Miah & Ors, R. v

LORD JUSTICE HUGHES: The first part of this appeal involves the application of well-known principles of common enterprise to the particular facts of a murder committed in the course of a fight between rival groups of young men. The fight was the result of challenges, probably on either side, laid down and accepted. The defendants, who were part of one group, had travelled to the area of their rivals to seek them out for violence. They were armed and some masked for the purpose. At the end of the fight one of the rivals was dead and another badly wounded.

These defendants were convicted, we should we are sure assume on the basis of common enterprise, of murder, of wounding with intent to do grievous bodily harm and of an assault occasioning actual bodily harm. They all appeal against the murder conviction and some against the other convictions also.

The first and primary contention is that the judge ought to have withdrawn from the jury both the murder and its alternative manslaughter charges, and failing that, that his directions on common enterprise were, on the facts of this case, defective.

The defendants, who are chiefly of Tamil origin lived in Croydon. Their rivals, also Tamils, lived in Tooting. There had been bad blood between the two groups which had led to a number of previous fights. In the run up to the incident with which the court was concerned there had been exchanges of telephone calls between the two groups involving challenges to fight on one side or the other.

That evening the defendants and some of their friends had been gathered in Croydon drinking in a car park. Some time after 1.00 am a number of them set off from Croydon in two cars, to go to Tooting. The object was plainly to seek out their rivals in order to do them violence. There are known to have been five of them in a Vauxhall Astra and it looks as if there were about four more in a BMW motorcar. They, or at least some of them, were undoubtedly armed. Exactly who and with what was to an extent in dispute but there was certainly a cricket bat and not less than three bottles. Most of them had tops with hoods; some wore face masks. They arrived, so far as can be judged, a little after 1.30 am.

In Tooting the rival group was on this occasion not organised. There turned out to be only three of them to be found on the High Street having just come out of an all night shop. When they were spotted the Croydon cars stopped and an uncertain number of the occupants spilled out and gave chase to the Tooting men. The three Tooting men ran away. On any view they were outnumbered.

They ran into a fast foot restaurant called Chicken Cottage. The Croydon pursuers followed. The restaurant had an open plan kitchen behind a serving counter. The fleeing Tooting trio jumped over the counter. The pursuing Croydon men either did the same or got behind the counter through a door or hatch. From the back of the kitchen the pursued Tooting trio ran into a side lobby area, up some steps, through a staff area beyond that and then through a white door which led into a small store room. Beyond the store room, running along the back of the premises was a rear yard formed from what had originally plainly been an alley or entry to the back of the premises. Both the store room and the alley provided distinctly restricted space. The store room was about 6 metres by something less than 3 metres overall and the yard was 12 metres long by about 3 metres wide. Both were very heavily cluttered. There was metal shelving down one side of the store room and there were boxes and crates on the other, leaving a walkway between them, very significantly less than the overall width, perhaps about a couple of standard doorway widths or thereabouts. In the alley there were stacked crates, barrels, bins, a lean-to outhouse and a great deal of debris. The usable space varied along its length but again was significantly restricted. Both the store room and the yard were lit, the yard better at the store room end and perhaps not especially well.

The pursued, and at least a number of the pursuers, reached this store room/alley area. They were shut in there by the restaurant manager who wedged shut the white door. Within a maximum of two minutes of having been seen to run down Tooting High Street on the way in, several of the pursuers had scaled either the gates or the fence at the end of the alley and got out into the side road from which they were seen running back towards the High Street. Either there or in the side street they got back into their cars and made off. Of the three Tooting men chased, one escaped, it would appear fairly early on, the same way. Another, Mylvaganam, got himself out of the alley but not before he had been quite seriously injured. The third, a man called Kannan, was left in the alley either dying or dead.

The deceased, Kannan, had 31 separate identifiable injuries, all made with something sharp. Twenty of them were stab wounds, the rest were slashes or similar. Their combined effect was fatal loss of blood.

The other badly injured man, Mylvaganam, had a number of bleeding wounds to the face and head. They were consistent with having been inflicted by repeated blows with a cricket bat and that is what he said he remembered so far as he remembered anything.

