Rafferty v The Crown

At the conclusion of the hearing we said that we would be allowing the appeal and quashing the appellant’s conviction for manslaughter. We now give our reasons.

The appeal (for which leave was given by the Full Court on a renewed application) is concerned with the liability for murder or manslaughter of a secondary party who has withdrawn from the attack on the victim prior to its conclusion.

The appellant Andrew Paul Rafferty (“Rafferty”) was tried for the murder (Count 1) of Ben John Bellamy along with two co-defendants, Joel Ison Taylor and Joshua Declan Thomas. We shall for the sake of convenience refer to them as the co-defendants. Both were convicted of murder and do not appeal. On the prosecution’s case, they were primarily responsible for the tragic death of 17 year old Ben Bellamy. Rafferty was acquitted of murder and convicted of the included offence of manslaughter. Given the verdict of manslaughter the jury were not required to bring in verdicts on Count 2 (causing grievous bodily harm with intent) and Count 3 (inflicting grievous bodily harm). Rafferty had earlier pleaded guilty to the robbery of Ben Bellamy’s debit card, Count 4. Ben Bellamy was also robbed of a mobile phone, but Rafferty in his basis of plea denied any knowledge of the mobile phone.

Ben Bellamy died during the early hours of Sunday 17 September 2005. The immediate cause of his death was drowning. He was drowned by the co-defendants. Prior to being drowned he had been stripped naked by the co-defendants. He had also suffered whilst on the beach numerous blunt force injuries, having been punched, kicked and stamped upon. The co-defendants inflicted all of the serious injuries suffered by Ben Bellamy.

The appellant was aged 17 at the time of the offence and the co-defendants were of a similar age.

For the purposes of this appeal the assaults which preceded and led to the death of Ben Bellamy can conveniently be divided into two groups: the assaults which preceded Rafferty’s departure from the beach area and the assaults which took place after he had departed. During the hearing we described them as the pre-departure assaults and the post-departure assaults. In outline, the pre-departure assaults involved the infliction by the co-defendants of serious injuries, sufficient at least to weaken the deceased considerably if not render him unconscious. Similar severe injuries were inflicted by the co-defendants in the post-departure stage. Probably unconscious by then, the deceased was dragged across the beach some 100 metres by the co-defendants, stripped naked, taken out some distance into the sea and drowned. That occurred at about 5.00 am.

Rafferty had departed from the scene at about 4.40 am with the deceased’s debit card, taken, on Rafferty’s case, by his co-defendants. Rafferty then tried unsuccessfully on more than one occasion to withdraw money using the card and the pin number which the deceased had revealed, on Rafferty’s case, to the co-defendants. He admitted that it was his intention to return to the beach area and his co-defendants with the cash which he hoped to have obtained. He did in fact return at about 5.20 am but by then Ben Bellamy was dead and the co-defendants had left the scene.

A witness called Matthew Jones (“Jones”) described what happened during the pre-departure stage. He was the only eye-witness of those events. His evidence was summarised in the following unchallenged way by the judge.

We turn to deal with the evidence of Matthew Jones and the account that he gave. You should still have I think, plan C6 and 7 open or available to you. It might be helpful and entirely for you to have photograph E10 also available. You will see on plan 6 what is written there. The ‘X’ is marked as location of where Matthew Jones was when he first heard the altercation, with the arrow indicating the direction of travel of Matthew Jones back to the scene of the altercation. ‘Y’ is the location of Rafferty and ‘Z’ is the general area of the altercation with Ben Bellamy, Joel Taylor and Josh Thomas [Y and Z were separated by at the most a few yards].

“We were a bit ahead of the other group” he said “I got to the War Memorial and we walked through the War Memorial, down steps and up steps on the other side. I went to the right of the photograph [that is E10] I heard something happening just up a bit by the beach, near the track with the boys. I heard: “Oh for fuck sake” or something like that. I looked and I saw a boy in a white top being punched. I think it was Joel Taylor punching Ben Bellamy. Both had white tops. I think Ben Bellamy was punched in his face somewhere. I think he sort of fell to the floor, got up and tried to run off, but another boy hit him. I saw three or four punches before I ran across. I couldn’t tell who was punching who, until I got closer.

