Stringer v R

This appeal raises issues once again about secondary liability for murder and the so-called joint enterprise doctrine.

On 2 July 2009 at Manchester Crown Court (MacDuff J) the appellant father and son were convicted of committing a murder jointly with Jason McPhee, who had pleaded guilty.

The grounds of appeal fall under two heads. First, it is said that the judge’s direction on joint enterprise liability was confusing and incorrect. Secondly, complaints are made about the judge’s summary of the facts.

The murder occurred in the early hours of Saturday 1 November 2008 on the Partington Estate in Trafford. The victim was a 23 year old man. His name was Donald Donlan, but he was known by most of the witnesses as Bones and he was referred to by that nickname throughout the trial.

Bones had a reputation as a hard man. He was no stranger to fights and on one occasion he had disarmed three men who came at him with knives. He had been in and out of prison for offences of violence. He had enemies on the estate, but he also had friends and relations on the estate. These included his cousin Chantelle Longbottom, who lived with her partner JJ Fagan.

Bones died from stab wounds. It was a ferocious and sustained stabbing. The pathologist counted twenty-six sharp force injuries, including defence wounds to the victim’s hands. The fatal injuries were deep wounds to his chest and abdomen. From first to last it was the prosecution’s case that McPhee alone inflicted the injuries.

The case against Ian Stringer (Stringer senior) and Ian Bryan Stringer (Stringer junior) was that they were guilty as secondary parties.

Bones died after being chased across the Partington Estate. It is difficult to follow the full details without reference to plans and photographs, but for present purposes a summary is sufficient.

In the early evening of Friday 31 October McPhee and the appellants had been drinking together in a pub. The relevance of this was that CCTV footage showed the clothes which they were wearing. After they left the pub they eventually made their way to 13 Kent Road, where Stringer junior lived with his girlfriend, Yasmin Bell. In the early hours of the following morning there were a number of people at that property including the appellants, McPhee and Yasmin.

Some doors up the road, at 4 Kent Road, lived Chantelle and Fagan. They were woken by Bones shouting from outside to “Give me the bat”. Fagan went downstairs and let Bones in. He saw that Bones’s face was bleeding and understood that he had been bottled. He had been bottled by McPhee after their first exchange at 13, Kent Road, when Bones went there to get a cigarette. McPhee had followed him down the ginnel and done this on Cumberland Road and Junior had witnessed this. Bones had then gone to Chantelle’s to get the bat. Fagan gave him a baseball bat.

What happened after that was the subject of conflicting accounts.

According to Chantelle, Stringer junior shouted “He is in there”. Bones went out with the bat and chased three men up the street towards 13 Kent Road. The three men had shiny things in their hands. Soon afterwards she saw Bones surrounded by about ten people in a semicircle with knives. She saw him with the baseball bat knock one of the knives to the ground. Someone shouted “Bones you’re dead, we’re going to kill you”. Bones shouted back “Put your knives down and we’ll have a one on one”. Bones then ran off down a ginnel or alley which connected Kent Road and Cumberland Road. Bones was pursued by the group, but shortly afterwards a number of them came back.

Fagan’s evidence was different. He said that he saw Bones confronted by three men, but not by a larger group, and he did not hear any threats to kill him, but he described seeing Bones run off down the ginnel followed by the three men.

The appellants’ evidence, supported by Yasmin, was that Bones had turned up at 13 Kent Road, knocked at the door and asked for a cigarette. There was then a confrontation between Bones and McPhee, after which Bones ran off down the ginnel followed by McPhee. After a minute or so Stringer junior went down the ginnel out of curiosity. Stringer senior followed a few minutes later because he was concerned for Stringer junior. [See paragraph 10 above]

On the estate were some CCTV cameras which captured the next part of the story. The judge in his summing-up analysed the CCTV evidence in some detail. The footage showed a person being followed by three others along Cumberland Road from about the point where the ginnel joined it. From Cumberland Road the figures turned right into Laurel Walk and right again, across a grassed area, back to Cumberland Road. Although the CCTV footage was of poor quality and did not enable the figures to be identified, it did show their clothing. Mr Wood QC (whose submissions on behalf of Stringer junior were adopted by Mr O’Byrne QC on behalf of Stringer senior) accepted for the purposes of this appeal that on the evidence as a whole he could not realistically resist the conclusion that the person in front was Bones running away and that those following him were McPhee and the appellants.

