Lewis & Ors, R v

These appeals and applications arise out of a series of violent incidents involving two groups of men who had been out drinking in Bridgend on the evening of 8^th July 2007. The appellants, Rhys Lewis and Lee Ward together with the applicant, Mark Cook, were out together to celebrate Cook’s birthday. Lewis and Ward were in their early thirties; Cook was in his early forties.

Also on a night out in Bridgend was a group of younger men comprising Ryan Edwards, Ricky Williams, Ashley Evans, Mark Kilnan, Andrew Saunders and Jonathan Diamond. They were referred to at the trial as “the Croeserw boys”. We shall refer to them for convenience as “the boys”, as did everyone at the trial and on the appeal.

At about 9.45 pm Lewis, Cook and Ward went to a bar called Bar Inc. Later, at about 10.40 pm, the boys went to the same bar. Lewis and a young woman must have left the bar at about that time or very soon after, because they just missed a train to Cardiff at about 10.50 pm, having walked up Court Road, which leads from Bar Inc to Bridgend railway station.

Ward and Cook became separated in the bar. A minor altercation took place between Cook and Ricky Williams, after which Williams and his friends started to leave. Whatever exactly had occurred, it appears that it had angered Cook, who followed Williams towards the door. There was a further skirmish between them just inside the entrance to the bar, in the course of which Cook headbutted Williams. Cooke followed Williams into the street where blows were exchanged. At that point Ashley Evans also became involved.

Ward came out of the bar looking for Cook and to find out what was going on. Cook walked off and Ward went after him. It is not clear whether they exchanged words, but shortly afterwards Cook walked away. Ward then made two telephone calls to Lewis, as a result of which Lewis and Ward set off to meet each other. After meeting in Court Road, they walked back to the bar to look for Cook.

In the meantime Cook had walked by an indirect route to the station and was making his way back down Court Road when he saw the boys. As he ran past them he struck Williams once with his arm, breaking his nose and causing bruising and swelling of his cheek and cuts around one eye.

Cook, Lewis and Ward met up outside the bar. After a short discussion they went back up Court Road to the station, arriving there at about 11.07 pm. The boys were already there. As soon as the two groups came close to each other in the station car park fighting broke out, in the course of which Ashley Evans was injured, Mark Kilnan was knocked down and rendered unconscious and Ryan Edwards sustained an injury to his head from which he later died. The whole incident lasted only about a minute and was captured on two CCTV cameras.

As a result of these events Lewis, Cook and Ward were all jointly charged on an indictment containing the following counts:

With the exception of counts 2 and 3, the indictment was directed to events that had occurred in the station car park at the end of the evening. The Crown’s case was that Lewis, Cook and Ward had been acting together in pursuit of a common purpose when they attacked the boys in the station car park. When they regrouped at the bar they had decided to find the boys and give them a severe beating to teach them a lesson. With that in mind they set off up Court Road towards the station where they came upon the boys at the entrance to the car park and immediately attacked them. Lewis, Cook and Ward denied that there had been any plan to beat up the boys; they said that they had gone to the station to catch a train to Cardiff and came upon them in the car park by chance. The fight had been provoked by the boys, who were being abusive and aggressive. Lewis admitted that he had punched Edwards once because he had heard the sound of breaking glass and thought that Edwards was about to attack Cook. He said that the blow had not caused Edwards to fall down. Cook denied having assaulted Edwards altogether. It was accepted that at that stage Ward had been fighting with Ashley Evans some distance away and had not himself touched Edwards.

All three of them admitted having assaulted Evans; Ward and Cooke denied any intention to cause him really serious harm; Lewis said that he had been acting in defence of Ward.

The assault on Kilnan occurred very close to the place where the attack on Edwards had taken place and very shortly after Lewis had punched Edwards. Cook and Lewis both said that they had acted in self-defence, but Lewis later accepted that his actions might have gone beyond that. However, he denied having intended to cause really serious harm.

Counts 2 and 3 of the indictment related to the earlier incident in Court Road when Cook had struck Ricky Williams in the face as he was returning from the station to the bar. Cook said that he had been running through the group of boys when Williams tried to stop his progress. He admitted that he had feared attack and had struck Williams once in the face, but he did not accept that he had caused Williams’ injuries or that he had intended to cause really serious harm. Lewis and Ward said that the incident had had nothing to do with them.

It will be apparent from this somewhat abbreviated description of the events and the charges in the indictment that the case raised complicated issues of fact as well as the principles of law relating to self-defence and joint enterprise. It therefore presented a challenge to the judge, especially given the need to direct the jury on the application of the law to a wide range of possible findings of fact.