Blood distribution suggested that there had been violence done to both those men, both in the store room and in the alley. It was, of course, impossible to say in what order events had occurred.

By the close of the Crown case, it was accepted that the evidence suggested that as the three Tooting fugitives passed through the kitchen, they had between them collected two kitchen knives from a magnetic wall rack. Since they continued to run out through the building to the back, it followed that it was accepted that those two knives had passed with them out to the store room and alleyway area. The cricket bat was undoubtedly taken out there because it was found afterwards in the alley and had been used. There was evidence, if the jury accepted it, that also taken out there by the pursuing group had been a broken bottleneck in the hands of one of them. What else, if anything, had been carried out there, or for that matter picked up and used whilst there, was a matter of complete uncertainty.

Of the two knives, one (stained with the blood of the deceased) was found in the alley not far from the body. The other was never recovered. There was, however, eyewitness evidence which, if the jury accepted it, and it was subject to hot dispute, showed that one of those running away afterwards was carrying a knife recognisable as similar to those used in the restaurant kitchen.

The third Tooting man, Thanabalasingam, had been struck on the head by a bottle thrown at him at an early stage whilst still in the kitchen. At the time he was behind the counter and the thrower, who was wearing a face mask, had been on the public side of it. This was the Tooting man who had escaped, it may well be comparatively early, from the rear alley. At all events he had escaped without being further injured and had, he said, gone to hide in a side road.

Having regained their cars, the whole of the Croydon party made off afterwards. The registration number of the Vauxhall Astra had been taken by a public-spirited cab driver and that car was stopped by the time it got to Clapham South. In that car were all the present defendants except for Shivarajah. The other car, the BMW, got away. Shivarajah, who was of its occupants had himself been injured in the fight. He presented himself not long afterwards, a little way, to a hospital at Lewisham. He had cuts to his skull and to the back of one shoulder, the latter perhaps properly described as a stab wound. He lied to the hospital telling them that his injuries had been sustained in play fighting and after treatment disappeared to the Midlands and was not arrested until about 4 months later. None of the other occupants of the BMW were arrested or charged. It was at least possible that other than Shivarajah, either one or two more of them had also got through to and taken part in the incident in the store room and alley.

In due course these four defendants were tried. There were then two other defendants. One was a man called Ratnasingham. He had been the driver of the Astra, both to the scene and away afterwards. But the evidence established, as we understand it, that he had not left the car. He pleaded guilty to counts of wounding Mylvaganam with intent, and a section 47 assault on Thanabalasingam and, in his case, the judge withdrew the homicide counts at the close of the Crown case. A further defendant, Shrivinayagan, also pleaded guilty to those same two lesser counts; the jury acquitted him of murder and/or manslaughter. The evidence in his case suggested that there was a real possibility that he never got beyond the white door into either the store room or the alley. The remaining four defendants (the present appellants) were all convicted of murder, as well as the other two counts. As we have said, all challenge the conviction in relation to murder. Two of them contend there was no case to answer upon murder, and all that in due course the direction on common enterprise was defective.

There was some evidence available to the Crown of particular actions ascribed to some defendants. In particular, Miah admitted that he was carrying a bottle when he ran into the restaurant and admitted he had thrown it into the Tooting men, although he said his was not the one which had hit Thanabalasingam. His, he said, had missed and smashed on the counter. In due course he also admitted fighting with Mylvaganam in the store room/alley along with and at about the same time as Mylvaganam was being attacked by somebody else with a cricket bat. The Crown suggested that it was Miah who was the person seen carrying the knife away from the scene afterwards.

Those pieces of evidence apart, the thrust of the Crown case was founded upon common enterprise. Said the Crown, this had been a combined attack on the Tooting men, in which weapons had been carried from the outset, and in which from the outset there had been an intention to cause really serious harm. What had happened was within that common enterprise.

As the case developed it was, however, left to the jury substantially on the basis of the events not from arrival in Tooting, but within the store room and alleyway areas. The Crown's case remained that at least in there there was a plain common enterprise to cause serious injury to the Tooting men, with weapons, those carried and whatever came to hand.

