Rahman & Ors v R.

This is a judgment to which all members of the Court have contributed. The appeal is primarily concerned with joint enterprise in cases of homicide and, in particular, with the rule the effect of which is that a limited category of secondary parties will not be guilty of murder if the fatal act of the primary party was fundamentally different to that foreseen by the secondary party. In paragraphs 68 and following we give some guidance as to how cases of joint enterprise murder should be summed up to a jury.

On 4^th March, 2005, in the Crown Court at Leeds the appellants were each convicted of murder.

On the afternoon of 22April, 2004, at the rear of 21 Brett Gardens, Beeston, 16 year old Tyrone Clark died from a stab wound to the back during an attack on him by a number of persons. He sustained three stab wounds; one to the shoulder, which did not penetrate any vital organ, and two to the back; one of which penetrated the aorta, leading rapidly to his death. It was the prosecution’s case that all of the appellants were part of the group attacking Tyrone Clark at the time of his death. The jury were instructed that a defendant could not be convicted of murder unless they were present at the rear of 21 Brett Gardens and participating in the attack. It follows from the jury’s verdict that each appellant was thus present at the rear of 21 Brett Gardens and participating in the attack

The prosecution called disputed evidence that the appellant Liaquat Ali was in possession of a knife just before Tyrone Clark met his death and that the group which was surrounding Tyrone Clark at the time of his death were armed also with various blunt weapons. However the prosecution was unable to identify which of those persons who were surrounding Tyrone Clark delivered the fatal blows.

The appellants each have leave to argue that the late Wakerley J. misdirected the jury as to their responsibility for murder in these circumstances. In particular it is submitted that the judge misdirected the jury on what is known as the “fundamentally different” test. Mr Harrison QC presented the principal arguments on this point, arguments to which the other counsel expressed their agreement.

It was the prosecution’s case that there had been a long-standing conflict between, on the one hand, Tyrone Clarke, Rafael Lovick and their friends, and, on the other, some youths of Asian origin. It was said that on Tuesday, 20 April, 2004, some of the Asian youths had suffered humiliation at the hands of Clarke and Lovick in a fight in front of young girls and pupils outside the Matthew Murray school. The fight had been impromptu, and there was conflicting evidence as to who had started it. Arshad Younis (Ash) had run off during the fight, and Clarke and Lovick had chased the remaining two, the appellants Rahman and Amin, into the school grounds. The Crown suggested that this incident was the catalyst for the events of 22 April, when at around 4.30 pm a large group of Asian men gathered at Sholay's Takeaway, Beeston. There was evidence that a number of them were armed with a variety of weapons, and that some were hooded or wore balaclavas. The group proceeded to walk into the Beeston Estate where Tyrone Clarke lived. In a ginnel (alley-way) known as the "Rock" five of the group of Asians met and confronted Clarke and Lovick, both of whom had armed themselves with sections of fencing post. On the evidence there was something of a stand-off, a brick was thrown and in the end Clarke and Raphael Lovick turned and ran, pursued by the group of Asians from the "Rock". On exiting the "Rock" they crossed a road known as Lady Pit Lane, at which point a number of witnesses saw a further group of at least 10 Asians join in the pursuit of Clarke and Lovick. The chase proceeded across Lady Pit Lane and into another ginnel, which ran behind the Brett Gardens Hostel. Clarke ran out of this ginnel across an expanse of grass and was caught by his pursuers outside the back garden gate of No 21 Brett Gardens (a friend’s house, where he had sought refuge). There he was surrounded, beaten and kicked. Some, if not all, of the group were carrying weapons of various descriptions, and used those weapons, together with fists and feet, on Clarke. The weapons were sticks, chair legs, pieces of fencing, baseball bats, a cricket bat, a length of metal tubing, and a length of scaffolding pole. One witness (Lovick) said that the co-accused Ali had a knife. There was variation in the evidence as to the number in the group, but, as the jury found, it included the appellants.

Each of appellants said in evidence that he did not have a knife, nor foresee, believe, know or realise that anyone else had a knife. It was their case that the knifeman was acting beyond the scope of any joint enterprise to attack Clarke, so whilst the knifeman might have been guilty of murder, the others were not criminally responsible for that stabbing. Rahman testified that although he had been involved in the confrontation at The Rock ginnel and had started to follow the chase into Brett Gardens, he had never reached the area of No. 21 where the fatal attack took place. This was because he ran, “out of puff”; having sustained an injury to the face caused by a plank of wood wielded by either Clarke or Lovick in the Rock ginnel. Rahman said in evidence that he had never been closer to the actual attack than the electricity sub-station. Akram said that he had not participated in the attack in Clarke in Brett Gardens, and nor had he been there encouraging others to attack Clarke. Akram had been at the rear of No. 21 and had been ready and willing to join the attack on Clarke, but had been frustrated in his intention by the arrival of the police. Amin gave evidence that he had never been anything more than a spectator regarding the events on 22^nd April, 2004. He had never got any further than the ginnel at the rear of the Brett Hostel, where he had been struck on the arm by a brick thrown by Lovick during the chase. Amin, believing his arm to be broken, had gone to hospital. Ali said in evidence that he had been on his way to work when the attack in Brett Gardens had occurred, and that he had approached it from Bismark Street simply out of curiosity. He ran off, following two of those whom he knew were attackers into the compound surrounded by the green fence, which he climbed after the other two, and then on to the roof of 25 Brett Gardens, because he panicked and feared that the police might associate him with the others involved in the incident. He had had no knife. No knife was found on him at the time of his arrest.

We shall return to the facts in a little more detail later when we consider other grounds of appeal.

The judge gave the jury written directions. In so far as material to the issues with which we are concerned they read:

“JOINT RESPONSIBILITY.

Where 2 or more persons join in an unlawful attack on another in circumstances which show that they all shared an intention at least to inflict really serious harm on the victim, and as a result of the attack the victim dies, they are jointly liable for murder. The law is that where 2 or more persons embark on a joint enterprise, each of them may play a different part, but if they are in it together as part of a joint plan or a common purpose, each is liable for the acts done in pursuance of that joint enterprise.

That, you may think, accords with justice and common sense. To take a plain example, 4 men agree to take revenge upon a victim and kill him; 1 may have the loaded gun and kills the victim; 2 others may be there to capture the victim and bring him to the gunman and ensure that the victim does not escape; the 4th may be there as the boss and organiser. Only 1, the gunman, does the act of killing. But all 4 are guilty of murder if they were in the plan together, playing a part and sharing the gunman's intention to kill the victim.

So the prosecution do not have to prove who the knifeman was. The essence of joint responsibility in this allegation of murder is that each defendant shared the intention to commit the offence of murder, i.e. to kill or to cause really serious injury, and took some part in it, however great or small to achieve that aim.

What is meant by "took some part"? Some may take part by actually wielding a weapon on or by kicking or punching Tyrone Clarke at the rear of Brett Gardens; others may have chased and surrounded him to enable others to wield their weapons and prevent his further escape; others may have actively encouraged others to do the violence. The prosecution must make you sure that the Defendant whose case you are considering was at the rear of the houses in Brett Gardens. Mere presence at or very near the scene of the attack, for example as a spectator, is not enough to prove participation. But if you find that a particular defendant was there and intended and did by his presence alone encourage the others to attack Tyrone Clarke, and he intended to kill Tyrone Clarke or to cause him really serious injury or realised that those whom he was encouraging might kill Tyrone Clarke with such intention, that would amount to participation in it.

However, if the injury which in fact cased the death of Tyrone Clarke was inflicted by the actions of one attacker of a type entirely different from actions which another attacker foresaw as part of the attack, only the former is guilty of murder; that is because he has gone outside the scope of the joint enterprise or common purpose of the attackers.