The trial took place before Wyn Williams J. and a jury at the Crown Court at Cardiff between 4^th June and 31^st July 2008. On 31^st July 2008 Lewis and Cook were convicted on count 1 of the murder of Edwards;Ward was found not guilty of murder but guilty of manslaughter. All three were convicted on count 4 of attempting to cause grievous bodily harm to Evans and on count 5 of attempting to cause grievous bodily harm to Kilnan. Cook was also convicted on count 2 of causing grievous bodily harm with intent to Ricky Williams, no verdict being taken on count 3. The judge directed that Not Guilty verdicts be entered on counts 2 and 3 in respect of Lewis and Ward. He ordered that count 6 (violent disorder) be left on the file on the usual terms.

Lewis and Ward now appeal against conviction by leave of the single judge. Cook renews his application for an extension of time in which to apply for leave to appeal against conviction and sentence following refusal by the single judge.

Attention has been directed primarily to the convictions on count 1. Lewis appeals against his conviction for murder on two grounds: first, that the verdicts returned by the jury on Ward in relation to this count and count 5 are inconsistent, thus demonstrating that they failed to understand the judge’s directions on joint enterprise; second, that the judge failed to direct the jury in accordance with the decision in R v Powell and English [1999] 1 A.C. 1, [1998] 1 Cr. App. Rep. 261 and thereby deprived them of the opportunity of finding that Cook had gone beyond the scope of any joint enterprise in the attack on Edwards.

Ward appeals against his conviction on count 1 on the following grounds developed in counsel’s skeleton argument: first, that the judge failed to direct the jury correctly on joint enterprise; and second, that the verdict on count 1 is inconsistent with the verdict on count 5 and is therefore unsafe.

Cook seeks leave to appeal against his conviction on count 1 on the following grounds: that the verdicts returned by the jury on Ward in relation to count 1 and count 5 are inconsistent, (i.e. the same ground as that relied on by Lewis); that the judge failed to draw the jury’s attention to the fact that the evidence showed that he did not have time to strike Edwards; and that the evidence as a whole shows that he did not in fact strike Edwards.

Before turning to consider the various submissions made in relation to the convictions on count 1 it is necessary to describe in a little more detail the CCTV evidence of what occurred that evening. There were cameras both inside and outside the bar which captured some of the earlier events of the evening and two cameras in the station car park which captured the events there from different angles. None of the cameras captured the events to which counts 2 and 3 of the indictment related.

The recordings of events inside the entrance to the bar and outside in the street show Lewis, Cook and Ward together at various times, in particular before they set off to the station for the last time. That is scarcely surprising, however, since it has never been disputed that they were spending the evening together and could therefore be expected to join up again if they became separated for any length of time. Mr. Rees Q.C. for the Crown submitted, however, that their behaviour and actions immediately before they set off for the station for the last time, viewed in the context of their earlier behaviour, tend to support the conclusion that they set off with the common intention of finding and attacking the boys, or at any rate of giving them a good beating if they should come across them.

Earlier that evening Cook had displayed an aggressive attitude towards Williams when he was leaving the bar and had become involved in a violent scuffle with him and others after they had both emerged into the street. The jury had the benefit of seeing the CCTV recordings and were also provided with still photographs which enable one to grasp without too much difficulty the nature of their behaviour. The material was by no means conclusive; indeed, it hardly could be. However, taken in conjunction with the evidence of what followed, it was certainly capable of supporting the conclusion that the three men set off for the station together with the common intention of beating up the boys if the opportunity presented itself.

The events which unfolded when they reached the car park are dramatically recorded in the CCTV footage and the still photographs derived from it, in which the movements and gestures of the various participants are clearly visible from different angles. Together they provided evidence that was capable of supporting the conclusion that Lewis, Cook and Ward were acting together from the moment they arrived at the entrance to the car park and had instigated the violence. The picture that emerges from this and other evidence is that two of the boys, Jonathan Diamond (who was holding a bottle) and Andrew Saunders, ran off almost at once, leaving Evans, Kilnan, Williams and Edwards. Lewis struck the first blow against Evans, then he and Ward started to fight with Evans and the others. It seems likely that while that was going on Edwards moved away from the group towards the station and Williams ran off. While Lewis and Ward were fighting, Cook walked in the direction of the station building. Ward continued to fight with Evans, but Lewis soon left that group and followed Cook. Cook walked along the offside of a dark coloured vehicle parked facing the station and confronted Edwards, who by that time had had become separated from the rest of the group. Lewis walked along the nearside of the vehicle and approached Edwards from behind.