When I got over there, Ben Bellamy had fallen off the path onto the beach. He was lying on the beach with Joel and Josh over him, kicking and punching him. [point Z]. Rafferty was still standing on the path by the beach [point Y]. Ben Bellamy was lying down two or three feet from the cycle track on the sand. The sand wasn’t very hard or very soft there. His feet were pointing towards town and his head pointing towards Mumbles. His hands were on his face and he was lying on his back looking up to the sky. He was trying to protect his face from Josh and Joel kicking and stamping on him. His legs were straight out.

I heard Ben Bellamy saying: ‘ouch, ouch’ every time they kicked or hit him. ‘Take what you want, I’ll give you what you want’, he said. Josh and Joel were nearer the scene, both on the same side of him, kicking, punching and stamping. Both of them were kicking, as though they were kicking a football. The kicks were connecting to his heard, his stomach, all over really. Both of them were stamping to his head, his arms and his chest, but mostly on his head and face area. His arms were covering his chest and his hands were on his face. Both of them were punching to his face, his side and stomach. I saw the punches connecting; they were leaning over him and punching down.

Joel Taylor then kicks or stamps 15 to 20 times. I don’t know how many punches. The punches were in amongst the kicks and the stamps, but there were fewer punches than kicks and stamps. The kicking and stamping and punching was as if it was not really meant to hurt. Ben Bellamy said: ‘ouch’ repeatedly. They didn’t want to hurt him, but they were hurting him”

He agreed that he told the police in an interview that they did not seem to hurt him.

“When I left the scene, Ben Bellamy was still conscious, talking and I hadn’t seen any blood.

Joshua Thomas, I saw him kick and stamp around 15 to 20 times. They were punches amid the kicks and stamps from him as well, but again fewer punches. I was trying to get them off him. I didn’t hear them say anything.

Rafferty came onto the beach and he knelt down on the beach and as Ben Bellamy got onto his back to try to get up he elbowed him in the back to keep him down and he said: ‘This is all you had to do to keep him down’. He had to step down about one foot to the beach, when he came down; I was trying to break it up. I looked at Rafferty, he stepped down and knelt down and elbowed twice. The kicking, the stamping was going on when Rafferty stepped down. I tried three or four times to break it up, but failed.

When Rafferty stepped down, I thought I can’t break up two, I will not be able to break up with three of them doing it, so I decided to leave.

Rafferty had knelt down on the side nearest the path and used his elbow twice in this fashion to the back of the spine. Ben Bellamy laid back onto the floor and shouted: ‘Ow’ and rolled back.

When I went across first of all, I was sprinting. I tried to stop Joel and Josh because I knew Josh best I tried to stop him first. I didn’t know Joel so well. I pushed Josh off and I threw him onto the floor. He started to walk off and I then tried to stop Joel. As I did so, Josh started on Ben Bellamy again. This is before Rafferty came onto the beach.

I also pushed Joel away and told him to leave it. Joel started to walk away and I turned back to Josh cos he had started again then. Joel ran back and started kicking him again. I tried to stop each of them three or four times, but I couldn’t. On the third or fourth time, Rafferty came over and elbowed him.

I think Rafferty and I had left the beach the same time. We both got onto the track from the beach together. I then ran across the track through where I came and I went. I didn’t look back at all. The last image from the beach was Joel and Josh kicking Ben Bellamy”.

He then referred to plan seven and he says that he showed the route that he had taken and he confirmed that in his view, the person who was seen on still D8F at 4.41am 15 seconds was him crossing the road. It had taken him, he though, about a minute or so to get to that point from where he had left the scene. So that would have him leaving the scene he thought at about 4.40am.

“I went from there into Victoria Park because Ben Taylor and Michael Long were waiting in there for me. As I ran in, they were sitting on a bench inside the gate. Ben Taylor knew the path I didn’t. The last time I saw Ben Bellamy he was on the beach on his back, hands over his face. The stamping was if they were stamping on a spider to get it out of the way and these would reach around waist height and then the foot would come down, but I saw nothing being taken from him.