The contention of three of the appellants that there was no case to go to the jury, and of all of them that the direction as to common enterprise was defective can, we think, in this case sensibly be taken together.

At the heart of the combined submissions lie these propositions:

We agree, of course, that the precise concatenation of events would not specifically have been foreseen by the Croydon men who were taking part in the chase of the Tooting men. They would not specifically have foreseen, we accept, that the chase would take the two rival groups into a restaurant, that the restaurant would have knives available to hand and that the chased men would take possession of them. That kind of precise foresight is not what is necessary to establish guilt as a party to common enterprise. What establishes guilt on that basis is if what occurs is within the scope of what the defendant under consideration either intended or foresaw and thus lent into himself to, in taking part in a criminal enterprise.

We can see no room for doubt that there was a clear prima facie case that the Croydon group who pursued the Tooting men into the store room/alley shared a common enterprise to attack and injure them. That was why they were chasing them there. What the people who were chasing them contemplated was a matter for the jury. If what occurred was within the contemplation, then common enterprise could be made out. If, on the other hand, there had been a sufficiently fundamental departure from what was contemplated, then according to the principles explained in R v Powell and English [1999] 1 AC 1, there would not be. Whether there was a fundamental departure from what was in contemplation either intended or foreseen within the meaning of that expression in the authorities was undoubtedly a jury question. It is submitted there was no basis on which the jury could find other than that there was a fundamental departure. We disagree. We are quite sure that there was a very clear prima facie case that what was in contemplation by any of the Croydon men in the store room and the alley was the infliction of grievous bodily harm on their rivals by the use of whatever weapons came to hand.

It would have been open to the jury to conclude that anybody taking part in an expedition and chase of this kind would foresee that the opposition might be armed, as they themselves were and that whatever the opposition had by way of weapons, might well come to hand. In fact, in due course the judge limited the possible scope of common enterprise to one in which sharp weapons, such as a knife, broken bottle or glass might be used and we can see that they may well have been realistic on the evidence in this case.

Accordingly, we are unable to accept the proposition that because the precise manner in which the knives came to hand would not specifically have been foreseen, it followed that the jury could not conclude that the use of knives or similar sharp weapons was in the contemplation of those who penetrated to the store room and alley. Nor are we able to agree that on the facts of this case, participation in a common enterprise in the store room and yard could only be shown if an individual were shown to have been one of those who physically stabbed or cut the deceased, or held down or attacked somebody else with a specific intention of enabling the attack on Kannan to continue. There was ample evidence that what happened in the store room and alley was a joint attack by the Croydon men on the Tooting men, whichever of them happened at the time to be immediately accessible. This was hand to hand conflict between rival groups. It was not two separate assaults targeted independently on Kannan and Mylvaganam. Engagingly as the proposition has been put to us that those two attacks, one on Kannan and the other on Mylvaganam, taking place within a few feet of each other, both up and down the store room and the yard should properly be regarded as independent acts one of the other, we respectfully disagree.

As to encouragement, the judge in due course directed the jury in conventional terms. He told them clearly that mere presence at the scene of violence was not capable by itself of amounting to guilty participation, and he told them that what was needed was active act, including encouragement or support "by deed or word".

We are unable to accept the proposition that encouragement did not arise on the facts of this case. The reality was that because this was a joint attack by the Croydon team upon the Tooting team, any assault by one of the Croydon team on any of the Tooting team was capable of amounting to encouragement to others to act similarly in relation to somebody else in the Tooting men. Indeed, the very pursuit through the white door and into the alley and store room was itself encouragement to violence. The Croydon aggressors could only outnumber the Tooting group, if there were more of them than three. Those who joined in, provided they did so with the necessary intention or foresight, were we are satisfied, prima facie parties to a common enterprise and the jury was entitled to find that the murder was committed in the course of it.

Specific complaint has been made about the judge's bracketing of the words "encouragement and support". Says Mr Birnbaum QC, the latter waters down the former. We agree, of course, that in principle mere passive endorsement in the privacy of one's own mind is capable of being described as support, but could not be participation in a common enterprise. But as we have explained, there was no possibility that the jury could misunderstand the judge's use of the word "support" to include mere passive endorsement, because he told them that presence was not enough and that encouragement or support by deed or word (those are the important words) were what was required.