What happened next was not caught by the CCTV cameras because the vehicle obstructed their view, but was described by Lewis and Cook, albeit in somewhat different terms. Lewis, fearing, as he said, that Edwards had a bottle and was threatening Cook, admitted that he had struck him a forceful blow on the right side of the head, designed, as he later said, to “stop him in his tracks”. It had the desired effect. Edwards went to the ground, where he was punched several times by Cook, causing his head to strike the ground with considerable force on a number of occasions. Kilnan then ran up to assist Edwards and tackled Lewis. Lewis went to the ground, but was soon up again. Cook knocked Kilnan to the ground and both he and Lewis kicked him repeatedly, rendering him unconscious. The latter part of these events occurred in view of the cameras. While all that had been going on Ward had been fighting with Evans. Lewis and Cook joined him and the three of them can be seen fighting with Evans for a short time before Cook broke off and the incident came to an end. The assault on Edwards lasted no more than eight seconds; the whole incident lasted just under a minute.

It is convenient to consider first the question of joint enterprise and the nature of the judge’s direction. The defendants all denied that they had set off for the station with any purpose in mind other than to catch a train to Cardiff; the violence, they said, had been spontaneous and had been provoked by the boys. However, if the jury were satisfied that they had left with the common intention of beating up the boys, they had not intended to cause any of them really serious harm and none of them had contemplated that any of the others might do so. Anyone who went beyond that was acting on his own. As to the attack on Edwards, Ward said that in any event he had had nothing to do with it. Lewis said that, insofar as he and Cook were acting together, he did not intend to cause Edwards really serious harm and had not contemplated that Cook might do so. On that basis Mr. Jenkins Q.C. and Mr. Elias Q.C. both submitted that the judge ought to have directed the jury that they could not convict either Lewis or Ward of the murder of Edwards unless they were sure that he had contemplated the possibility that Cook might use sufficient violence to cause him really serious harm. It is common ground that the judge did not direct the jury in those terms, but Mr. Rees submitted that, having regard to the evidence before the jury, a direction of that kind was not required in this case.

The leading cases on liability for the acts of another committed in pursuance of a joint enterprise are R v Powell and Daniels; R v English [1999] 1 A.C. 1 and R v Rahman [2009] 1 A.C. 129. In Powell and Daniels three men visited a drug dealer. As he opened the door one of them shot him, as a result of which he died. In English the two defendants attacked a man with wooden posts. One of them, unbeknown to the other, was carrying a knife which he drew and stabbed the victim, causing his death. The question for the House in each case concerned the state of mind of the secondary party necessary to support a conviction for murder. In the case of Powell and Daniels there was one question for consideration, namely, whether it is sufficient for a secondary party to a killing to have realised that the primary party might kill with intent to do so or to cause really serious harm, or whether it is necessary for the secondary party to hold that intention himself. In the case of English there was in addition a second question, namely, whether it is sufficient to support a conviction for murder that the secondary party intends or foresees that the primary party will 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 intended or foreseen by the secondary party.As to the first question, the House held that it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm: per Lord Hutton at page 27.As to the second question, the House held that that if the act of the primary party causing death was not something which the secondary party had foreseen as a possibility, it took the killing outside the scope of the joint venture and the secondary party is not guilty of any offence: per Lord Hutton at page 30.

In Rahman a group of persons, including the four defendants, who were armed with various blunt weapons attacked a man who collapsed to the ground, where he was further assaulted with blunt weapons and kicked. He was subsequently found to be dead. The cause of death was one or two of three knife wounds, the infliction of which would have required considerable force. Each defendant denied having used a knife and said that he had joined in the attack with at most an intention to cause serious harm and without knowing or foreseeing that anyone else involved intended to kill the victim. The House clarified its earlier decision in Powell and Daniels and English, holding that, where the principal commits an unlawful killing with the requisite intent for murder, an accessory is liable for murder on the basis of his foresight of what the principal might do rather than his foresight of the intention with which the principal’s act might be performed; and that an undisclosed and unforeseen intention to kill on the part of the principal was not relevant to whether the principal’s act had been fundamentally different from the act or acts which the accessory had foreseen as part of the joint enterprise.

In a case such as this, in which a number of possible findings of fact are open to the jury, it is important that the judge ensures as far as possible that he gives the jury such directions on the law as are necessary to enable them to address the real issues and does not risk confusing them with unnecessary directions relating to findings that are no more than a theoretical possibility. In the present case the judge gave the jury nine pages of written directions covering the law relating to murder, manslaughter, causing grievous bodily harm with intent, self defence and joint enterprise. The directions were inevitably complicated; to have added what has been called an English direction would have made them even more so. The judge was right to consider whether it was necessary to add to the directions of law in that way. He decided that it was not; the question is whether he was right about that.