... ”

You will recall that it was put to him on behalf of Joel Taylor that Joel Taylor had not kicked or stamped. His answer was: ‘He was kicking and stamping’. He was asked by Mr Thomas on behalf of Joshua Thomas whether he Joshua Thomas was bringing his foot down at an angle with the sole of his feet, the answer was: ‘He was kicking with the front of his shoe and stamping with the sole’.

The three parts of Matthew Jones’ account which is of particular relevance to the case of Rafferty. Firstly, Matthew Jones says that Rafferty came off the prom and elbowed Ben Bellamy twice. I am just reminding you of that description of the event, however Matthew Jones agreed that when he gave the police his statement on 30 November last year, he did not mention that Rafferty elbowed Ben Bellamy as Ben Bellamy was trying to get up. When he was asked about that, he said that he had in fact told the police that at some stage, but that is not correct. If he had told the police that, you would have been pointed to the place where it is recorded.

The second matter that Matthews Jones agreed that when he was first interviewed by the police on 21 September last year and gave an account of this incident, at page seven and eight of the transcript, you had that referred to you in evidence, and he did not mention at that stage that Rafferty had elbowed Ben Bellamy.

That first account may have been a potted version. It is certainly right that when he was asked for greater detail by the police, he did state that Rafferty elbowed Ben Bellamy twice saying: “That’s all you had to do”. In the same transcript, it is at page 24. You do not have that transcript; I will give you the page numbers, so that you can see the broad sequence of events. The point made of course that that may cast a doubt on whether he is accurate or not in saying that Rafferty did that.

The third matter is this. Although Matthew Jones did not mention it when giving evidence in front of you at first, his attention was drawn to what he told the police when he had been interviewed. That is when Rafferty got back onto the prom, he said to Taylor and Thomas: “Come on boys, leave it”. Now, that was drawn to Matthew Jones’ attention. He agreed that was in fact said by Rafferty.

The evidence of Jones that Rafferty himself had assaulted the deceased was challenged. Mr Spencer QC accepted that the two elbow blows described by Jones as having been administered by Rafferty would not in isolation have caused death and that any injury which they may have caused could not separately be identified.

Timothy Parker gave evidence of what he saw after he had parked his car and walked along the promenade towards the area of the beach where Ben Bellamy had been assaulted. In outline his evidence was as follows (we take this from the appellant’s skeleton argument, paragraph7):

There was a further witness upon whom the prosecution relied when seeking to establish the events that occurred on the beach and that witness was a man by the name of Timothy Parker. Parker had arrived on the sea front shortly after Matthew Jones had run off. ... Shortly after arriving on the sea front, Parker became aware of a male person walking towards him on the sea front. That person was Rafferty. The two men passed each other on the promenade. Shortly thereafter, Parker, who had kept walking along the promenade in the direction that Rafferty had come from, saw movement on the beach some distance ahead of him. He realised that he was looking at two males (Taylor and Thomas) who appeared to be stamping on some driftwood. He then realised it was another person on the ground. He said in his evidence in chief that he saw one person stamp three times. He then saw the 2 people pick up the person on the ground, holding him under the arms, and drag him in a diagonal direction towards Swansea. He described the person being dragged as rag dollish. He was dragged about 5 yards and was then dropped. He then saw what appeared to be ‘staged’ kicking to the person on the ground. Parker thought he was witnessing some friends trying to get a drunken friend home. Parker recalled seeing about 3 kicks to the person on the ground. Parker then turned around and made his way back to his parked car. He then drove away. As he was driving along Oystermouth Road he saw Rafferty walking towards the town centre.

It is to be noted that there is a small gap in time in so far as what was happening on the beach between the events being described by Jones and those being described by Parker. Mr Spencer told us that if Parker was accurate, the co-defendants and Ben Bellamy were in a slightly different position when seen by Parker than they were when last seen by Jones.

The evidence about the finding of Ben Bellamy’s various scattered personal items (clothes, shoes) of which the co-defendants had denuded him and the medical evidence showed what happened thereafter.