We are entirely satisfied that the judge's general narrative directions on the law were entirely correct. At the end of his summing-up he provided the jury with what is now the conventional form of flow chart for decision making usefully termed "steps to verdict". There has been some complaint that he did not sufficiently engage in discussion with counsel on its form, but we are unable to see that that is made out. He had invited and received written submissions and he clearly considered them. He was not obliged to enter into any prolonged debate. In any event it is not the process by which the document was formulated which matters, it is whether its contents were wrong.

Attention is drawn to step 4 which read as follows:

The pathologist had said that there had been multiple sharp injuries, which could have been caused by knives, screwdrivers, glass, bottles or a number of other things. He accepted that there were not less than two different weapons -- there might have been many more but there might have been as few as two -- and he accepted those two could have been knives. Says Mr Birnbaum, the judge's formulation of step 4 was in error to say that there was no dispute about the expression "knife or sharp instrument".

This one of the judge's steps to verdict went to the question of fundamental departure. The important question at that stage was what was in contemplation. The evidence was that a knife or sharp instrument had done the damage. It could have been two knives, it could have been something else. The judge's formulation was, we are satisfied, perfectly correct.

Lastly, the appellants contend that same "steps to verdict" document was potentially misleading at question 9 when it came to count 2, the alternative count of manslaughter. Question 9 begins:

As Mr Birnbaum rightly points out, a defendant might be guilty of manslaughter, as a secondary party, whether the principal stabber acted with intent to cause serious harm or without it.

It seems to us likely that by using the words "albeit not serious harm" the judge actually meant "not necessarily serious harm." But we accept the proposition that for a jury the way in which it was expressed might have been taken to mean that manslaughter arose only if the principal lacked the mens rea for murder. We are however unable to see how if that error was made or the words might have been understood in that way by the jury it can possibly affect the safety of the verdicts of murder, which the jury returned. Even if the jury had got to consider manslaughter, it could only have limited the circumstances in which a verdict of guilty of manslaughter could be returned. In fact, they never got to manslaughter, because they convicted of murder.

In all those circumstances, we are quite satisfied the grounds of appeal, so far as they challenge the treatment of the concept of common enterprise in this trial, must fail.

There is a second and distinct set of grounds of appeal which relate to the direction given by the judge under section 34 of the Criminal Justice and Public Order Act 1994. The defendants had said, all of them, little or nothing in interview by the police. Kumbay had said that "he didn't do any assault on that day" and when asked if he had stabbed somebody he said "no", otherwise he had declined to answer all questions. Those included how he got injuries to his hand and arm which might have been suggested to be consistent with seizing a knife. Miah made a two sentence prepared statement, but otherwise declined to answer any questions. He did no more than to deny that he was responsible. Nanthakumar told the police that he had not been there at all and further declined to answer a number of questions. Shivarajah, who had been arrested, of course, many months later, declined to answer any questions at all.

All the defendants, however, gave evidence before the jury and they gave evidence, all of them, in considerable detail. It is not necessary to set out the detail. They were given plainly over a period of some time. All of them gave accounts of events in the store room and the yard. They gave what were effectively blow by blow accounts of what each said they had done or seen in the yard.

Those accounts were all accounts which could have been given when interviewed by the police. What they all amounted to was confession, coupled with avoidance. Moreover, three of the defendants were proved at the trial to have blood on them which the Crown at least suggested was incriminating. Miah, Kumbay and Nanthakumar had blood of the deceased on them, Miah in one place only, the others in a number. Miah had Mylvaganam's blood on him and Nanthakumar had, in addition to the blood of the deceased, possible traces of Mylvaganam's DNA. Shivarajah, we should make clear, was not proved to have incriminating blood on him because, of course, he was not arrested until much later.

It follows that those three defendants needed, if guilty, to give accounts of events in the store room and yard, which were capable of explaining the presence of the blood without implicating them in physical attack on Kannan and the accounts which each gave did in fact do so. A simple example is Kumbay's evidence is that he had slipped and fallen near to the then recumbent and bleeding body of the deceased.