None of the defendants in this case used a weapon of any kind other than their fists and feet. The only joint enterprise alleged by the Crown was to give the boys a severe beating. If the jury was satisfied that there was a joint enterprise, therefore, it was one that involved punching, kicking and stamping. Whatever the precise degree of harm that any one of them may have intended or contemplated, it must, therefore, have been harm of the kind that may be caused in that way. It is well known, however, that a person who falls to the ground in a sudden and uncontrolled manner may suffer a life-threatening injury, for example, by hitting his head on the kerb. It is also well known that equally serious injuries may be caused by kicking or stamping on the head of a person lying on the ground.

If, as we think, there was evidence from which the jury could find that Lewis, Cook and Ward set off up Court Road on their way to the station with the common intention of giving the boys a severe beating, it then becomes necessary to consider what evidence there was of the nature and scope of the joint enterprise in which they were all participating. The behaviour of Cook when he attacked Williams outside the bar earlier that evening and his assault on Williams on his way back from the station provided some insight into his state of mind. The aggressive actions of all three in the station car park, however, provided the best indication of what they had in mind. We think it was beyond doubt that each of them intended to fight with the boys and in doing so to use such force as might be necessary to administer a severe beating, using their fists and feet. It was certainly open to the jury to find that each of them individually intended to cause really serious harm, but even if they did not, as a matter of common sense each of them must have realised that either or both of the other two might punch or kick repeatedly with such force as to cause really serious harm. Punching and kicking of a severity that was liable to cause really serious harm cannot in those circumstances have been unforeseen; it was an obvious possibility, if not the very kind of act they each had in mind.

In those circumstances the judge was right to hold that there was no need for an English direction in this case; to have given one would only have served to lengthen the already complicated directions and risk confusing the jury. Whatever the intention of Lewis or Cook at the time he struck or kicked Edwards, his acts were of a kind that the others must have foreseen as part of the joint enterprise. Mr. Jenkins submitted on behalf of Lewis that the degree of violence meted out by Cook was far greater than he had foreseen and thus fundamentally different from that which he had foreseen, and no doubt a similar submission could be made on behalf of Cook in relation to Lewis’s punching of Edwards to the ground. In our view, however, such a submission is wholly unrealistic in the circumstances of this case. On behalf of Ward Mr Elias submitted that the attack on Edwards went far beyond anything that he had either intended or foreseen, but for the reasons we have already given we do not consider that to be realistic. The fact is that the attack on Edwards was a part of a single enterprise in which all three joined in the understanding that fists and feet would, or might, be used to inflict really serious harm.

It follows that the judge’s failure to give an English direction in this case does not render the convictions on count 1 unsafe.

Ward was convicted of manslaughter on count 1 of the indictment and of attempting to cause grievous bodily harm with intent to Kilnan. Since he had not been directly involved in the assault on Edwards or Kilnan, he could be convicted of those offences only on the basis that he was a party to a joint enterprise with Lewis and Cook which had been formed at the time the three of them set off for the station. That being so, the verdicts returned on counts 1 and 5 in relation to Ward are inconsistent in law, since, if he foresaw that Lewis or Cook might assault Kilnan in such a way as to cause him really serious harm (as the verdict on count 5 required), he must also have foreseen that one or other of them might assault Edward in the same manner, thus rendering himself guilty of murder on count 1. Indeed, Mr. Rees did not seek to argue the contrary.

We shall consider in a moment what the consequences of that inconsistency are for Ward, but we shall first consider what implications those verdicts have for Lewis and Cook. Mr. Jenkins submitted that they show that the jury misunderstood the judge’s directions on joint enterprise and therefore any convictions which depended on the application of those principles are unsafe. Mr. Elias made a similar submission, arguing that the judge had failed to provide the jury with a written summary of the directions which set out a clear and coherent route to verdict, leading to confusion and inconsistent verdicts.

As we have already mentioned, the judge did provide the jury with written directions on the law, including the law on joint enterprise, the formulation of which has not been criticised, apart from the omission of an English direction which we have held to have been unnecessary. Nothing in those directions has been identified as being unclear or likely to have caused confusion. Whatever may be said about the verdicts in relation to Ward, there is nothing to indicate that the jury may have been confused in any way when considering their verdicts in relation to Lewis and Cook on count 1. There was, as we have said, ample evidence on which they could find that the two of them were parties to a joint enterprise to inflict really serious harm on all or any of the boys whom they might encounter and the verdicts on counts 1 and 5 reflect such a conclusion. The fact that different verdicts were returned in relation to Ward may raise a question in his case, but does not do so in theirs.

For all these reasons we are satisfied that the convictions of Lewis and Cook on count 1 are not unsafe.