Their route took them close to Lancashire Road, where one of the residents was Bones’s grandfather Donald Longbottom. His house overlooked the grassed area. He did not give oral evidence but the judge allowed the prosecution to read to the jury two statements made by him to the police. In his summing-up the judge directed the jury to treat his evidence with care because they had not seen him or heard his evidence tested. In his statements Longbottom described seeing Bones being chased and hearing threats to kill him. He put the incident as happening at 1.15 am, which was over an hour earlier than the events recorded on CCTV.

The chase shown on CCTV brought Bones back to about the point where he had joined Cumberland Road from the ginnel. The baseball bat which he had been carrying was later discovered by the police at the edge of the grassed area but the footage did not show how and when he came to be dispossessed of it.

Bones must have continued along Cumberland Road in the opposite direction to that which he had previously taken. After about 100 metres the road becomes a lane called Cherry Walk. A little further along Cherry Walk, on the left, there is a lane called Middle Lane and then a road called Cheshire Road. Middle Lane runs behind the gardens of the houses in Cheshire Road.

Bones died in Middle Walk at the rear of the garden of 19 Cheshire Road, about 200 metres from the final scene recorded on CCTV. Blood found at 11/13 Cherry Walk and at other points en route provided compelling evidence that the first stab wounds were inflicted before Bones reached Middle Lane and more stab wounds were inflicted in Middle Lane.

Nine witnesses gave evidence about the events in Middle Lane. Some witnesses gave evidence of hearing one of the appellants say “He deserves it” and of McPhee being encouraged to “Finish him off”, but they did not agree about which appellant said what. The judge described this part of the evidence as “shot with inconsistencies”.

The appellants’ evidence was that they had been following Bones and McPhee as spectators. Stringer junior arrived in Middle Lane after Bones and McPhee, but before any other witnesses came on the scene. The next person to arrive was Stringer senior. Neither of them saw McPhee do anything to Bones and they were unaware that McPhee was using a knife until right at the end, when Stringer junior tried to pull McPhee away. Both denied saying anything to encourage McPhee. Their evidence was supported by Yasmin Bell, who had followed the appellants at a distance.

The case for the prosecution was that:

The case for each appellant was that:

The judge provided counsel with a written text of his proposed directions on the main points of law and they were agreed with amendments.

After referring to the legal definition of murder and to that fact that the injuries were all inflicted by McPhee, the judge introduced the way in which the prosecution put the case against the appellants by saying:

The judge explained in broad terms that where a criminal offence is committed by two or more persons, each may play a different part, but that if they are in it together as part of a joint plan or agreement, each is guilty. He then outlined the prosecution’s case, summarised above, and said:

A little later the judge said:

Those were the essential parts of the judge’s general direction on secondary liability. It is fair to say that there was some amplification, repetition and interweaving with references to the way in which the prosecution put its case, to which we will return when considering the criticism that the overall effect was confusing.

In his review of the CCTV footage, the judge commented that if they were sure that it depicted Bones being pursued by McPhee and the appellants, and if they were sure that by that time the appellants knew that McPhee had a knife and was intending to use it to kill Bones or to cause him serious injury, “that pursuit of Bones would be capable of being participation in a common enterprise.”

Mr Wood submits that this was a misdirection. The passage came shortly before an overnight adjournment. Next morning Mr Wood raised his concern with the judge in the absence of the jury and invited the judge to give the jury a supplemental direction in a form which he had drafted.

