp instrument but had died from asphyxia caused by a handkerchief (probably used as a gag) which had been pushed into his mouth. The pathologist, Dr Acland, calculated the time of death as between 11:43pm on 8 August and 5:19am on 9 August 1994.

3. It was the prosecution’s case that Mr Webb was the leader of a small gang comprising Jason Matthews, Michael Micklewright, Anthony French and himself, and that he had taught the others (then aged between 16 and 17) how to commit burglaries. This was supported by Mr Webb’s own admissions in his police interviews (see below) that he showed the boys how to do "sleepers" (burglaries at night), had provided them with the requisite tools and on one occasion had disposed of the stolen goods. Mr Webb also accepted at his interviews that on the night of the murder the gang left his house to commit burglary and were carrying screwdrivers, Stanley knives and an Army knife. He also said in his interview that Mr Micklewright was a “nutter”. The prosecution contended that the parties had entered into a conspiracy to burgle Mr Cooper’s home at night and that Mr Cooper was murdered when he disturbed them.

4. The prosecution unequivocally asserted that Messrs Micklewright, Mathews and French were at Mr Cooper’s address on the night in question. As to Mr Webb’s role, the case as left to the jury was that Mr Webb might have physically participated in the burglary by entering Mr Cooper’s house; that he might have remained outside the premises; or, he might have remained inside his own home having entered into a joint enterprise with the others. The prosecution adduced evidence in support of each of these scenarios.

5. Important evidence against Mr Webb consisted of his alleged "confessions" to Darren Cooke and Carol Wallbank, who were living together with Mr Webb in a hostel after the murder had taken place. According to Miss Wallbank and Mr Cooke, Mr Webb told them about the murder of Clarence Cooper almost on a daily basis on occasions between 12th September and 17th October 1994. Miss Wallbank gave evidence that Mr Webb had told her that he went to Mr Cooper’s house with the boys to set up the burglary and that he stayed outside whilst the three boys went inside. He heard a smash and the three boys ran out covered in blood. Mr Cooke gave evidence that Mr Webb told him that Mr Micklewright had stabbed Mr Cooper in the throat with a knife or a screwdriver which had come from Mr Webb’s house and that somebody had stuffed a handkerchief into Mr Cooper’s mouth. In addition Mr Webb told him that he and the boys had all kicked and punched Mr Cooper. Mr Cooke also stated that Mr Webb told him that they stole £100 from Mr Cooper’s home and went back to his, Mr Webb’s house, where he told the others he could burn their clothes and showed them how to clean themselves. Mr Cooke also gave evidence that Mr Webb told him that he disposed of Mr Micklewright’s knife.

6. Victoria Webster gave evidence that she and Gary Matthews (brother of the co-accused Jason Matthews) went to see Mr Webb on 27 August 1994 and Mr Webb told her the following: He could get Jason Mathews off the charges with the police if in return Mr Matthews would tell him what he had told the police about Mr Webb’s role. He (Mr Webb) had told the police that Mr Matthews had stayed at his house on the night of the murder. Victoria Webster in her evidence went on to say that Mr Webb told her that Messrs Micklewright and French had gone out with knives and black bags and a handkerchief taken from his drawer and that they murdered Mr Cooper. She also stated that Mr Webb told her that they, Messrs Micklewright and Matthews, deliberately set him up by leaving the handkerchief and the bin liner at Mr Cooper’s house. Mr Webb had also told her that the burglars carried an Army knife and another knife which was possibly a Stanley knife.

Mr Webb’s interviews

7. On 22 August 1994, Mr Webb went voluntarily to Walsall police station and made a witness statement. He was arrested on 24 August 1994 for murder and was interviewed at length. He consistently claimed that during the night of 8/9 August 1994 Messrs Micklewright, French and Matthews left his house at about 1.30am, and, having returned in the early hours, went out again and returned about 4.45am. Mr Webb said that they went out with his two screwdrivers, balaclavas and gloves to commit burglaries. He admitted that he knew Mr Micklewright had an Army and a Stanley knife and that Mr French had a Stanley knife. He admitted that he had shown them how to do "sleepers", but denied sending them to Mr Cooper’s house. He said that he did not know where Mr Cooper lived. He denied any involvement with Mr. Cooper's death. He said that Messrs Micklewright and French changed their clothes the next day and that he had heard about the murder at the Glebe Centre between 12 and 1pm on 9 August. He also said that Mr Micklewright had told him that they (Messrs Micklewright, French and Matthews) had panicked and stabbed the old man when the lights came on.

Joint enterprise.

8. It was the prosecution’s case that Mr Webb was the leader, organiser and planner of the defendant’s burgling activities generally, and in particular on the night of the murder. The prosecution argued that there was evidence that showed that Mr Webb had organized the burglary at Mr Cooper’s home. The prosecution adduced evidence that the defendants carried with them weapons (namely Mr Micklewright’s Stanley and Army knives and Mr French’s Stanley knife), and two of Mr Webb’s screwdrivers.