One can approach the verdicts returned in relation to Ward on counts 1 and 5 in a number of different ways. Mr. Elias submitted that the jury must have found that, if he was a party to a joint enterprise of any kind, he did not foresee that Lewis and Cook might inflict really serious harm on Edwards, otherwise they must have convicted him of murder. Equally, however, they had no rational basis for distinguishing between the assault on Edwards and the assault on Kilnan. Ward was therefore not criminally responsible for the actions of Lewis and Cook in assaulting Edwards or Kilnan in such a way as to cause really serious harm. The jury should therefore have acquitted him on both counts and both convictions are unsafe.

However, Mr. Rees advanced another interpretation. He submitted that the better view is that although the jury was satisfied that all three defendants had been parties to an agreement to give the boys a beating and that Ward had foreseen that one or more of them might suffer really serious harm as a result, they were reluctant to convict him of murdering Edwards, since he had played no direct part in the attack on him. They did not, however, feel the same reluctance to convict him of attempting to cause grievous bodily harm to Kilnan because the way in which he fought with Evans showed that he was willing for a considerable degree of violence to be used with that purpose in mind.

We were referred to a number of cases in which the court has considered the effect of inconsistent verdicts. In R v Drury (1971) 56 Cr. App. R. 104 the appellant, a lorry driver, had been charged with the theft of 28 boxes of oranges and with two counts of obtaining by deception. He had short-delivered a consignment of oranges to a wholesale fruiterer, retaining the 28 boxes on his lorry with the connivance of his foreman and subsequently selling them to various local greengrocers. The Crown put its case on the basis that the appellant had dishonestly appropriated the oranges by selling them and that by selling them he had also obtained money by deception from the buyers. Since all three counts depended on whether the sales were dishonest, they stood or fell together, but for some reason the jury convicted the appellant of obtaining by deception but acquitted him of theft. The court rejected the proposition that whenever the jury has returned inconsistent verdicts the convictions must necessarily be quashed, saying that it all depends on the facts of the case. In that case, however, the court considered the verdicts to be so violently at odds that it felt obliged, to quash the convictions. notwithstanding the cogency of the evidence against the appellant.

A similar question arose in R v Durante [1972] 1 W.L.R. 1612, (1972) 56 Cr. App. Rep. 708. The appellant had been charged with handling a stolen cheque and endeavouring to obtain money on a forged instrument, namely, the same cheque. A blank cheque was stolen from a company’s cheque book. The appellant went to a public house and asked the manager to cash a cheque for him. He later admitted that he had bought the blank cheque for £2 from a man in a pub and had made it out himself, but he said he had been too drunk to form the necessary criminal intent for either offence. The jury convicted him of handling the cheque, but acquitted him of attempting to obtain money on a forged instrument.

The court referred to the case of Drury and to the earlier case of R v Hunt (1968) 52 Cr. App. Rep. 580 in which Lord Parker C.J. had cited the following passage from the judgment of Devlin J. in the unreported case of R v Stone:

“When an appellant seeks to persuade this Court as his ground of appeal that the jury has returned a repugnant or inconsistent verdict, the burden is plainly on him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they were an unreasonable jury, or that they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is on the defence to establish that.”

The court formally approved and adopted that as a correct statement of the law. Having done so it was satisfied that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the two differing conclusions and therefore held that the conviction was unsafe.

In R v Segal [1976] R.T.R. 319 the appellant was charged with driving in a dangerous manner and driving at a dangerous speed. Although he was said to have made some dangerous manoeuvres in the course of a ten mile journey through a built-up area, the essence of both charges was that he had driven at a very high speed. The appellant denied that he had done either. The jury, preferring the police evidence, convicted him of driving at a dangerous speed but acquitted him of driving in a dangerous manner. Scarman L.J. observed that since the evidence of the police officer and that of the appellant had been in direct conflict, the only real issue for the jury was which of them was to be believed. Scarman L.J. giving the judgment of the court said:

“By their verdict of guilty on the count of driving at a dangerous speed it is plain that the jury did reach the view that the speed was dangerous, and it is also plain by their verdict that on the broad issue of who was telling the truth the jury preferred, and indeed accepted, the evidence of the police officer, at least so far as that evidence was concerned with the speed at which the car was being driven.

As a matter of common sense and justice the jury might seem to have reached a very reasonable conclusion. They brought in a verdict of guilty of dangerous speed. They felt, or this is a fair interpretation of what they may well have felt, that really in those circumstances it was quite unnecessary, and perhaps indeed unfair, to bring in a verdict of guilty of driving in a dangerous manner since that verdict added nothing to the guilt of the appellant, who in their view was to blame for driving too fast. Nevertheless, as Mr Levene has submitted, those verdicts are as a matter of legal logic inconsistent.”