So far as we can see it was conceded on all sides that section 34 directions were appropriate in each case. The judge indicated, through discussion in open court with Crown counsel that he intended to give such directions and no counsel argued that he should not. The judge dealt with the section 34 issue in this way. He explained the nature of the law, in terms about which there can be no complaint. He gave the proper direction that adverse inference was not required but was a matter for the jury. He dealt properly, subject to one matter we will return to, with the explanations which each defendant gave for not having said previously what he was now saying to the jury. However, the judge dealt with what it was that the defendants had relied upon in court, but had not been said in interview, compendiously rather than individually. He prefaced his explanation of the law, which we have summarised just now in this way:

The appellants submit that in addition to the compendious nature of this direction there was a further and more fundamental flaw. They say that in the passage which we have cited, the judge was identifying, as the matters now relied upon by the defendants and thus relevant to the section 34 question, things which were merely broad denials and moreover some of them not in dispute.

That contention depends upon the analysis that there were four matters identified by the judge as the matters relied upon:

It is the fact that the defendants' narratives were all ones which incorporated into them the known and indisputable facts. Those narratives were either true or they were untruthful accounts which had been fitted round the known facts. When deciding which it was, the jury was, according to the law and in common sense, entitled to take into account the fact that the narratives were not advanced when they might have been, and not until after the opportunity to fit them to the known facts had arisen.

We have been troubled by the compendious manner of the direction. It is important, however, that this was not a case in which any defendant had said some things in interview but added additional significant things at trial. Essentially none of them had said anything earlier by way of narrative account of events in the store room or alley. Accordingly the need to identify, for the jury, what it was that was new was very much less pressing in this case than it is in some.

On examination of the particular evidence in this case, we conclude that if the judge had listed every assertion made by each defendant to which the section 34 approach could legitimately have been applied, the effect would have been significantly more damaging to each of them than the effect of the direction as given.

The same would be true if he had punctuated his summaries of the evidence of each defendant, as he would have been entitled to do, with the observation that this was an assertion which could have been made to the police bit had not been, and a reminder of the rule in section 34. We do not for a moment suggest he should have done that. We are conscious that as with Lucas directions trial judges are not infrequently alive to the danger of giving undue prominence to matters potentially damaging to defendants by over detailed section 34 directions. We surmise that that is why the judge adopted the relatively brief and compendious treatment that he did. We have nevertheless had to ask ourselves whether even with the best of motives the effect of what he said was to create unfairness to the defendants. We do think it would have been better if he found a way of explaining individually in each case that it was the exculpatory confessions and avoidances which raised the section 34 question. We are however satisfied, for the reasons we have given, that his omission to do so did not in this case damage the defendants or occasion unfairness to them. Indeed probably the reverse.

We do not agree that the defendants' accounts were not in issue. The whole case depended, in the case of each defendant on whether it might be true he had done no more than he said and in particular on whether he had taken part in a combined attack on the by then two Tooting men, realising that a knife or similar was being used in the very confined space available. That was precisely the issue.

It is also true that the defences were to an extent cut-throat, in the sense that Miah and Nanthakumar both implicated Shivarajah in the use of a knife in the yard and thus in the physical attack on the deceased, whereas he denied it. But that did not in end alter the fact that in the case of all four defendants, the accounts now given were new and could have been given earlier. In each case the issue had to be confronted: why were they not? That issue was the same in each case although, of course, as the judge made clear the answer had to be arrived at separately for each.

We do agree in one respect that the judge left out something which he ought to have said. In the case of Miah, whilst in custody the day after the interviews, he had been seen by a lady worker. He had said to her in distress that he did not want to say "no comment" any longer but indicated he knew what had happened. That provoked her to say that he could change his solicitors and in response to that he had told her that he was afraid for his family. That was relevant to the question of whether he had a reasonable explanation for failing to give his account the previous day. The judge seems to have intended to cover that in the course of his section 34 direction but in fact, because of the form of it, he did not do so. What he did to was to return later to the exchange with the lady worker, where he gave it neutral and suitable treatment. We do not think that the jury could possibly have failed to understand that it went to whether Miah could reasonably have been expected to give an account the previous day or had not given it because he was frightened. In those circumstances we are satisfied that omission, because that is what it was, is not fatal to the safety of this conviction.