Let me take another plain example. Imagine a group of young people coming out of a club late at night. There is an argument on the pavement outside with a smaller group; as sometimes happens, it quickly escalates to violence. Punches are thrown by members of the larger group. But 1 of that group suddenly produces a knife from his pocket, the existence of which was quite unknown to the others, and stabs a victim in the chest intending to cause the victim really serious injury and the victim dies as a result of the stab wound. Even if the members of the group punched with the intention of causing really serious injury, a jury would surely say that there is a world of difference between punching a victim and stabbing him in the chest with a knife and they could not have foreseen the use of the knife whose existence was quite unknown to them. So there, the use of a knife or any truly lethal weapon was not within the scope of the common purpose of that spontaneous outbreak of violence; and its use could not have been foreseen by any individual in the group.

In the present case, if you are sure that all those who joined in the attack tacitly agreed to the use of the weapons carried openly by many of them (the cricket bat; the baseball bats, the scaffolding pole, the length of metal tubing and the pieces of wood, all except the cricket bat recovered later from the scene in Brett Gardens), then it is for you to decide whether the production and use of a knife to stab Tyrone Clarke was so different in character as to be outside the scope of the common purpose of the attackers.

The words "tacit agreement" and "common purpose" do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment; sometimes there may be planning, sometimes not; sometimes there may be acts of preparation, sometimes not. Parties to an agreement may join at different times; nothing may be said at all. An agreement or common purpose can be inferred from the behaviour of the parties.

So you must decide what was the common purpose of those participating in the attack on Tyrone Clarke in Brett Gardens and to which a Defendant joined up (if, but only if, you are sure that he did participate in the attack). You may think that the attack on Tyrone Clarke was not entirely spontaneous, the result of a chance encounter in the Rock ginnel. Amongst those who had gathered at Sholay's; or who were in the group advancing up Hill Street, or who were seen at the bottom of Lady Pit Lane or in Beeston Road or in the Rock ginnel, must there have been some comment or discussion as to what the group was about? And what the weapons on show were for? What matters should you have in mind deciding whether the production and use of the knife which stabbed Tyrone Clarke were within the scope of the common purpose of the attackers in Brett Gardens? The question is entirely a matter for you but they may include: Is the character of a knife e.g. its propensity to cause death, fundamentally different from the other weapons being openly carried? If those other weapons were, in your judgement, equally likely to inflict fatal injury when used as the attackers implicitly agreed, then the mere fact that a different weapon, a knife, was used by one of them may be immaterial. Was the common purpose of the attackers to use lethal weapons so as to kill or to cause really serious injury by any such means at their disposal? If you are sure that the common purpose to which the Defendant whose case you are considering joined, included the use of lethal weapons to be used with the intention of killing the victim or causing him really serious injury, then it is open to you to conclude that the use of a knife in the attack was within the scope of the unlawful enterprise. But if you conclude that to stab a knife in the back was in a different league to the kind of battering to which the attackers implicitly agreed upon by the use of those other weapons, then the others are not responsible for the consequences of the use of the knife unless in the case of the Defendant whose case you are considering he actually foresaw the use of a knife to kill Tyrone Clarke.

The mere fact that by attacking the victim together, each participant in the attack had an intention at least to cause really serious injury, is insufficient to make each responsible for the death of the victim caused by the use of a lethal weapon used by one of the attackers with the same intent. The prosecution must go further as I have indicated and prove in the case of each defendant, that he took some part in the attack on Tyrone Clarke in Brett Gardens and either that the use of lethal weapons, including a knife, was within the scope of that criminal enterprise which he joined as I have described above; or that because of circumstances within his particular knowledge, he himself realised that a knife might be used in the attack with the intention of killing Tyrone Clarke or causing him really serious injury.

Thus, if you are sure that the Defendant whose case you are considering:

Was himself carrying a knife and produced it in the attack; or

Knew before the stabbing that one or more of the attackers had a knife in his possession and realised that he or they might use it in the attack; or

During the actual attack on Tyrone Clarke and before he was fatally stabbed, saw another attacker with a knife out ready to use it in the attack, yet he continued to play a part in it; any of these matters would, you may think, be powerful evidence of his joint responsibility for the death of Clarke by use of a knife because, quite apart from the scope of the common purpose of the attackers, that defendant himself foresaw the use of a knife to kill in the attack.

So your approach to the case should therefore be as follows:

1.

Are you sure that the man, whoever he was, who stabbed Tyrone Clarke with a knife so as to cause his death, intended, at the very time of the stabbing, to kill him or to cause him really serious injury; i.e. was he guilty of murder?

If not sure: not guilty and go to Count 2 because as a matter of law, none of these defendants can be guilty of murder unless you are sure that the knifeman committed the offence of murder.

If sure: go to question 2

2.

Are you sure that the Defendant whose case you are considering took some part in the attack on Tyrone Clarke in Brett Gardens? Participation in the confrontation in the Rock Ginnel is not enough; such participation, if proved, may or may not help you as to the facts of subsequent events in or on the way to Brett Gardens. Did the Defendant use violence to Tyrone Clarke at the rear of Brett Gardens? Did he chase and there, with others, surround Tyrone Clarke intending to enable others to use such violence? As I have directed you, mere presence at or very near the scene of the attack is not enough to prove participation. But if you find that a particular defendant was on the scene and intended and did by his presence alone encourage the others to attack Tyrone Clarke, that would amount to participation in it.

If not sure: not guilty and go to Count 2.

If sure: go to question 3

3.

Are you sure that in taking part in the attack on Tyrone Clarke, the Defendant whose case you are considering either shared the intention to kill him or to cause him really serious injury; or that he realised that one of the attackers might use such violence by the use of lethal weapons to Tyrone Clarke as to kill him with intent to kill or to cause him really serious injury?

If not sure: not guilty and go to Count 2

If sure: go to question 4.

4.

Are you sure either that the actions of the knifeman in producing the knife and stabbing Tyrone Clarke with it were within the scope of the common purpose of those attacking him which the defendant joined; or that the Defendant whose case you are considering because of particular matters within his knowledge, realised that one or more of the attackers might produce and use a knife in the attack and that such attacker might kill with the intention of killing Tyrone Clarke or causing him really serious injury.

If not sure: not guilty and go to Count 2

If sure: guilty of murder and go no further.”

The principal criticism made by Mr Harrison QC as initially developed may be simply stated:

The judge should have directed the jury when considering whether the actions of the knifeman in producing the knife and stabbing Tyrone Clarke with it were within the scope of the common purpose to take into account that the intention of the knifeman was to kill the deceased.

Mr Harrison made a number of detailed criticisms of the directions but those criticisms in large measure depended upon the correctness of his principal criticism. We see no merit in his other criticisms.

Mr Harrison sought to show us that the knifeman must have intended to kill rather than intended only to cause serious bodily harm. However, he accepted, in the light of the burden of proof, that if the jury were to be given such a direction, then the jury would have to take into account that the intention of the knifeman may have been to kill the deceased. In this case it is clear that the knifeman, at the least, may have intended to kill and therefore, if Mr Harrison is right, the jury should have been directed:

When considering whether the actions of the knifeman in producing the knife and stabbing Tyrone Clarke with it were within the scope of the common purpose, to take into account that the intention of the knifeman may have been to kill the deceased.

He accepted that the jury would only be entitled to take this into account if they were sure that the defendant whose case they were considering intended to cause serious bodily harm but were not sure that he intended to kill or realised that a participant might kill.

The direction that Mr Harrison suggests not having been given, there would have been a misdirection subject to any submission that Mr Smith might make as to the safety of the convictions in any event.

Mr Harrison made it clear that he was not submitting, as a matter of law, that the knifeman would necessarily be acting outside the scope of the common purpose if he may have intended to kill. It seems to us, and Mr Smith QC for the respondent agreed with us, that the reason that Mr Harrison did not submit this, was that it would run counter to R.v.Powell and another and R. vEnglish [1999] AC 1, generally referred to as Powell and English. One appeal involved Powell and Daniels and the other appeal involved English.

What perhaps was not clear even at the end of the argument was whether, if Mr Harrison was right, the jury, when considering the scope of the common purpose, had to take into account that the knifeman may have intended to kill or whether it was something which was open to them to take into account.