Having then adverted to the principle enunciated in Drury, he continued as follows:

“Mr Rylance for the Crown in the course of some very helpful observations pointed out that, though the legal logic of the matter is that these verdicts are inconsistent, the practical common sense of the jury in reaching the verdict that they did reveals no inconsistency in approach, but rather reflects the way in which the case for the Crown had been presented to them. He reminded the court that the jury might well have seen this case as consisting of two parts, linked of course, but nevertheless capable of being assessed separately. One part was the dangerous driving in coming suddenly without warning out of a minor road on to a major road, in overtaking at the brow of a hill and in zigzagging. The other part was the continuous high speed to which the officer spoke and which the officer said in his opinion was a dangerous speed. The jury may well have thought that it sufficed, for the reasons we have indicated, to bring in a verdict of guilty to the dangerous speed and to reach no final conclusion on the other incidents of the driving but to give the defendant the benefit of an acquittal there.

Inconsistent? Yes, in law. Unsafe, unsatisfactory or lacking in common sense? No, a perfectly understandable approach, in the view of this court. This is not a puzzling case. In Reg. v Drury (1971) 56 Cr. App. R. 104 the court was puzzled. In this case we are not; and certainly the existence of a formal logical inconsistency does not lead us to doubt the safety of the verdict on speed.

At the end of the day it is for this court to make up its mind under section 2 of the Criminal Appeal Act 1968 whether the verdict of guilty in all the circumstances was safe and satisfactory. We have reached the unhesitating conclusion that, although it is formally inconsistent with the verdict of not guilty on driving in a dangerous manner, it is nevertheless a safe, satisfactory and sensible verdict once the jury had decided that they preferred the evidence of the police officer to the evidence called for the defence.”

The circumstances which gave rise to the appeal in R v McKechnie, Gibbons and Dixon (1992) 94 Cr. App. Rep. 51 were somewhat closer to the present case inasmuch McKechnie was said by the prosecution to have committed an assault on an elderly man, which ultimately contributed to his death, in the course of a joint enterprise with his two co-accused, Gibbons and Dixon, neither of whom had any direct hand in it. All three defendants were charged on count 1 of the indictment with murder and on count 2 with causing grievous bodily harm with intent. That second count had been included to cater for the possibility that the jury might not be satisfied that the injuries sustained by the victim had contributed to his death. In the event McKechnie was convicted of manslaughter on the grounds of provocation and Gibbons and Dixon were convicted of causing grievous bodily harm with intent.

All three appellants appealed against conviction on the grounds that the verdict on count 1 in relation to McKechnie was inconsistent with the verdicts on count 2 in relation to Gibbons and Dixon. The prosecution had put its case to the jury on the basis that they only had to consider count 2 if they were unsure that McKechnie’s attack had caused the victim’s death. The appellants argued, therefore, that the verdict in relation to McKechnie on count 1 could only be supported if they were sure that it had, but the verdicts in relation to Gibbons and Dixon on count 2 could be supported only if they were not sure of that.

Auld J., giving the judgment of the court, referred to Drury and Durante. He then pointed out that the real inconsistency between the verdict on count 1 and the verdicts on count 2 lay in the fact that Gibbons and Dixon could be guilty on either count only if they had been parties to McKechnie’s attack. However, the jury’s finding that McKechnie was or may have been provoked, which led to a verdict of manslaughter by reason of that provocation, made it impossible to conclude that there had been any joint enterprise between them. The court concluded that there was ample evidence to support McKechnie’s conviction and that a proper direction had been given on causation and provocation. It therefore upheld his conviction. It also held, however, that the jury had not been told how to approach the position of Gibbons and Dixon if they were satisfied that McKechnie may have been provoked into committing the assault and for that reason quashed their convictions.

In R v McCluskey (1994) 98 Cr. App. Rep. 216 the appellant, who had been involved in a fight in the street in which another man had been killed, was charged with murder and affray. He said he had acted in self-defence. The judge directed the jury that if they convicted the appellant of murder or manslaughter, there was no defence to the charge of affray. However, the jury convicted the appellant of manslaughter but acquitted him of affray. The primary ground of appeal was that the verdicts were inconsistent and that the conviction was therefore unsafe. Giving the judgment of the court Henry J. said:

“The general rule in this Court is that where the jury convict on one count but acquit on another, this Court will quash the conviction on grounds of inconsistency if, and only if, the conclusion reached by the jury is one at which no reasonable jury who had applied their minds properly to the facts of the cause could arrive. (See the unreported decision of Devlin J. in Stone [1955] Crim.L.R. 120 C.C.A., formally adopted by this Court in Durante (1972) 56 Cr. App. Rep. 708, 714, [1972] 1 W.L.R. 1612, 1617E). But in the case of Trundell (unreported, June 28, 1991) it was emphasised that the fact that two verdicts were shown to be logically inconsistent might not by itself be a reason for quashing a verdict unless the only explanation for the inconsistency must or might be that the jury was confused and/or adopted the wrong approach, thus making the verdict complained of unsafe.