Lastly we were asked to look at the question of whether the section 34 was defective for failure to relate it separately to each count. As was realistically conceded in argument the question was exactly the same in relation to each count.

In all those circumstances, the challenges to these convictions, and all of them, fail and the appeals against conviction must be dismissed.

LORD JUSTICE HUGHES: Miah and Nanthakumar ask us to say that their sentences are wrong in principle or manifestly excessive.

Miah, who was 20 at the time, but only just, received a life sentence with a minimum term of 17 years, subject of course to time on remand. Nanthakumar, who had been 17 at the time was ordered to be detained during Her Majesty's Pleasure and the minimum term in his case was 14 years, less of course time on remand.

The statutory starting point for Miah was 15 years. The statutory starting point for Nanthakumar, because of his age, was 12 years.

Both defendants take the point that in passing sentence the judge dealt with them upon saying these things about intent. First, that there was no evidence that anybody intended to kill when they had set off on the expedition. Secondly, from that stage, he was quite satisfied that they did intend serious harm to any victim who might be found. Thirdly, that they had to taken part in an attack which had been carried out with the intention of killing the deceased. That was no doubt based on the nature of the multiple wounds done to him. Each defendant contends that there was no basis on which the judge could conclude that he, taken individually, had an intent to kill, as distinct from taking part in a combined attack by way of common enterprise, in which attack somebody unidentified had an intent to kill.

We find it a little difficult to tell which of those two propositions the judge meant by his observations. But we accept, for our part, that the proper basis for sentence is not that an intent, a subjective intent to kill, could be proved in any case, but rather that there had been an intent to do grievous bodily harm from the time at least when they arrived in Tooting if not before, and that what then ensued was an attack in which somebody, unidentified had an intent to kill and carried it out.

There will be cases, particularly cases of individual single attacks and especially those committed on the spur of the moment, where the difference between an intent to kill and the intent to cause grievous bodily harm, may call for a very significant difference in sentence. As it seems to us, it is rather different where what one is dealing with is a planned episode of group violence with intent to do grievous bodily harm. That such a planned and orchestrated piece of violence may lead to a death in exactly the kind of the way that happened here is sadly only too common.

So far as Miah is concerned, he takes the additional point that his sentence is not in proper balance with that of Nanthakumar. Says Mr Birnbaum there was only 2 years and a bit in effect difference in age and the difference of 3 years is simply too much. For his part, in respect of Nanthakumar, Mr Evans submits that the increase from the starting point is in his case unwarranted. He draws particular attention to the fact that Nanthakumar was a man of previous good character and not yet 18 and that that could not be said of two other of the defendants, Kumbay and Shivarajah, both of whom had relevant convictions.

We think it is necessary to stand back from the cases and to look overall at the sentences which the judge has passed. We observe that he passed them after trial and after living with the case for no little time. He had to balance the different histories of the defendants, their different ages and, to some extent, some difference in what they which were demonstrated to have done in particular in the case of Miah, who was shown on his own admission to have taken a somewhat more active part than could be proved against the some others. The question for us is whether the minimum terms of 17 years and 14 years respectively are either wrong in principle or manifestly excessive. This was group violence, very seriously aggravated by a long history of vendetta. The judge was told that the police had been called out on something like 80 previous occasions to incidents between these two groups, though not of course necessarily involving these individuals. There is no question of punishing them for participation in previous incidents, which has not been proved. What aggravates the case so severely is that with that background the vendetta was pursued in the way that it was and with an intent to cause grievous bodily harm with weapons from the outset. It was not the result of some chance encounter but the result of a planned expedition.

We are satisfied that the judge was entitled, without error of principle or manifest excess to pass the sentences that he did. Whether other individual judges would have passed slightly longer or slightly shorter sentences or balanced the defendants slightly differently is not the question. We do not say that they would. These appeals against sentence, long as the sentences are, must be dismissed.