Mr Harrison was agnostic as to the point at which during the course of the directions his suggested direction should be given. However, after some debate he accepted that the only sensible place to give this direction would be as part of the direction on what might make the actions of the knifeman fundamentally different and thus take them out of the scope of the common purpose. Given this acceptance, we turn back to the four questions.

There was no debate about the correctness of questions 1 and 2. Question 3 was the subject of much debate before us. After much argument Mr Harrison accepted that the question did not give rise to a ground of appeal. Mr Smith submitted that question 3 was overly favourable to the defendants, not being in accordance with Powell and English. We agree with him. Question 3 asked:

“Are you sure that in taking part in the attack on Tyrone Clarke, the Defendant whose case you are considering either shared the intention to kill him or to cause him really serious injury; or that he realised that one of the attackers might use such violence by the use of lethal weapons to Tyrone Clarke as to kill him with intent to kill or to cause him really serious injury?

If not sure: not guilty and go to Count 2

If sure: go to question 4.”

Mr Smith submits that the judge was right to refer to “one of the attackers”. He refers us to Davies v. DPP [1954] AC 378 at 401, cited with approval in Chan Wing Sui v The Queen [1985] AC 168 and Hyde[1991] 1 QB 134 where the argument that “the jury ... could not be sure whose act caused the death and that therefore no-one should be convicted as a killer” was rejected. We agree with this submission.

Mr Smith submits that question 3 was too favourable to the defendants because if the defendant intended Tyrone Clark to be killed (or, in the judge’s words) shared the intention to kill him, then he would be guilty of murder and question 4 would not be applicable. We agree. This is what is described in Smith and Hogan, 11^th Ed. page 192 as “basic accessory liability”.

Mr Smith also contends that question 4 would not be applicable if a defendant realised that one of the attackers might kill Tyrone Clarke with intent to kill him. Mr Harrison was, at least at first, more ambivalent. As we see below the second certified question in Powell and English was concerned with a defendant who intends or foresees that the primary party would or may act with intent to cause grievous bodily harm. That defendant has the “advantage” of the “fundamentally different” rule. Nothing in Powell and English suggests that a defendant who realised that one of the attackers might kill with intent to kill can enjoy the benefit of the rule. The liability of such a person is not “parasitic”, to use the words in Smith and Hogan, pages 192-193. He realises that the crime of murder may be committed. We agree with Mr Smith.

It might be thought that a defendant who foresees that P might kill with intent to cause really serious bodily harm would also be guilty of murder even though P’s act was fundamentally different. The second certified question does not specifically deal with a foresight of this kind. It deals with the defendant who foresees or realises that P would or may act with intent to cause grievous bodily harm. However, Lord Hutton in Powell and English (at page 29) approves of the passage in Gamble [1989] NI 268, at 283-284. The knee-cappers, it could be said, “must be taken to have had within their contemplation the possibility that life might be put at risk”. Given the nature of knee-capping, this must be right. Nonetheless, so it seems, they will not be guilty of murder if P’s act was fundamentally different. Mr Smith did not dissent from the proposition that this category of defendants may take advantage of the “fundamentally different” rule. (Cf Attorney-General’s Reference No 3 of 2004 [2005] EWCA Crim 1882, paragraph 29)

Given the above, question 4 would on the facts of this case come into play only if a defendant (not intending Tyrone Clark to be killed or not realising that one of the attackers might kill him with intent to kill):

As to (iii) Mr Smith pointed out that the Court in Neary [2002] EWCA Crim 1736 confirmed that realisation that one of the attackers might cause the victim really serious bodily harm intending to cause him such harm is sufficient for murder. The judge did not include this category within question 3 and thus his direction was overly favourable to the defendants.

A defendant fitting within one of the above three categories will be guilty of murder or manslaughter “if the lethal act carried out by the primary party is [not] fundamentally different from the acts foreseen or intended by the secondary party.”

For the purposes of analysing question 4, we shall assume that question 3 was so worded that the jury only went to question 4 if they were sure that a defendant came within one of the three categories.

We thus turn to question 4 which has two parts.

We return to the second part later. The first part of question 4 reads:

“Are you sure … that the actions of the knifeman in producing the knife and stabbing Tyrone Clarke [as he did] with it were within the scope of the common purpose of those attacking him which the defendant joined …” (The words in square brackets were added in orally)

To answer that question the jury had to go to the written directions about the scope of the common purpose. For our purposes the written directions are sufficiently encapsulated in the following passages in the written directions:

“However, if the injury which in fact cased the death of Tyrone Clarke was inflicted by the actions of one attacker of a type entirely different from actions which another attacker foresaw as part of the attack, only the former is guilty of murder; that is because he has gone outside the scope of the joint enterprise or common purpose of the attackers.

…

… it is for you to decide whether the production and use of a knife to stab Tyrone Clarke was so different in character as to be outside the scope of the common purpose of the attackers.

…

Is the character of a knife e.g. its propensity to cause death, fundamentally different from the other weapons being openly carried? ” (Emphasis added)

As we have said, it is Mr Harrison’s case that the judge should have directed the jury about the effect of the knifeman having an intention to kill. Presumably the judge would tell the jury that if that was or may have been the knifeman’s intention [which would probably not be in dispute] then:

“that was a factor which they had to [could] take into account as tending to show that the actions of the knifeman were of a fundamentally different character and thus outside the scope of the common purpose”.

We note, as Gibbs J pointed out in argument, that Mr Harrison’s suggested direction would only be applicable if the jury concluded that, at the least, the knifeman may have intended to kill. If they were sure that the knifeman did not intend to kill but only intended to cause serious bodily harm, then the intention of the knifeman would be irrelevant to the issue of whether his actions were of a fundamentally different character. Thus the defendant would be in a more favourable position if the killer intended to kill than if he intended no more than really serious bodily injury. If this is the law it would be one further refinement in an already complex area. It would make the directions on law even harder to design and follow than they are already.

We note a further difficulty. If the alleged knifeman is on trial then the jury would have to be sure that he intended to kill or cause serious bodily harm before convicting him of murder. Assume that they are not sure that he intended to kill but are sure that he intended to cause serious bodily harm. When considering the position of the other attackers they would ask them selves whether the knifeman may have intended to kill and then, if that be the case, apply Mr Harrison’s suggested direction.

There is one further preliminary point to be made. If Mr Harrison is right, then in practice his suggested direction is likely to have to be given in almost all cases- it would be rare for a jury not to find that the killer may have intended to kill.

Mr Harrison submits in support of his proposed direction that:

“The prospective dangerousness of a weapon can only be determined by reference to the contemplated manner and circumstances of its use. P’s intention to kill transforms the dangerousness of whatever weapon is at his disposal. The characteristics of a weapon in its inert state are not often the true measure of its dangerousness.”

We have difficulty with this proposition. Why does P’s intention only to cause serious bodily harm not also transform “the dangerousness of whatever weapon is at his disposal”?

Mr Harrison relied in particular upon two passages, one in Uddin [1999] QB 431 and one in Anderson and Morris [1966] 2 QB 110, at 120.

In Uddin Beldam LJ said (at page 441):

“(i)

Where several persons join to attack a victim in circumstances which show that they intend to inflict serious harm and as a result of the attack the victim sustains fatal injury, they are jointly liable for murder; but if such injury inflicted [presumably at least] with that intent is shown to have been caused solely by the actions of one participant of a type entirely different from actions which the others foresaw as part of the attack, only that participant is guilty of murder.”

(ii)

In deciding whether the actions are of such a different type, 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.”

It was this passage in Uddin which led us to grant leave to appeal on this point, albeit that we expressed some doubt about its correctness or about how Mr Harrison was seeking to use it.

Mr Harrison comments on this passage:

“This develops the underlying principle noted above [see paragraph 25 above], highlighting the material difference to the risk profile of the enterprise from: (i) the lethal potential of the fatal weapon compared with other weapons used or contemplated, and (ii) the intention to kill.

•

As argued above, the propensity of a weapon to cause death may (and frequently will) depend entirely upon its being used with that intention.