In this case, these verdicts were clearly inconsistent. Might the reason for that have been that the jury was confused and/or adopted the wrong approach? The appellant submits that that might have been the case. The submission is that as the only basis for acquittal on the affray charge is that the appellant was not acting unlawfully because he was acting in self-defence, so the jury must have believed that self-defence only reduced murder to manslaughter, rather than offering a complete defence.

The appellant has not satisfied us that that is a possibility. The jury here were trying the most serious crime of the calendar. Central to that was self-defence. They had had the direction on self-defence three times, put in the clearest terms. To emphasise the point, the last time was in the passage last quoted above – a plain and unambiguous answer to the jury's specific question. It is inconceivable that they misunderstood it.

The matter can be approached in another way by testing that conclusion against what other explanations there may be. Here, this jury, having taken time, acquitted of murder and convicted of manslaughter. They could justifiably have felt that they had then reached the only important decision in this case and that all that followed, namely count 2 affray, was academic — as in reality it was. A consecutive sentence would have been wrong as all arose out of the same incident. We regard the acquittal on the relatively minor charge of affray as reflecting no more than that. Certainly that acquittal goes no way to persuading us that this jury misunderstood the main issue on the murder charge. To make such a finding on so slight a basis would be an insult to the jury.”

None of the cases to which we have referred is quite on all fours with the present, which is hardly surprising. Apart from anything else, all of them, other than McKechnie, are cases in which the appellant had been acquitted on another count, thereby casting doubt on the findings on which the conviction was based. Nonetheless, the principles that emerge from them are reasonably clear: the only question for the court is whether the conviction is safe and it is for the appellant to satisfy the court that it is not by showing that the only satisfactory explanation for the inconsistency is that the jury is likely to have been confused or to have adopted the wrong approach when reaching their verdict. As McCluskey makes clear, whether the conviction is unsafe is a matter to be judged by the circumstances of the case as a whole.

In the present case the judge made it very clear to the jury, both in relation to count 1 and again in relation to count 5, that they could not convict Ward of either offence unless they were satisfied that he was a party to the joint enterprise from the outset. We think that there can be no doubt, therefore, that in convicting him on both those counts they were satisfied of that fact. Moreover, in convicting him on count 4 (attempting to cause grievous bodily harm with intent to Evans) it is clear that they were satisfied that when he took part in the violence he intended to cause really serious harm. In those circumstances we find it impossible to believe that the jury was not satisfied that he had foreseen that Lewis and Cook might act in a similar way. If that is so, Ward’s conviction on count 5 is safe. The anomaly is the conviction for manslaughter on count 1; on that basis the jury should have convicted him of murder. In our view the explanation offered by Mr. Rees is clearly the more plausible: the jury was unwilling to convict Ward of murder in circumstances where he had played no direct part in the death of Edwards. He may be fortunate in having been convicted of manslaughter rather than murder, but we are quite satisfied that the conviction is not unsafe.

In addition to the grounds with which we have already considered Cook seeks leave to appeal against his conviction for murder on the grounds that the evidence did not support the conclusion that he struck Edwards intending to cause him really serious harm. In support of that argument he produced for the hearing photographs of the deceased and diagrams showing his injuries together with written submissions based on various aspects of the evidence.

Having reviewed the evidence, in particular the CCTV evidence and the stills taken from it, there is in our view no merit whatsoever in any of his arguments. It goes without saying that it was for the jury to evaluate the evidence before them and none of the points made in the written submissions provides any grounds for thinking that the conviction is unsafe. Although the assault on Edwards happened very quickly, there was enough time for Cook to strike Edwards several forceful blows and the evidence of Lewis tended to confirm that he did so. It cannot be said that there was insufficient evidence to support the jury’s finding.

The attack on Ashley Evans began almost as soon as Lewis, Cook and Ward reached the station car park. Lewis struck the first blow, after which he and Cook moved away to confront Edwards, leaving Ward and Evans fighting. After the attacks on Edwards and Kilnan were over, Lewis and Cook returned to join in the fight, which was still going on. Mr. Jenkins submitted that as far as Lewis was concerned (and the same is true for Cook), the assault on Evans fell into two quite separate stages, in relation to each of which the issue of self-defence was raised. Accordingly, he submitted, it was necessary for the judge to direct the jury that they had to reach agreement on the facts relating to the first or second stage before they could convict. In other words, it would not do for (say) six of them to find that Lewis acted in self-defence at the first stage but not at the second and the other six to find that he acted in self-defence at the second stage but not at the first. The direction which it is said that the judge should have given is sometimes known as a Brown direction (see R v Brown (K) (1984) 79 Cr. App. Rep. 115). Mr. Jenkins submitted that since the judge did not give such a direction, Lewis’s conviction on count 4 is unsafe. Mr. Rees, on the other hand, submitted that the attack on Evans constituted a single continuing course of conduct and that therefore no direction of that kind was required.