9. The prosecution said that Mr Webb’s knowledge of the weapons, coupled with his view of Mr Micklewright, indicated an awareness of the possibility that an occupier would be seriously injured if the need arose. Substantial argument took place about the law relating to joint enterprise.

4. We add to this summary only the following. The handkerchief probably belonged to the victim and we shall so assume. The pathologist gave the cause of death as asphyxia perhaps aggravated by the neck wounds. It was not clear whether the neck wounds preceded or followed the application of the gag.

5. The appellant chose not to give evidence.

6. It was the respondent’s case that the appellant was a party to the murder. Another defendant had pushed the handkerchief into the deceased’s mouth causing his death. The judge gave the following direction to the jury to apply to any defendant who did not actually cause the death:

"The prosecution case is that the defendants committed this murder jointly. Where the offence is committed by two or more persons, each of them play a different part, but if they’re acting together as part of a joint plan to commit an offence, they are each guilty of it. Before you can convict any of the defendants you must either be sure that he committed the murder himself or that he did an act or acts as part of a joint plan with the other defendants to commit murder.

If you are not sure that he was killed by the defendant whose case you are considering you must go on to decide whether the defendant whose case you are considering was a party to a joint enterprise which included either an agreement, tacit or express, involving the intention to kill Clarence Cooper or to cause him really serious bodily harm if the need arose during the course of the burglary; or, without agreeing to such conduct being used, the realisation that Clarence Cooper might be killed or caused really serious bodily harm during the burglary.

...

What about B and C who are party to the joint enterprise to burgle the house? The law is that where two or more persons embark on a joint criminal enterprise, in this case burglary, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for the unusual consequences if they arise from the carrying out of the joint enterprise. However, if one of the burglars goes beyond what had been agreed between them as part of the joint enterprise and does an act which is outside the scope of what has been agreed between them, then the others are not liable for the consequences of that unauthorised act. It is for you to decide whether what was done was part of the joint enterprise or went beyond it and was in fact an act unauthorised by the joint enterprise.

...

In any of those situations it is open to you to conclude that the defendant whose case you are considering was a secondary party to the joint enterprise, but you must also be sure that the joint enterprise in which he participated included either an agreement involving an intention to kill Clarence Cooper, or to cause him really serious harm if the need arose during the burglary, or without agreeing to such conduct being used the realisation that Clarence Cooper might be killed or might be caused really serious bodily harm in the course of the burglary.

In fact, the way the prosecution put their case is that the secondary parties to the joint enterprise must have realised or contemplated that really serious harm might be intentionally inflicted on Clarence Cooper, and that they nevertheless continued to participate in the burglary. If, therefore, you are sure that one of the three defendants killed Clarence Cooper with the requisite intention for murder, namely to kill or to cause really serious bodily harm, and that the killing occurred during the execution of a joint enterprise which involved the realisation that serious bodily harm might be intentionally inflicted on Clarence Cooper, and if you are sure that the defendant whose case you are considering participated in that joint enterprise with that realisation, then the defendant whose case you are considering will be guilty of murder."

7. The judge gave the jury some written questions. In so far as relevant to this appeal, they were, as set out by the judge in the summing up:

"Thirdly, are you sure that one of the defendants, other than the defendant whose case you are considering, killed Clarence Cooper with the intention to kill him or to cause him really serious bodily harm? If yes, consider question 5; if no, consider question four.

Fourthly, are you sure that one of the defendants, other than the defendant whose case you are considering, killed Clarence Cooper in circumstances that all reasonable and sober people would inevitable realise must subject someone to the risk of some harm although not serious harm? If yes, consider question 7; if no, find him not guilty of murder and manslaughter.

Fifthly, are you sure that the defendant whose case you are considering took part in a joint enterprise with the defendant who killed Clarence Cooper to burgle 178 Alexandra Road? If no, find him not guilty of murder and manslaughter. If yes, consider question 6.

Sixthly, are you sure that the joint enterprise in which the defendant whose case you are considering took part included the realisation by him that really serious bodily harm might be intentionally inflicted on Clarence Cooper? If yes, find him guilty of murder; if no, consider question 7.

Seventhly, are you sure that the joint enterprise in which the defendant whose case you are considering took part involved a realisation by him that some harm might be caused to Clarence Cooper? If yes, find him guilty of manslaughter; if no, find him not guilty of murder and manslaughter. You probably realise by now, members of the jury, why I thought it might be helpful if you were to have those directions in writing so that you can take them out with you and consider them when you retire."

8. Although the judge in his oral directions told the jury to decide whether what was done was part of the joint enterprise or went beyond it, that was not repeated in the written directions. The trial being conducted prior to the decision of the House of Lords in Powell and English[1997] 1 AC 1 no specific direction was given about the handkerchief. Mr Parker QC who, like Mr Thomas QC, was not counsel at trial concedes rightly that the direction was not in accordance with Powell and English.

9. Given that the appellant was convicted of murder, the jury must have been sure that he participated (in some way) in the burglary of the home of Clarence Cooper and he realised (at the least) that serious bodily harm might be intentionally inflicted on Clarence Cooper during the burglary. The appellant had admitted in his police interviews that he showed the boys how to do "sleepers" (burglaries at night), had provided them with the requisite tools and on one occasion had disposed of the stolen goods. Mr Webb also accepted during his interviews that on the night of the murder the gang left his house to commit burglary and were carrying screwdrivers, Stanley knives and an Army knife. He also said in his interview that Micklewright was a "nutter".