•

Even where the same type of weapon is in use, its propensity to cause death wielded by someone who intends to kill the victim will be materially different from that propensity in the hands of someone who does not intend to kill.

•

‘… or the use of such a weapon’ must mean to include the manner of its use, (as Lord Hutton emphasised in [Powell and English] …).

•

Uddin (ii) refers to the characteristics of a weapon and the intention to kill conjunctively, (reflecting the circumstances of that case). But there is no reason in principle to view them conjunctively. Uddin (i) allows for the use of a weapon to take the fatal actions outside the enterprise without reference to intention. And an unforeseen intention to kill is just as capable of transforming the essentials of the enterprise in which a particular weapon is foreseen. It is not the law that foresight of the presence of a particular weapon makes participants liable for all the consequences of its use.”

The other passage upon which Mr Harrison relies comes from the judgment of Lord Parker CJ in Anderson and Morris cited with approval by Lord Hutton in Powell and English at page 28 when considering the second certified question. The passage reads:

“It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from 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.” (Emphasis added)

Mr Harrison placed some reliance upon Attorney-General’s Reference No 3 of 2004. The facts were unusual if not artificial. K murdered the deceased, V, by shooting him in the head at point blank range. The issue was whether H could be guilty of manslaughter on the following assumed facts: that he sent K and C to put pressure on V through terror knowing that they had a loaded firearm that might be deliberately discharged near him to maximise the pressure, but that H did not intend or foresee the possibility of injury or death to V. In the absence of that intention or foresight H could not be guilt of murder. Nor following Powell and English, could H be guilty of manslaughter if what did occur was fundamentally different from what H foresaw might happen. The trial judge had ruled that the act of deliberately shooting V at point blank range was a fundamentally different act from the foreseen act of using the gun to threaten V. The Court of Appeal agreed and the Attorney General did not seek to pursue the matter in the House of Lords.

In the view of the Court of Appeal, applying Lord Hutton’s view in Powell and English (at page 31) that “the unforeseen … manner in which a particular weapon is used” may take the case outside the scope of the enterprise, the Court concluded that using the gun to shoot V was outside the scope of an enterprise contemplating discharge of a gun to frighten but not contemplating incidental harm (see paragraphs 40-41). Applying the “fundamentally different” test, the court concluded that the act done was of a “fundamentally different character” from any act contemplated by H.

Mr Harrison analyses the case in this way:

“Although H’s liability was analysed in terms of what act(s) he had foreseen, the principal’s intention in relation to his acts that caused the death were not far beneath the surface. The submissions and analysis used expressions that barely concealed the relevance of P’s intention – (not as to the deliberate discharge of the gun but to the consequences of that action):

§35: the deliberate discharge of a loaded gun deliberately pointed at R;

§39: K shot him at point blank range;

§41: “the manner in which a particular weapon is used” … “K’s use of it to shoot R”.

Also (§50), the Court rejected the Attorney’s submissions on Gamble (that it was the use of a knife to kill V rather than the gun that was foreseen to kneecap), and said:

‘It was the unforeseen act of deliberate killing rather than punishing which took the killing out of the scope of the joint venture, and not the mere change in weaponry, with the consequence that [SPs] were acquitted of manslaughter.”

“Deliberate killing” is the language of intention.

It is impossible to separate from the act of deliberately shooting at V the intention to cause him at least serious bodily harm; and where the target is the head, it is unreal to separate the act from an intention to kill. What takes the fatal acts outside the joint enterprise is P’s intention kill V; the acts that cause the death are simply a manifestation of that purpose.

…

The Attorney-General expressly raised the question:

‘… does the variation in the intent of the participants at the time the act is done preclude the act from being part of the joint enterprise …?’. (§15).

At §55ff.: the submission was considered:

‘that an act cannot, as a matter of law, be outside the scope of joint enterprise if the only difference between the act the possibility of which was foreseen and the act which occurred is the state of mind of the primary party.’

The Court observed that no such principle of law could be found in Powell; English: ‘It would require the jury to convict of manslaughter albeit that the act of the primary party was ‘fundamentally different’ to that contemplated even as a possibility’, (§56).

The Court considered and distinguished Roberts, Day and Day and Po Ming Li, both being cases in which a conviction for manslaughter was upheld where principal parties had been convicted of murder.

Submissions:

Although the Court considered the issues in terms of acts rather than intentions, the analysis confirms that where the act(s) that cause death are driven by an intention to kill or to cause serious harm, it can be artificial to uncouple the intention from the acts when the question is what a secondary party foresaw as a possible incident in a criminal venture.

The case rejects the proposition that, as a matter of law, the intention behind an act cannot take that act outside the scope of a joint enterprise.”

Summarising the arguments of Mr Smith, we start for convenience with his submission about Mr Harrison’s reliance on Attorney-General’s Reference No 3 of 2004. Mr Smith submits that Mr Harrison is reading far too much into the case. What made the shooting of V a fundamentally different act was that the gun was being deliberately fired at V, not the fact that K must have intended to kill. We agree. If in a trial the jury were sure that K did not intend to kill V (because for example he deliberately shot at V’s leg), then the act would still have been fundamentally different from that foreseen by H. It was not the intent to kill which made the killing a fundamentally different act, but the deliberate shooting at V rather than the foreseen deliberate shooting not at V but to frighten V.

Mr Smith relied upon a number of passages in Powell and English to show that Mr Harrison’s submission was wrong. However all those passages came from those parts of the speeches which were considering the certified question in Powell and first certified question in English. The latter read:

“Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or with intent to cause grievous bodily harm, or must the secondary party have held such an intention himself?”

To this question the answer was “Yes”.

Any passages in this part of Powell and English cannot help the respondent because the questions under consideration were not concerned with the issue of the scope of a joint enterprise. The question which had to be decided was whether the secondary party could be guilty of murder if he did not have either the intent to kill or cause grievous bodily harm. The issue of the scope of a joint enterprise arose for consideration when the second certified question in English was being answered.

The second certified question read:

“Is it sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts foreseen or intended by the secondary party?”

Lord Hutton declined to answer the question precisely (see page 30). He confirmed (at page 28) that if the secondary party intended or foresaw that the principal would or may act with intent to cause grievous bodily harm, the secondary party would only be guilty of murder or manslaughter if he foresaw “an act of the type which the principal party committed”. Mr Smith draws attention to the use of the word “act”.

Lord Hutton also cited the passage from Anderson and Morris which we have set out above (paragraph 31) and said (at page 30) that “the issue raised by the second certified question … is to be resolved by the application stated by Lord Parker CJ” in this passage. A defendant is therefore not guilty of murder or manslaughter if the principal party “has departed completely from 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”. This passage is not free from difficulty. We note that the use of the word “could” must be wrong. Lord Hutton makes it clear that the test is a subjective one. It is the subjective state of mind of the defendant whose case is being considered which must be resolved. The second difficulty arises, or can arise, from the use of the expression “the concerted action of the common design”. It envisages that the attackers must have agreed on some action. There are cases, and the present case may well be one of them, where the attackers have agreed on a course of action. But in law a person who assists another in his attack on a victim does not have to have agreed with the principal party to carry out the attack. He may join with the necessary intent to assist even though the principal party does not know that he is assisting. See Lord Mustill’s speech in Powell and English at pages 11A-11C where he explained why in his view: “Intellectually there are problems with the concept of a joint venture …”. In the same case Lord Hutton said at page 31 D-E that it is preferable for a trial judge to direct the jury in accordance with the test of foresight rather than “the tacit agreement test” referred to in Anderson and Morris. See also Fury[2006] EWCA Crim 1258 at paragraph 16.

In the passage from Anderson and Morris the words “departed completely” are used. Lord Hutton, echoing the argument of counsel for English, also used the words “fundamentally different” (page 28). In Uddin Beldam LJ used the words “completely different” (page 441). In this case Wakerley J used some three different formulations including “fundamentally different”. “Fundamentally different” is used in the JSB specimen directions. During the course of the hearing before us and with the general agreement of counsel we opted for “fundamentally different” and that is the formulation which we shall use.