It has often been said that the jury should not be overburdened with unnecessary warnings and directions which serve only to confuse them and that a Brown direction will be necessary only in comparatively rare cases where there is a risk that the jury will not realise that they need to agree upon the particular ingredient which they rely upon to find the defendant guilty of the offence charged. A number of cases in which the need for a Brown direction has been discussed were considered in R v Boreman [2000] 2 Cr. App. Rep. 17. Among them was the case of R v Gianetto [1997] 1 Cr. App. R. 1, in which the appellant was charged with the murder of his wife. The Crown’s case was that he had either murdered her himself, or had arranged for someone else to kill her. The defence asked the judge to give a Brown direction, but he declined to do so. The appeal was dismissed on the grounds that the appellant was guilty of murder in either event, being either the principal or a secondary party to what was a single offence.

In R v Christopher Smith [1997] 1 Cr. App. R. 14 the appellant had been present at a family party which degenerated into violence. He was alleged to have committed various assaults on those present, both while he was in the house and after he had gone outside. He was charged with two offences of assault and with affray, the latter being intended to cover what had gone on both inside and outside. He appealed against his conviction on the grounds that the judge should have given a Brown direction because there was a possibility that some of the jury might have been minded to convict on the basis of what had taken place only inside the house and others on the basis of only what had taken place outside. The appeal was dismissed on the grounds that it is unnecessary for the Crown to prove particular incidents in order to obtain a conviction for affray. As Lord Bingham C.J. pointed out at page 17, affray

“ . . . typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. Again, typically it involves a continuous course of conduct, the criminal character of which depends on the general nature and effect of the conduct as a whole and not on particular incidents and events which may take place in the course of it. Where reliance is placed on such a continuous course of conduct it is not necessary for the Crown to identify and prove particular incidents.”

However, he recognised that in some cases the position may differ, since he went on to say this:

“Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of conviction based on either sequence.”

Unlike affray, the offence of causing grievous bodily harm with intent is not directed to the overall impression made on third parties by what is typically a continuous course of conduct, but concerns one or more acts committed by the defendant against another person. Those acts may, of course, form part of a continuous course of action, but the overall course of action is not itself what constitutes the offence. In the present case the assault on Evans was continuous, since Ward was engaged throughout, following the initial punch by Lewis, but the contributions made by Lewis and Cook were separated in time. We doubt therefore whether they can properly be regarded as part of one continuous course of action in quite the same way as would have been possible if they had been charged with affray. Nonetheless, we do not think that the lack of a Brown direction in this case renders the convictions of Lewis and Cook on count 4 unsafe. The verdicts on counts 1 and 5 make it clear that the jury was satisfied that there was a joint enterprise involving all three defendants and that each of them intended or foresaw the use of violence of a kind that might cause really serious harm. In those circumstances, whatever part each played in the attack, Lewis, Cook and Ward were each criminally liable for the assault on Evans, either as principal or secondary parties. To have given a Brown direction would only have risked confusing the jury.

For all these reasons the appeals of Lewis and Cook against conviction are dismissed. Since there is no merit in the substance of Cook’s renewed application for leave to appeal against conviction, his application for an extension of time is refused.

Cook was sentenced to life imprisonment with a minimum period of 16 years in custody. Lewis was also sentenced to life imprisonment, but in his case the minimum period in custody was set at 14½ years. Cook renews his application for leave to appeal against sentence on the grounds that the minimum period in his case was manifestly excessive having regard to the fact that no weapons were used, that there was no intention to kill and that there was no significant premeditation. He also submits that there is objectionable disparity between the sentence imposed on him and that imposed on Lewis.

In our view there is no merit in any of these arguments. The judge was well-placed at the conclusion of the trial to assess the relative culpability of each defendant. As he rightly pointed out, there were aggravating factors in this case, in particular the fact that the offence was committed jointly, in a public place, late at night and was in the nature of a revenge attack. Cook was significantly older than Lewis or Ward and could have been expected to be a moderating influence; instead there was reason to think that his actions in repeatedly striking Edwards were the principal cause of his death. In our view neither the length of the minimum term itself nor the fact that it was somewhat longer than that imposed on Lewis is open to criticism.

Again, since there is no merit in the substantive application, we refuse the necessary extension of time.