Mr Spencer accepted that the medical evidence could not be relied upon with any degree of certainty to identify which of the many blunt force injuries identified by the pathologist had occurred before Rafferty’s departure. The evidence showed that some of the injuries had probably been inflicted by the co-defendants after they had stripped Ben Bellamy naked (and thus after Rafferty had left the scene). The experts agreed that it was possible that Ben Bellamy would have made a complete recovery from the blunt force injuries, but for the drowning. The pathologist said that although death was caused by drowning that did not mean that the blunt force injuries and, in particular, the head injuries were not implicated in the mechanism of death.

At the conclusion of the prosecution’s case the judge ruled that there was a case for Rafferty to answer. None of the defendants then gave evidence.

The trial judge directed the jury that there were two different and independent ways in which they were to consider the case against Rafferty. He called them the causation basis and the joint enterprise basis. The judge reduced all his directions on this aspect of the case into writing.

The prosecution’s case against Rafferty on the causation basis was described in this way by the judge:

The prosecution say, that despite the fact that the pathological cause, the medical cause, of Ben Bellamy’s death was drowning, the blunt force injuries, which Ben Bellamy suffered before he died from drowning, made a significant contribution to his death, because they either rendered him unconscious, so that he was unable to resist being drowned by Taylor or Thomas or if he remained conscious, those injuries reduced his ability to resist drowning.

The injuries to which Rafferty was party were inflicted with intent to cause really serious harm, one of the intents adequate for murder, and if you find that causal link between the injuries and the death, Rafferty the prosecution say will be guilty of murder.

In the words of the trial judge, the appellant’s case, as developed by his counsel, Mr Gerard Elias QC was:

The defence on the other hand say on behalf of Rafferty firstly that Rafferty was not party to inflicting any blunt force injuries on Ben Bellamy. Secondly, if he was, he was party only to those injuries sustained by Ben Bellamy before he Rafferty withdrew from any further violence and left the scene. Thirdly, Rafferty never intended that Ben Bellamy should suffer really serious injury and therefore the necessary intent for murder is not present in any event and at worst, Rafferty would be guilty of manslaughter. Fourthly, whatever Rafferty’s responsibility might be for the blunt force injuries sustained by Ben Bellamy, the drowning of Ben Bellamy by Taylor and Thomas was such a new and different intervening event that it breaks any connection between what Rafferty did and the death of Ben Bellamy

In an earlier passage the judge said this about Rafferty’s case:

On behalf of Rafferty, it is said that when he said to Taylor and Thomas: “Come on boys, leave it”, he was making it clear to them that he was dissociating himself and withdrawing from any further violence upon Ben Bellamy. Therefore, even if you conclude contrary to the case advanced on behalf of Rafferty, that he was party to the violence up to that point and responsible for the injuries sustained up to that point, that is the point where he left the foreshore, his case is that he was not party to or responsible for any of the injuries caused by violence to Ben Bellamy after he left. While he continued to be party to a joint enterprise to rob, as evidence by his going to get the money from the cash point, he was not party to any further violence and not party to the killing of Ben Bellamy.

The trial judge directed the jury that using the joint enterprise route the jury could only convict Rafferty of murder. Mr Spencer explained to us why the judge had taken this course. As far as the joint enterprise route was concerned, it was Mr Spencer’s case that, after his departure, Rafferty remained a party to the joint enterprise which encompassed the continuing use of violence by the co-defendants and that Rafferty contemplated that they might leave Ben Bellamy to drown in the incoming tide or take him into the sea to drown him. It followed, so he said, from putting the case in this way that, if the jury were sure that this is what happened, Rafferty would have to have had the mens rea necessary for a secondary party to murder.

The jury were also told by the judge that they could consider the causation route before or after the joint responsibility route, but that if they considered the causation route first and concluded that Rafferty was only guilty of manslaughter because of “lack of intent” then they could not find Rafferty guilty of murder on the joint enterprise route.

On the assumption that the jury did examine the joint responsibility route, the jury could have acquitted Rafferty either because they were not sure that Rafferty was party to the joint enterprise after he had left the beach (i.e. he had withdrawn or what happened was not within the scope of the joint enterprise) or because the act of drowning Ben Bellamy was fundamentally different from what Rafferty contemplated that the co-defendants might do.