Applying what Lord Hutton said in considering the second certified question, there would appear to be two tests. A defendant who falls within the category covered by the second certified question will not be guilty of murder unless “he foresaw an act of the type which the principal party committed”. If what the principal party did was fundamentally different from what the secondary party foresaw, then the secondary party will not be guilty of murder or manslaughter. How do these two tests work together in practice?

After some debate during the course of the appeal it was generally agreed that the proper approach is that which is reflected in the four following questions.

We use P to describe the killer, in this case the “knifeman”, who is guilty of murder. We use V to describe the victim. We use D to describe a defendant other than P who has participated in the attack and falls within one of the categories set out in paragraph 22 above, namely he realised that one of the attackers, with intent to cause V really serious bodily harm, might kill him, or he intended that such harm would be caused to V, or he realised that one of the attackers might cause such harm to V intending to cause him such harm.

1.

What was P’s act which caused the death of V? (e.g. stabbing, shooting, kicking, beating).

2.

Did D realise that one of the attackers might do this act? If yes, guilty of murder. If no, go to the next question.

3.

What act or acts did D realise that one of the attackers might do to cause V really serious injury?

4.

Is this act or are these actswhich D did realise that one of the attackers might do, of a fundamentally different nature to P’s act which caused the death of V? If yes, not guilty of murder. If no, guilty of murder.

We have used the word “realise” rather than “foresee” but they mean the same thing in this context. Either could be used.

We have omitted reference in the four questions to “type of act” because it seems to us, on reflection, easier for a jury to consider the type of act which D realised one of the attackers might do, when examining the issue of “fundamental difference” (Cf Webb [2006] EWCA Crim 962). If D realised that one of the attackers might do an act of the type which P did, then that will, at the least, suggest strongly that what P did was not fundamentally different.

Question iii) might seem rather open ended but in a trial the prosecution would make clear what act or acts it submits D did realise that one of the attackers might do to cause V really serious injury.

It seems clear that the test of “fundamentally different” is an objective test. It is used to compare the acts which D realised one of the attackers might do and P’s act which caused the death.

The fact that it as objective test would not preclude the application of Mr Harrison’s suggested direction.

Mr Harrison accepts that in no appellate court has anyone before argued for, or considered, his proposed direction. Although the passages in Uddin and Anderson and Morris give support for his proposed direction, in neither case was the court considering an argument such as that now developed by Mr Harrison.

In order to decide whether Mr Harrison is right, we think it necessary to take into account the policy behind the rule confirmed in that part of Powell and English concerned with the certified question in Powell and Daniels and the first certified question in English. Lord Steyn, answering both questions in the positive, said (at page 14H):

“The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed.”

This case is a good example of the escalation of which Lord Steyn spoke.

Lord Hutton spoke to a similar effect (page 25F-H).

We have already adverted to two difficulties with the adoption of Mr Harrison’s proposed direction (see paragraphs 23 and 24 above). As we said in paragraph 25, his suggested direction is likely to have to be given in almost all cases- it would be rare for a jury not to find that the killer intended or may have intended to kill. Defence counsel would no doubt submit to the jury that the difference in intention must make the act of the principal party “fundamentally different.” The judge would have to tell the jury that the difference in intention could make the act of the principal party “fundamentally different” and might have to say that the jury were required to consider the difference in intention in deciding whether the act of the principal party was fundamentally different (see paragraph 15 above). How would a jury approach such a direction? What weight would a jury give to it?

If the jury decided, as they might very well do following such a direction, that the act of the principal party may have been fundamentally different because he intended to or may have intended to kill and the defendant fell within one of the three paragraph 22 categories, then, in our view, that would run contrary to the policy considerations upon which Lord Steyn relied when considering the certified question in Powell and Daniels and the first certified question in English. The “fundamentally different escape route” for those who fall within the category of persons covered by the second certified question would lead to many acquittals. Indeed in a case such as the present where the identity of the knifeman is not known all the defendants might well be acquitted. Thus “the accessory principle” would, at the least be “relaxed” if not “abolished” for the category of defendants falling into the category covered by the second question.

For these reason we reject Mr Harrison’s proposed direction. The judge should not give the direction for which Mr Harrison argues.

We turn to the second part of the fourth question. The second part was left to the jury as an alternative to the first part. It read:

“or that the Defendant whose case you are considering because of particular matters within his knowledge, realised that one or more of the attackers might produce and use a knife in the attack and that such attacker might kill with the intention of killing Tyrone Clarke or causing him really serious injury.”

Mr Harrison did not really dispute the correctness of the formulation of the second part of question 4. However, he argued as a separate ground (as did Mr Turner QC on behalf of Amin) that no jury could properly reach the conclusion that his client: “because of particular matters within his knowledge, realised that one or more of the attackers might produce and use a knife in the attack … .” We return to that separate ground later.

Before leaving this ground, we think it helpful to set out, albeit with trepidation, a more concise route to verdict in a case of this kind, avoiding the directions which were too favourable to the defendants. We assume an attack by a group of armed people on a person (V) who is killed during the attack. It is the prosecution’s case that the defendants were parties to that murder. The prosecution accept that none of the defendants on trial can be shown to have caused the death of V and there is no dispute that a distinct member of the group whom we shall call P caused the death. The prosecution’s case is that all of the defendants participated in the attack intending (at the least) that really serious harm would be caused to V.

In order to convict D of murder the jury must first be sure that P unlawfully caused the death of V intending to kill him or cause him really serious bodily harm and secondly be sure that D played some part in the attack on V. The route to verdict could then be:

Mr Smith submitted that the expression “fundamentally different” would normally need no further clarification, albeit that the judge would summarise the competing arguments as the judge did in the present case. We agree.

Mr Smith did suggest that part the JSB direction on manslaughter was defective. We have not considered that issue but we shall forward his comments to the JSB.

We turn now to the other grounds of appeal.

The individual grounds of appeal against conviction of Kamer Akram, as expanded, are in summary as follows:

The judge should not have left it open to the jury to conclude that Akram foresaw the use of a knife.

The judge should not have permitted the jury to rely upon the evidence of Lovick, either wholly, or in respect of what he claims to have seen at the Rock Ginnel; and /or failed to give the jury any or sufficient direction about the danger of relying on his evidence; and/or erred in failing fairly to sum up the evidence which contradicted Lovick.

The judge failed adequately to sum up the significance of the appellant’s case that he was concussed at the scene of the offence.

The judge failed to deal adequately with the jury’s questions in the context of the possibility that Akram withdrew from the common purpose prior to the commission of the offence.

Mr Turner QC, on behalf, of Amin also argued the first of these grounds.

These grounds were modified and expanded by Mr Harrison in his skeleton argument, and his oral submissions. We propose to deal with the points raised in the order in which Mr Harrison raised them in his oral submissions.

Mr Harrison’s first submission related to the evidence in the case against Akram which was capable of being relevant to the issue of whether the actions of the person who used the knife (“the knifeman”) were fundamentally different to that contemplated by the appellant. (See the judge’s question 4 in the written directions to the jury.) In making his submission on this topic, Mr Harrison conceded that the jury would have been entitled to answer question 3 in the affirmative, in that there was evidence from which it could conclude that the appellant had formed an intention that really serious injury would be caused.

Nevertheless, Mr Harrison submitted that the evidence was such that no reasonable jury properly directed could conclude otherwise than that the use of the knife was fundamentally different from anything which the appellant contemplated, assuming that the appellant did not contemplate the possible use of a knife. With the exception of the fatal injury, the injuries found by the pathologist Professor Milroy were, in the context of a charge of murder, insignificant. The nature and location of the injuries, excluding the knife wounds, showed that the use of any weapons which may have been deployed to inflict them must have been fundamentally different from the fatal stabbing. A detailed analysis was made of the injuries. They were all superficial. Apart from the stab wound, none was serious enough to call for medical attention.