10. Mr Thomas rightly and importantly conceded that the jury must have concluded that the appellant realised that one or more of the "weapons" might be used with the intention of causing (at the least) serious bodily harm to the occupant of the house being burgled. That was how the judge approached the case in his ruling on a submission of no case to answer.

11. Given that the appellant realised (as the jury found) that serious bodily harm might be inflicted on Clarence Cooper during the burglary, he will be guilty of murder if what the killer did was within the scope of the joint enterprise. In Attorney General’s Reference under section 36 of the Criminal Justice Act 1972 No 3 of 2004[2005] EWCA Crim 1882, discussed in [2006] Crim. L. R. 63 the Court said this about the scope of a joint enterprise:

"32. Mr Perry concedes (rightly in our view) that the test for whether what the primary party did is within or outside the scope of the joint enterprise requires the application of a subjective test. Did the secondary party foresee the possibility that the primary party would do what he did? It is preferable to define the scope of the joint enterprise in this way rather than by using such language as “Did the act go beyond what had tacitly been agreed?” or “Did he depart from the concerted action of the common design?”. That is established by Powell and English (see e.g. 31C-D). Nor is a test fashioned on the law of causation probably very helpful. Earlier cases which talk of “must have anticipated” may also now be ignored.

33. The issue in this case is what does the secondary party have to have foreseen as a possibility? There is no dispute between Mr Perry and Mr Cox that it is an act and in the case of English, as in this case, it is the act which caused the death. Lord Hutton in Powell and English said:

'The first issue is what is the degree of foresight required to impose liability under the principle stated in Chan Wing-Siu [1985] A.C. 168. On this issue I am in respectful agreement with the judgment of the Privy Council in that case that the secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.’(Underlining added)”.

12. It is clear from Powell and English that it is sufficient if the defendant foresaw an act of the type which the principal party committed. Lord Hutton said, at page 29:

"Mr Sallon, for the appellant, advanced to your Lordships' House the submission (which does not appear to have been advanced in the Court of Appeal) that in a case such as the present one where the primary party kills with a deadly weapon, which the secondary party did not know that he had and therefore did not foresee his use of it, the secondary party should not be guilty of murder. He submitted that to be guilty under the principle stated in Chan Wing-Siu the secondary party must foresee an act of the type which the principle party committed, and that in the present case the use of a knife was fundamentally different to the use of a wooden post.

My Lords, I consider that this submission is correct. It finds strong support in the passage of the judgment of Lord Parker C.J. in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, 120 which I have set out earlier, but which it is convenient to set out again in this portion of the judgment:

'It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely form the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.'.

The judgment in Chan Wing-Siu's case [1985] A.C. 168 also supports the argument advanced on behalf of the appellant because Sir Robin Cooke stated at p.175:

'The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.’ (Emphasis added.)"

13. Mr Parker (upon whom we did not call) referred us in his skeleton argument to another passage in Lord Hutton’s speech which is to a similar effect (page 30):

"However, I would wish to make this observation: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa."

14. Mr Thomas submits that the jury should have been directed that to convict of murder they had to be sure that the appellant had in contemplation the use of a handkerchief or towel as a gag if necessary. That in our view overlooks the fact that it is sufficient if the defendant foresaw an act of the type which the principal party committed.

15. We take the view that, in the light of Powell and English, the jury should have been directed along the following lines on the facts of this case and in the light of the other directions:

"If you are sure that the defendant realised that a screwdriver or knife might be used with the intention of causing (at least) serious bodily harm to Clarence Cooper and if you are sure that the defendant realised that one of the burglars may, with the intention that serious bodily harm be caused to Clarence Cooper (by himself or another), take steps to silence the victim’s voice, then he is guilty of murder [the other ingredients being satisfied]."

16. We know the jury were sure of the first part, namely that the defendant realised that a screwdriver or knife might be used with the intention of causing (at least) serious bodily harm to Clarence Cooper. Mr Thomas, relying on Greatrex [1999] 1 Cr App R 126, submits the second part should have been left to the jury. That not having been done, the appeal must succeed, so he submits. In our view Greatrex was quite different. The fatal blow was delivered by an iron bar to the head. The appellant, on the jury’s verdict, was, with others, involved in violently kicking the victim. It was held that it was for the jury to decide whether the use of the iron bar was within the appellant’s contemplation and that it was open to the jury on the facts of that case to have decided either way. In this case the "weapon" used to cause death was only a handkerchief.

17. Given that the second part of this question should have been left to the jury for their determination, we have to ask whether the conviction is unsafe. In our view, in the light of the admissions made by the appellant, a jury would inevitably have convicted if this direction had been given.

18. We add this. If, in the instant case, the knife wounds had been a substantial cause of death (either medically or because of their disabling effect), then the direction given by the judge may well have satisfied the Powell and English test.