In his skeleton argument Mr Spencer submitted that:

It follows [from the acquittal of murder] that the jury may well have been sure that the appellant was a party to a continuing joint enterprise which went beyond the robbery, but that its scope was limited to acts of further similar violence (punching, kicking and stamping) but not drowning.

That may or may not be right. We do not know.

In summing-up the judge gave the following direction in so far as the causation route was concerned:

Before you could find Rafferty guilty of murder or manslaughter, on this causation basis, the prosecution would have to make you sure of each of the following matters. Firstly, that the blunt force injuries sustained by Ben Bellamy for which Rafferty bears responsibility if any, made a significant contribution to the death of Ben Bellamy. Now I emphasise the words ‘for which Rafferty bears responsibility’ because those injuries have to be identified by you if you can identify them and their effect on Ben Bellamy considered by you separately from any blunt force injuries caused to Ben Bellamy for which Rafferty bears no responsibility. Therefore, if you were to conclude for example that Rafferty bears responsibility only for injuries caused to Ben Bellamy, before Rafferty left the scene to go to the cash point, it would only be those injuries which you could consider in this context. Do you follow that? (Underlining added)

The judge in this passage refers to the blunt force injuries “for which Rafferty bears responsibility”. The judge had earlier told the jury that Rafferty would bear responsibility for those blunt force injuries inflicted (by him or the other two) whilst he was party to the violence. It is clear, as Mr Spencer accepted, that the jury were being directed in this passage that they could convict the appellant on the causation basis if Rafferty was a party only to the pre-departure injuries.

On the evidence of Jones, the jury could have found that the appellant was a party to all of the injuries inflicted prior to his departure. That would have involved a finding by them that, before he intervened in the attack with the use of the elbow, he was actively and intentionally encouraging the attackers albeit that he was a few yards away. Such a conclusion would not have been inevitable - the evidence of the only bystander, Jones, does not directly implicate the appellant as a party to the attack before he physically involved himself in the attack. Assuming that the jury were sure that Rafferty did intervene in the course of the attack and use his elbow, then, the jury would no doubt have found that he was a party (at least) to any blunt force injuries inflicted at the time of his intervention and before his departure.

The judge continued:

Secondly: that those injuries made a significant contribution to the death by drowning of Ben Bellamy, either by rendering him unconscious and unable to resist being drowned by Taylor and Thomas or if he remained conscious, by reducing his ability to resist drowning. The prosecution do not have to prove that the blunt force injuries for which Rafferty was responsible were the only cause of death or even the main cause of death. Nor does it matter that the injuries for which Rafferty was responsible would not themselves have caused the death of Ben Bellamy. However, it is necessary for the prosecution to prove so that you are sure that those injuries contributed significantly to Ben Bellamy’s death.

Thirdly, that the drowning of Ben Bellamy by Taylor and Thomas was not such a new and intervening act in the chain of events, which was so completely different from the injuries for which Rafferty was responsible, that it overwhelmed those injuries and destroyed any causal connection between them and the death of Ben Bellamy.

Now if you are sure that the prosecution have proved the causal link between any blunt force injuries for which Rafferty bears responsibility and the death of Ben Bellamy and that Rafferty intended when those blunt force injuries were inflicted that Ben Bellamy would be caused really serious harm, Rafferty would be guilty of murder. If you are not sure, that he possessed that intent, but you are sure that the causal link has been established, Rafferty would be guilty of manslaughter.

It is important to note that the causation route was an alternative route. The causation route was sufficient to found a verdict of guilty of murder or manslaughter even though the joint responsibility route would have led to a verdict of not guilty.

We must therefore, as Mr Spencer accepted, decide whether the causation route, as defined by the judge, was a sufficient basis to found the appellant’s conviction for manslaughter on the assumption that he was not a party to the post departure violence.