Associated with this submission was criticism of the judge for adopting an argument, advanced by the prosecution, based on Professor Milroy’s evidence relating to the effect of the victim’s death on the incidence of bruising. The prosecution had contended, on the basis of the Professor’s evidence, that blows inflicted around the time of or after the moment of death would not have resulted in bruising, or bruising as extensive, as it would have been if the blows had been delivered whilst the victim was still alive. Thus the bruising found by the pathologist may not fully have reflected the degree of violence used.

Mr Harrison argued that the judge should have intervened to prevent the prosecution from relying on the point. Alternatively he should not have reminded the jury of it, as he did in the summing-up, transcript page 85 lines 9-22. Rather, he should have directed the jury to ignore the point. Further, said Mr Harrison, the judge was inaccurate in his summary of the substance of the pathologist’s evidence on that issue; an accurate summary of his evidence could not have supported the proposition advanced by the prosecution.

In considering these submissions, we find it necessary to remind ourselves that Professor Milroy’s evidence was only part of the evidence about the relevant aspect of the case, namely the nature and degree of the violence contemplated by the alleged participants. There was much other evidence of which the jury was properly reminded. Bystanders spoke of the ferocity of the attack, with the use of blunt instruments and kicks by a number of men against the victim whilst he was defenceless on the ground. Police officers arriving at the scene described the violence being used as so forceful that the victim’s body was being raised off the ground. The jury could also properly take into consideration the events which preceded the attack, during which a number of men armed themselves in readiness for violence against the victim and his companion.

Plainly the absence of serious injuries other than the stab wound was a material factor for the jury to consider. But it was by no means conclusive. The extent of actual or contemplated violence is not necessarily fully reflected in the injuries which in fact result. It seems to us that the other evidence to which we have referred, and the evidence as a whole, amply justified the judge’s decision to leave to the jury the issue of whether or not the stabbing was so fundamentally different an action as to take it outside the common purpose. For the avoidance of doubt, we find the judge’s decision to be justified whether or not the appellant foresaw the use of a knife. The contrary, in our judgment, is not arguable on the facts of this case.

The point about bruising made by the prosecution, based on Professor Milroy’s evidence, was relied on as a response to Mr Harrison’s submissions which we have just rehearsed. It was in our view a legitimate point, founded on evidence not speculation, upon which the prosecution was entitled to rely. The judge cannot arguably be criticised for reminding the jury of the point. As to Mr Harrison’s related submission on this topic: we have considered the transcripts carefully; in our opinion the judge’s reference to Professor Milroy’s evidence cannot arguably be described as inaccurate or misleading.

It follows that it was open to the jury to give the answer “yes” to the first alternative posed in question 4, and on the basis of that finding, to convict the appellant of murder. We refuse leave on this point.

However, the prosecution also invited the jury to conclude that the appellant actually foresaw the use of a knife (the second alternative in question 4); the judge did not withdraw from the jury the possibility of a finding adverse to the appellant on this basis, indeed he reminded them of the prosecution’s contention. In his first discrete ground of appeal, Mr Harrison contends that the second alternative should not have been left to the jury in Akram’s case. We gave leave on this point. To that contention we must return.

Before doing so, we turn now to Mr Harrison’s submissions about Lovick’s evidence (ground 2). Lovick was a witness of bad character. On the 22^nd April 2004, the day of the incident, he had been prepared to engage in violence. At the conclusion of the incident he was himself arrested on suspicion of violence. This showed, Mr Harrison submitted, that he had his own interests to serve by giving false evidence about the events surrounding the death of Clarke. But, it was submitted, criticism of Lovick’s evidence should go much further. The evidence he gave about events at the Rock ginnel, saying that there were men present with balaclavas, one of them carrying a baseball bat, was contradicted by reliable evidence of other witnesses. Mr Harrison submitted that the jury should therefore have been directed to disregard his evidence in relation to events and descriptions concerning the Rock ginnel.

Equally if not more significant, it was submitted, were the contradictions between his description of what happened behind Brett Gardens, close to where the victim was attacked, and the evidence given by a female police officer, PC Marsh, who was the driver of a police car which arrived on the scene, causing the attacking group to run away. PC Marsh said that Lovick picked up a gold coloured baseball bat and struck another man, who turned out to be Akram, on the head with it. Akram had just been standing there, posing no threat, and apparently just let it happen. Lovick denied doing any such thing, though he did agree that he had thrown a half-brick at one of the attackers who was wearing a balaclava and wielding a gold coloured baseball bat, striking him and causing him to fall to ground; shortly afterwards, he said, the man removed the balaclava and was bleeding from the back of his head. Lovick did not know the man and could not name him: but the man was identified as the appellant by DNA on a balaclava found close to the scene. The condition of the balaclava and an injury to the appellant provided support for the fact that Lovick had thrown the half-brick, which was also found – albeit, as was pointed out on the appellant’s behalf, the injury was to the back of the appellant’s head, thus arguably inconsistent in that respect with Lovick’s account.

The appellant, who claimed to have been concussed by being struck with the half-brick, could not recall being struck by the baseball bat, and apart from the evidence of PC Marsh there was no other evidence of the blow to the appellant with the baseball bat. Another police officer, in the front passenger seat of the police car, did not notice it. There was no injury to the appellant corresponding with such a blow.

Mr Harrison submitted that, nevertheless, PC Marsh’s evidence was so compelling that a jury would be bound to accept it. The effect of it, together with the other unsatisfactory features of Lovick’s evidence, was to discredit him entirely as a witness, so that the conviction of the appellant insofar as it relied, or may have relied, to any material extent on Lovick was unsatisfactory. Furthermore, PC Marsh’s description provided support for the appellant’s case that he had been concussed before the production of any knife and/or the perpetration of any serious violence. Thus the judge should have directed the jury that they should disregard his evidence; alternatively should have given a strong warning about the dangers of relying on it. His failure to give such a warning was a material misdirection.

In our judgment the assessment of Lovick and the weight to be given to his evidence were essentially matters for the jury. The judge reminded the jury of the evidence which contradicted his account. He reminded them of his bad character. He reminded them clearly of the trenchant criticisms of his evidence made by Mr Harrison on the appellant’s behalf. In our judgment it is not arguable that the judge was in error in failing to go further, whether by withdrawing Lovick’s evidence from the jury wholly or in part, or by giving them a formal caution about the danger of relying on his evidence. The judge’s approach to Lovick’s evidence, having seen and heard the witness, cannot arguably be described as wrong in law. It should be remembered that the witness was describing fast moving and violent events in which he was himself involved; and further, that he cannot reasonably have had any animus against the appellant, since he did not know him before the event, and was not able to name him to the police afterwards. We refuse leave to appeal on this ground.

We turn to ground 3. In our judgment the point about the appellant having been concussed at an early stage of the incident was adequately left to the jury. They were no doubt well aware of Mr Harrison’s submissions based on the point. The evidence which was capable of supporting it was properly summed up to them. We refuse leave to appeal on this ground.

We now return to the issue about whether or not the judge should have left to the jury, in Akram’s case, that he realised, because of matters within his particular knowledge, that one or more of the attackers might, with murderous intent and fatal effect, produce and use a knife in the attack; in other words, was the judge wrong to leave it open to the jury to convict on the basis of the second alternative in question 4?

None of the other appellants had specifically relied on this point in their grounds. Two of the other appellants could not reasonably have done so. Liaquat Ali was, according to Lovick, actually armed with a knife as he approached the deceased. In the case of Islamur Rahman, there was, we are satisfied, evidence from which the jury could find that he was aware that Qasim Majid might produce and use a knife in the fight which he knew was about to take place.

However, in the case of both Akram and Amin, evidence which could satisfy the second alternative in question 4 would have to arise by inference from the circumstances preceding the attack and arising out of the attack itself. As we indicated at the conclusion of the hearing, we give leave to appeal to both these appellants on that point.

Mr Harrison submitted that such material as there was about the use of a knife arose solely from the evidence of Lovick relating to Liaquat Ali; and to the three injuries to the deceased which the jury could have found were caused by a knife. Even assuming Lovick to be a credible witness, there was nothing which could make a jury sure that Akram saw the knife in Liaquat’s hand. Nor could a jury safely find, assuming Liaquat and/or somebody else used a knife or knives against the deceased, that other attackers realised that this might happen so as to become a party to it. Even if Akram actually saw the knife used, that did not in itself satisfy the test, since its use could not be shown to have been anticipated by him. The prosecution were inviting the jury to speculate. A further factor in Akram’s case arose from the evidence of PC Marsh, which suggested that Akram had been struck and concussed before a knife was used, a factor about which the judge, according to Mr Harrison, had failed properly to direct the jury.

On behalf of Amin, Mr Turner supported those submissions insofar as they applied to his client. He said there was no evidence to prove that Amin saw either Liaquat approaching with the knife or the deceased being stabbed; and even if Amin saw the stabbing, there was no evidence to prove that he continued to participate in the assault thereafter.

These submissions merit particularly careful consideration, as did the submissions in response from Mr Smith. In assessing their validity, the context, whilst not decisive, is important. It was open to the jury to infer that the attack on the deceased was carried out pursuant to a premeditated, concerted plan involving substantial violence. The way in which the participants assembled, the weapons they were seen to carry and remarks which were overheard all testify to that. Whilst no witnesses saw knives carried as the group assembled and moved towards the site of the fatal attack, it may be regarded as likely that each would have known the weapons others were carrying. Likelihood in itself of course is not enough.

The other significant aspect of the context is that it was open to the jury to find that the account of each appellant lacked credibility. Each had lied about their part, or the jury could so find. It was open to the jury to conclude that both relevant appellants participated fully in the attack on the deceased.

In that context, we have to ask ourselves whether there was the necessary minimum evidence upon which a properly directed jury could be sure that each appellant anticipated the possible use of a knife so as to justify an affirmative answer to the second alternative in question 4. It seems to us that there was such evidence. We identify in particular the violent joint attack on the deceased, first as he stood up behind Brett Gardens, and then as he lay on the ground; the words clearly heard by the witness Hamilton, who was further from the scene than the attackers, as the deceased stood there: “you black bastard, you’ve had it now”, following which the deceased was struck to the ground; the fact that, before he went to the ground, Liaquat Ali was seen to approach with a knife clearly visible by his side – visible to Lovick, who was further away than the attackers; and the injuries to the deceased, from which the jury could reasonably conclude that there were at least three lunges at the deceased with a knife in the course of the attack.

It is impossible to say precisely at which stage the fatal wound was caused. The later it was caused, the more cogent the inference that the attackers other than the knifeman (or men) must have seen the knife before its lethal use, and continued to attack knowing the knife was involved. The earlier it was caused, the more cogent the implication that the others were willing to persist in the attack knowing that one of their number was prepared to stab the deceased, rather than withdrawing once it was apparent the knife had been used. The jury could infer from this that the appellants must therefore have appreciated that likelihood beforehand. On either basis, the evidence was such that the jury could reasonably infer that the possibility of an attack with a knife was anticipated by each of these appellants. In our judgment this was a situation in which the justification for leaving the issue to the jury was properly based on a combination of circumstances, of which one on its own may not have been sufficient, but which together, we have no doubt, were ample to support the judge’s approach. Thus, whilst we have given leave to appeal on this point, we dismiss it as a ground for appeal.

The final subject of Mr Harrison’s oral submissions related to the way in which the judge dealt with the questions asked by the jury after their retirement, as far as they touched the case of Akram, and to the inadequacy as a consequence of the way in which his case was left to the jury. (Ground 4.) The jury asked three questions:

“i)

Can a person withdraw from a ‘common purpose’ once it has commenced (because of circumstances)?

ii)

…

iii)

With particular reference to question 2 [of the route to verdict] proof of participation, there are three separate and possibly conflicting guidelines; i.e. mere presence is not enough, did by his presence encourage others and did the defendant use violence.”

Mr Harrison’s complaints about the judge’s approach on this issue can be briefly dealt with. In a short summary towards the beginning of his summing-up, the judge misdescribed Akram’s defence (page 4 line 5). But as Mr Harrison concedes, this was remedied when the judge reminded the jury of Akram’s evidence, and when he put his defence to them accurately and in detail. The real complaint is that, in answer to the jury’s question, the judge did not direct them adequately or at all in relation to Akram’s case in the context of the jury’s enquiry about the circumstances in which a participant might withdraw from a common purpose. The answer to this complaint is a simple one. The appellant’s case was not that he withdrew; it was that he was prevented from participation or further participation by the blow which he received to the back of his head. Thus the question for the jury in his case was whether or not he actually participated with the necessary state of mind, not whether he may have withdrawn from the enterprise. Thus in our judgment it is not arguable that the judge erred in directing the jury as he did about Akram in response to the jury’s question.

We turn to a separate ground argued by Mr Collier QC on behalf of Islamur Rahman

On behalf of Islamur Rahman, Mr Collier seeks leave to appeal on a ground which arises from the manner in which the judge answered the questions from the jury, questions which, in so far as relevant, we have already set out (see paragraph 100 above). His argument is that the way in which the judge dealt with the issue of participation when he answered the jury’s question was so unfair to Rahman that the verdict of the jury is rendered unsafe.

Rahman’s case, which was set out at length for the jury at pages 92 – 102 of the summing up, was that he was present at the confrontation at the “Rock” ginnel during which Tyrone Clarke and Raffael Lovick hit him with pieces of wood. As a result he suffered injury to his face. He was not sure if he passed out or not but when he got to his feet he joined a group which was pursuing Clark and Lovick in the direction of Brett Gardens. He was carrying a “metal stick”. He was not in the front of this group and as he was out of breath and injured, others ran past him. When he got to the area of Brett Gardens, Clark was standing and hitting the fence at the rear of No.21. He then saw Clark go to the floor.

Having initially lied to the police in interview by denying presence at Brett Gardens, he later said:

“All I can remember is Tyrone hitting the actual fence … that’s when he went down to the floor and by the time I’ve got to him that’s when everything stopped. It happened too quickly, everything happened too quickly.” (Interviews page 25)

and

“I am telling the truth, I am not lying to you … I admit I lied in the first interview which I did wrong but this interview I’ve told you the truth … I am not going to lie to you I want to sort this mess out, I didn’t hit Tyrone or Raffael, I didn’t even see him after then but I really didn’t hit Tyrone while he was on the floor. I was there, I seen him on the floor getting hit by other lads but I didn’t, you know, hit him myself.” (Interviews page 26)

and

“Yeh, but I didn’t actually hit him. There were too many people. You’ve got to understand there were loads of people around him.” (Interviews page 26)

Rahman’s defence was not that he withdrew from a common purpose: it was that he did not participate in the crucial part of the incident in Brett Gardens. To characterise his defence as one of withdrawal is wrong. Before he answered the jury’s questions the judge discussed the way he should answer the questions with counsel. Mr Collier accepted, in the course of argument before us, that the directions on participation given to the jury by the judge when answering the questions faithfully reflected the submissions he had made to the judge. However, he complains about the following passage (page 51):

“… It really comes to this, does it not that [if] he was using violence himself, surrounding Tyrone Clark to enable others to do so it is no defence to say, “well I didn’t land the blow because there were fifteen others round and I didn’t have room to get my kick in”, if he is in that surrounding group; and as I say it is inevitable in a chase people are going to arrive at different times, … Was he deliberately there to encourage others and the fact that he was there did encourage others … there means at the back of twenty one.” (Reference page 151 line 26 to page 152 line 5)

This passage, submits Mr Collier, must be a reference to the defence of Rahman and citing this as an example in answer to the jury’s questions unfairly undermined the case of Rahman and weakened the arguments put forward on his behalf for the need for proof of encouragement.