It seems to us at least likely (notwithstanding Mr Spencer’s submissions, paragraph 22 above) that the jury were not sure that he was a party to the post departure violence. If the jury reached this conclusion, how would they have done so? The prosecution were submitting that Rafferty, when he left the beach area to go to the cash point machine, had not withdrawn from the joint enterprise to cause injuries to Ben Bellamy. The continuing violence, the prosecution submitted, was within the scope of the ongoing joint enterprise to which Rafferty remained a party. Thus he was responsible for the post-departure injuries and for the later killing of Ben Bellamy.

The judge told the jury that if they found that Rafferty was a party to the joint enterprise to inflict injuries prior to his departure, they would then have to decide whether Rafferty may have withdrawn from the joint enterprise so that, in the judge’s words “he is not legally responsible for what happens after he has withdrawn”. To put it another way, the judge was saying that, if he had withdrawn, Rafferty was not criminally responsible for any acts committed by the principals after his departure.

The judge gave a standard direction about withdrawal and included these words:

If it is not practicable or reasonable to communicate the withdrawal, a withdrawal might be effective depending on the circumstances of the case by for example, ceasing to attack ... or walking away from the attack.

It is and was Mr Spencer’s submission, with which the judge agreed, that Rafferty could be convicted on the causation basis even though he was, after his departure, no longer a party to the post departure violence. Mr Spencer referred both the trial judge and us to R v Warburton and Hubbersty [2006] EWCA Crim 627, para. 21.

Both Mr Spencer and Mr Elias agreed that a secondary party who has withdrawn may be liable for the consequences of the pre-departure injuries to which he was a party. We also agree.

Both agreed that if the two co-defendants had left the scene or stopped the attack when Rafferty withdrew and if Ben Bellamy had died from the injuries inflicted before departure by the two co-defendants to which Rafferty was a party, then Rafferty would have been guilty of manslaughter (and the co-defendants guilty of murder if they had the requisite intent).

Mr Spencer and Mr Elias also agreed that if the two co-defendants had left the scene or stopped the attack when Rafferty withdrew and a third and independent party had found Ben Bellamy on the beach and (for example) drowned him, then all three defendants would not have been guilty of either murder or manslaughter, although they would have been guilty of other offences.

Whilst accepting the general principle, it seems to us that the question on the facts of this case is: “Was the judge right to leave the causation route as an independent route to conviction?”

Mr Spencer argued that the jury was entitled to find that the post-departure acts of the co-defendants would not break the chain of causation even though Rafferty ceased to be a party to their joint enterprise to inflict violence when he left the scene and even though the immediate cause of death was the drowning. The judge agreed and gave the causation direction which we have set out (paragraph 27 above).

Mr Spencer helpfully took us through various academic writings and in particular the work of Professor Glanville Williams. Mr Spencer relied upon a passage from the Professor’s article Finis for Novus Actus? [1989] Cambridge Law Journal 391, at page 396:

If D murderously attacks a victim and leaves him for dead, when in fact he is not dead or even fatally injured, and if X then comes along and, acting quite independently from D, dispatches the victim, the killing will be X’s act, not D’s, and D would be completely innocent of it. It makes no difference that [D’s] act reduced the victim to a condition of helplessness so that he could not defend himself against [X]. (D would, however, be guilty of attempted murder). The analysis is not changed if D was aware of the possibility or even probability of X’s intervention, provided that he was not acting in complicity with X…” (emphasis supplied).

Mr Spencer cited the following passage from Hart and Honore, Causation in the Law (2^nd edn., 1985), Chapter 12, Criminal Law: Causing Harm at p. 326, a passage which was approved by the Court of Appeal in Pagett (1983) 76 Cr.App.R.279.

The free deliberate and informed intervention of a second person, who intends to exploit the situation created by the first, but is not acting in concert with him, is normally held to relieve the first actor of criminal responsibility. (Emphasis added)

Mr Spencer submitted that Rafferty’s co-defendants were not acting independently from Rafferty and that Rafferty was acting in complicity with or in concert with them. He submits:

... the appellant had undoubtedly been part of a joint enterprise to assault the deceased, and some degree of joint enterprise was still running … in that the appellant had agreed to meet up with the other defendants at the scene upon his return from the cash point. This can only have been with a view to sharing the proceeds, or endeavouring to obtain the correct pin number. (Emphasis added)

We do not agree. If Rafferty had withdrawn from the joint enterprise to assault the deceased then, it seems to us, there was no “degree of [relevant] joint enterprise ... still running”. These passages do not, in our view, therefore help Mr Spencer on the facts of this case.