We disagree. It is true that a different example might have been given by the judge to illustrate the directions he was giving the jury but in a case of this nature it was essential that the directions were focused on the issues which the jury had to consider. In the context of this case and in particular against the background of the detailed directions given by the judge in answering the jury’s question, we see no unfairness to Rahman in this passage. We accordingly refuse leave on this ground.

We turn to another ground argued on behalf of Amin

At trial, at the end of the prosecution case, Mr Turner on behalf of Amin submitted that there was no case to be left to the jury. The judge rejected that submission. Mr Turner renewed the submission at the end of all the evidence and again the judge rejected it. Mr Turner now seeks leave to appeal against Amin’s conviction on the ground the judge’s rulings were wrong.

The prosecution case against Amin was that he was involved in the incident outside the Matthew Murray School two days earlier which was the catalyst for the violence giving rise to this indictment. He had met others at Sholay’s takeaway and had been in possession of a silver baseball bat. He had the baseball bat in his possession later at the confrontation at the “Rock” ginnel and had been amongst the group which had pursued Tyrone Clark to the rear of 21 Brett Gardens, surrounded him there and he had participated in the violence towards Clark.

Later that night Amin had attended at the Accident and Emergency Department of a hospital some miles from Beeston (rather than at a local hospital) seeking treatment for an injury to his left elbow and forearm which he said he had sustained by falling off a motor cycle. In interview following his arrest he made no comment replies on legal advice to questions put to him and he proffered a prepared statement in which he accepted that he had been in Brett Gardens at the time of the incident having gone there to look at an incident which was “kicking off”. During the incident a brick had been thrown at him causing the injury to his left arm. At that point he left the area and was taken to hospital.

It was the defendant’s case that he had been involved in the incident outside the Matthew Murray School and on the day of the killing he had received a phone call telling him to attend at Sholay’s takeaway. At the takeaway he had learned that there was going to be a fight with Tyrone Clark and he had gone along in a group of about seven to see what would happen. One of the group (Petch) had been in possession of a silver baseball bat and he, Amin, had used it on the way to the estate to hit stones. When the group split up to go different ways, he returned the baseball bat to Petch. Later he met up with others in the “Rock” ginnel where a confrontation took place. During this confrontation he was not armed. The defendant admitted that he had been part of the group which chased Clark and Lovick across Lady Pit Lane and into the ginnel behind Brett Gardens hostel but there he had been hit by a brick, injured and thereafter took no further part in the incident.

The evidence that Amin was at the rear of 21 Brett Gardens came from Raffael Lovick whose evidence was the cornerstone of the prosecution case against Amin. The prosecution concede that were the jury to have rejected Lovick’s evidence, there would have been insufficient evidence to prove that Amin was a participant in the violence at the rear of 21 Brett Gardens. However, they say not only is Lovick a credible witness but there is also evidence which supports him. The defence, on the other hand, say that Lovick was such an unreliable witness that no jury properly directed could have convicted on the strength of his evidence and in addition that there is evidence from other sources which further undermines the reliability of Lovick.

Lovick had made a witness statement to the police on 23^rd April 2004 in which he gave an account of what he said he saw happening at the rear of 21 Brett Gardens. He named “Ishy” (Rahman), “Kamma’s older brother” (Amin) and “Liaquat”, Ali’s older brother together with an Asian who had had a CS gas spray as surrounding Tyrone Clark and taking part in the assault on him. He then saw Liaquat Ali approaching Clark carrying a knife and on doing so he tried to find a stone or stick to protect himself and Tyrone Clark. He went to a hedge and found half a brick. The statement continues:

“I then went back towards the group surrounding Tyrone and noticed that he was now laid upon the floor and the group had surrounded him and were kicking him. All of this group had some sort of weapon other than the one who had the CS gas and Kamma’s older brother. I couldn’t see the faces of the ones who were hitting Tyrone as they had their backs to me but they were all part of the same group who had been chasing us earlier.”

In evidence in chief, Lovick came up to proof but he added that Amin was in possession of a baseball bat at the rear of 21 Brett Gardens. He stated that he had thrown a brick on two occasions; one in the “Rock” ginnel and the other in the Brett Gardens ginnel. On neither occasion did he see whether the brick struck anyone. This evidence was consistent with the defendant’s case that he was struck and injured by a thrown brick. When cross-examined by Mr Collier on behalf of Rahman, Lovick confirmed the accuracy of his witness statement.

In cross-examination on behalf of Amin, Mr Turner put the passage quoted above to Lovick and Lovick conceded that he had no recollection of Amin having a baseball bat at that time. In response to further questions based on this passage, Lovick said that he had not seen Amin’s face again after the confrontation at the “Rock” ginnel and had merely assumed that Amin must have been part of the attacking group outside the rear of 21Brett Gardens. He also accepted at the conclusion of the cross-examination that he could not really say whether Amin had ever reached the rear of number 21.

In re-examination Lovick reaffirmed the accuracy of the content of his witness statement, said that his recollection of events was clearer when he made the statement than it was in court and that Amin was very close to Tyrone Clark when Clark was standing and that Tyrone Clark was being hit by everyone who was there.

Further doubt is cast on the reliability of Lovick’s purported recognition of Amin, it is submitted, by other pieces of evidence. Firstly, when PC Wood spoke to Lovick immediately after the events at 21 Brett Gardens, Lovick named five people as being involved in the attack on Clark but did not name Amin. Secondly, when Lovick attended an identification parade in respect of Liaquat Ali’s elder brother he picked out two volunteers whom he knew as participants in the incident. He claimed to have been very close to them during the incident and to be sure of his identification of them. In relation to each man there was strong evidence that he was not present at the incident.

The third piece of evidence relates to Amin’s brother Kamma. Lovick did not suggest that Kamma had been present at any part of the incident. However, there was evidence from Jodie Kemp, a prosecution witness, that both brothers had been present at the incident at the “Rock” ginnel and that Kamma was in possession of a baseball bat. She was unsure whether or not Amin had a weapon. Later, she said she saw Kamma fleeing from the rear of 21 Brett Gardens. A further witness, Venard, said that he had seen Kamma at the “Rock” ginnel and in the group attacking Tyrone Clark at the rear of number 21. Jodie Kemp and her sister, Lindsay, also a prosecution witness, said that the brothers Kamma and Anjum Amin looked similar in appearance.

Mr Turner submits that the identification of Amin by Lovick as being in the group of similar looking young men with no suggestion that he was wearing clothing of a distinctive nature was the weakest of identifications and that the evidence of a further witness to the violence at Brett Gardens who said that all the Asians entering the area had some form of headwear further undermined the identification as there was no evidence that Amin had anything on his head.

Mr Smith, on behalf of the prosecution, submitted to the trial judge and to us that the jury was entitled to look at the totality of Lovick’s evidence and to consider and analyse the evidence he had given about the different stages of the incident i.e. before and after he had looked for a stone or brick. Moreover, the evidence relating to the suggested similarity of appearance between Amin and his brother was not all one way; Lovick did not agree that the brothers looked similar and Venard described their quite different hairstyles. The prosecution produced photographs of the two brothers taken soon after the incident from which it was clearly open to the jury to find that the brothers did not look similar and in the light of which they could evaluate the suggestion of confusion.

In addition, the evidence that Amin was in possession of the silver baseball bat shortly before the confrontation at the “Rock” ginnel, that he was seen running towards Brett Gardens with the group wielding weapons and that he sought treatment at a hospital other than a local hospital and where he gave a false account of how he came by his injury were all pieces of evidence, Mr Smith contends, which the jury could consider when evaluating the evidence of Lovick.

In considering the submissions made by Mr Turner, the trial judge rightly identified the test he had to apply and concluded that the reliability of Lovick’s evidence and the strength of the case against Amin were matters for the jury. In our judgment his conclusions were correct. There was a case to answer. In the summing up the judge clearly pointed out to the jury the issues which they had to consider and gave them the appropriate warnings. We refuse leave.

We therefore dismiss all the grounds of appeal. There remain two referred applications for leave to appeal sentence in the cases of Rahman and Akram. We shall hear those at a time convenient for all.