As we have seen, the judge gave the following direction on novus actus interveniens:

Thirdly, that the drowning of Ben Bellamy by Taylor and Thomas was not such a new and intervening act in the chain of events, which was so completely different from the injuries for which Rafferty was responsible, that it overwhelmed those injuries and destroyed any causal connection between them and the death of Ben Bellamy.

We have reached the conclusion that no jury could properly conclude that the drowning of Ben Bellamy by Taylor and Thomas was other than a new and intervening act in the chain of events.

Although we heard argument about the correctness of the judge’s direction on causation and reference was made to Kennedy [2005] 2 Cr.App.R.23, it is not necessary for us to consider the issue, given the way the judge directed the jury.

We should add that Mr Spencer did argue that Rafferty was a principal and not a secondary party. In our view that cannot be right on the facts of this case. Applying the conventional and well-established approach to be found for example in the text books (see e.g. Smith and Hogan, Criminal Law, 11^th Edition edited by Professor Ormerod, pages 168-169) the appellant was, at most, only a secondary party to the killing (albeit, if he used his elbows, he was a principal party to an assault). In our view, if the appellant was to be liable for murder/manslaughter, it must be as a secondary party and not a principal. In another passage in his article (at page 397-8), Professor Glanville Williams explains the relationship between novus actus and complicity:

The novus actus doctrine is at the root of the law of complicity. If one person instigates another to commit murder, the philosophy of autonomy teaches that the instigator does not cause the death, responsibility for causation being confined to the person who does the deed, and therefore who is the latest actor in the series. In order to bring in the instigator and helpers, bypassing this restriction on the law, the judges invented the doctrine of complicity, distinguishing between principals, and accomplices. Principals cause, accomplices encourage (or otherwise influence) or help. If the instigator were regarded as causing the result, he would be a principal, and the conceptual division between principals (or as I would prefer to call them, perpetrators) and accessories would vanish. Indeed it was because the instigator was not regarded as causing the crime that the notion of accessories had to be developed. This is the irrefragable argument for recognising the novus actus principle as one of the bases of our criminal law. The final act is done by the perpetrator, and his guilt pushes the accessories conceptually speaking, into the background. Accessorial liability is, in the traditional theory, “derivative” from that of the perpetrator. ...

We are fortified in our conclusion that no jury could properly conclude that the drowning of Ben Bellamy by Taylor and Thomas was other than a new and intervening act in the chain of events by asking ourselves what would have been the proper result if Rafferty had been found not to have withdrawn when he left to go to the bank. Assuming that he had not caused the death, his liability would then have depended upon the application of the principles in R. v. Powell and another and R. v English [1999] AC 1 (“Powell and English”) to Rafferty as a secondary party.

The jury would have concluded (given their verdicts in the case of the two co-defendants):

The deliberate drowning caused the death.

The co-defendants are guilty of murder.

The appellant was not present when the drowning took place.

Rafferty participated in some way in the attack on the beach prior to his departure.

Even if Rafferty did elbow the deceased in the way Jones described, the elbowing was not itself a cause of death.

Rafferty realised that no more than some harm would come to Ben Bellamy (in fact the law is more complicated than that, see Rahman [2007] EWCA Crim 342, paragraph 69, sub-paragraph 2(c)).

Applying Powell and English, the jury would have had to ask themselves what acts the appellant realised that the co-defendants might do to cause the deceased harm (presumably kicking, punching and stamping) and ask themselves whether they were sure that these acts were not of a fundamentally different nature to the deliberate drowning (see Rahman, paragraph 69, sub-paragraphs 5 and 6).

Mr Elias submits that no jury could properly conclude that the drowning was other than of a fundamentally different nature. Mr Spencer disagrees. We agree, on the unusual facts of this case, with Mr Elias.

For these reasons we allow the appeal and quash the conviction.