On resuming his summing-up the judge gave the jury a supplemental direction which followed Mr Wood’s draft but with an omission. The judge said:

The judge omitted the following final words in Mr Wood’s draft:

After they had retired to consider their verdicts, the jury sent a note to the judge asking him to clarify what constituted participation as defined in his summing-up. In response he gave them the following direction:

Mr Wood submitted forcefully that the jury may not have been sure that either appellant did overt acts or said words of encouragement to McPhee in Middle Lane, in view of the contradictions and inconsistencies in the evidence about what was said and done at that stage. A critical factor leading to the appellants’ conviction may well have been that the jury were sure that they were each involved in chasing Bones in the circuit that he ran from Cumberland Avenue, along Laurel Walk, across the grassed area, and back to Cumberland Road, as shown on the CCTV footage. Mr Wood submitted that the judge ought to have directed the jury that such conduct could not in law amount to the conduct element required for them to be convicted of murder as aiders and abettors.

The submission was put in two ways. First, Mr Wood submitted that the act of aiding and abetting had to be at the very time that the offence was committed. The prosecution, he submitted, had to prove that the appellants were not merely “in on the chase” but “in at the kill”. His alternative submission invoked principles of causation and remoteness. He relied on the following passages in Mendez and Thompson [2010] EWCA Crim 516, [2011] 1 Cr App R 10:

Mr Wood submitted that it was impossible to regard the appellants’ conduct in chasing Bones around the circuit as amounting to assisting or encouraging McPhee to attack him and cause him serious injury or death; still less was it capable of being regarded as an act of assistance or encouragement at the time of the killing.

Mr Wood also submitted that the judge’s direction on the meaning of participation in a joint enterprise was inadequate and confusing to the jury, as evidenced by their note requesting clarification, and that his further direction made matters no clearer.

In principle, there is no special rule governing the criminal liability of accessories in cases of murder (as Lord Steyn stated in Powell and English [1999] 1 AC 1, 12).

In practice, the application of the principles governing criminal liability of accessories has caused particular problems in murder cases, mainly because of the wide definition of mens rea for murder. Cases not infrequently arise where D knowingly encourages or assists P to set out to cause serious injury to V but P goes far beyond anything which D intended or foresaw, according to D’s later account. That was the problem in Mendez and Thompson. It is not a problem in the present case, because the trial judge properly directed the jury not to convict either appellant unless they were sure that at the relevant time he knew that McPhee was armed with a knife and foresaw that he might use it to kill Bones or cause him really serious injury.

Secondary liability requires proof of the necessary conduct element accompanied by the necessary mental element. In this appeal the debate is about the conduct element.

The required conduct element is stated shortly in section 8 of the Accessories and Abettors Act 1861. This provides that anyone who

The Accessories and Abettors Act did not change the substance of what was required to established secondary liability. It stated the effect of what had been established by the seventeenth century. The Accessories and Abettors Act was essentially a procedural Act. It abolished the old rule that a person could not be convicted as a secondary party unless the principal offender had been convicted.

In its original form section 8 referred to “any misdemeanour” rather any “indictable offence”. It was amended by the Criminal Law Act 1977 on the abolition of the distinction between the previous categories of felonies and misdemeanours. Prior to the abolition of that distinction, the substantive law about who could be convicted of an offence as a secondary party was the same for felonies and misdemeanours, but for historical reasons the terminology was different in cases of felony (which included murder). There were three categories of person who could be convicted of a felony: principals in the first degree, principals in the second degree and accessories before the fact. A principal in the first degree was ordinarily the person who actually carried out the conduct element of the offence (in murder the killing) with the necessary mental element. (There might be more than one principal in the first degree if two or more persons each carried out part of the conduct element with the necessary mental element.) A principal in the second degree was someone who was present aiding or abetting the actual perpetrator of the felony at the very time when the felony was committed. An accessory before the fact was defined by Hale in his Pleas of the Crown (1682) vol 1, page 615, as a person who:

The language of section 8 was consistent with a line of earlier statutes. Not all were identically worded, but Foster commented on them in his Crown Law, re-published 3^rd ed (1809), at pages 130-131:

This history is relevant because it shows that for centuries secondary liability has attached to a person who aided or abetted another to commit an offence but was absent at the time of the offence. This was why he was termed an “accessory before the fact”. To abet was to assist or encourage but the word has become archaic. The Law Commission in its report on Participating in Crime (2007) Law Com 305, paragraph 2.21, accurately summarised the effect of the language of section 8 of the Aiders and Abettors Act:

The narrowing of the law for which Mr Wood contended in his first submission is unsupported by authority and would be wrong in principle. Mendez and Thompson is no authority for such a proposition. It is one thing to say that D cannot be liable as an aider or abettor unless P acted with D’s assistance or encouragement when he committed the offence. It is quite another to suggest that the act or words providing the assistance or encouragement must be performed or said at the moment of the commission of the offence. Such a limitation would exclude, for example, a person who supplied a murder weapon in advance of the crime knowing the purpose for which P wanted it. The law would be defective if an aider and abettor could escape liability by seeing that there was a gap in time between his conduct and the conduct of P.

Mr Wood’s alternative submission comes to the same result but is expressed in terms of causation and remoteness. The first part of paragraph 18 of Mendez and Thompson, on which Mr Wood relies, has proved to be controversial, with most academic commentators expressing either criticism or caution, although the opening words have to be read with what was said in the whole of paragraphs 18-23. The analysis set out in those paragraphs is consistent with the approach suggested by the Law Commission in its report on Participating in Crime, paragraphs 2.30–2.34, under the heading “Causation, connection and secondary liability”.

It is well established that D’s conduct need not cause P to commit the offence in the sense that “but for” D’s conduct P would not have committed the offence (see Mendez and Thompson at paragraph 23). But it is also established by the authorities referred to in Mendez and Thompson that D’s conduct must have some relevance to the commission of the principal offence; there must, as it has been said, be some connecting link. The moral justification for holding D responsible for the crime is that he has involved himself in the commission of the crime by assistance or encouragement, and that presupposes some form of connection between his conduct and the crime. The Law Commission observed at paragraph 2.33:

In a case of encouragement, as contrasted with assistance, the Law Commission suggested that the encouragement “must have the capacity to act on P’s mind”. The way that the court put it in Mendez and Thompson was that D’s conduct must (objectively) have constituted assistance or encouragement, even if P (subjectively) did not need assistance or encouragement. Whereas the provision of assistance need not involve communication between D and P, encouragement by its nature involves some form of transmission of the encouragement by words or conduct, whether directly or via an intermediary. An un-posted letter of encouragement would not be encouragement unless P chanced to discover it and read it. Similarly, it would be unreal to regard P as acting with the assistance or encouragement of D if the only encouragement took the form of words spoken by D out of P’s earshot. The Law Commission gave the example of words shouted by D, a football spectator, in a large crowd some distance away from an incident on the pitch involving P (paragraph 2.36).

If D provides assistance or encouragement to P, and P does that which he has been encouraged or assisted to do, there is good policy reason for treating D’s conduct as materially contributing to the commission of the offence, and therefore justifying D’s punishment as a person responsible for the commission of the offence, whether or not P would have acted in the same way without such encouragement or assistance.

Whether D’s conduct amounts to assistance or encouragement is a question of fact. Professor Glanville Williams commented in Criminal Law: The General Part (1961) 2^nd ed, at page 356, that it is sometimes difficult to know what degree of assistance is to be regarded as aiding. Several centuries of case law have not produced any definitive legal formula for resolving that question. This is unsurprising because the facts of different cases are infinitely variable. It is for the jury, applying their common sense and sense of fairness, to decide whether the prosecution have proved to their satisfaction on the particular facts that P’s act was done with D’s assistance or encouragement (subject to the qualification that if no fair-minded jury could properly reach that conclusion, the judge should withdraw the case).

There may be cases where any assistance or encouragement provided by D is so distanced in time, place or circumstances from the conduct of P that it would be unjust to regard P’s act as done with D’s encouragement or assistance. Writing in the days of highwaymen, Foster gave the following example in his Crown Law, re-published 3^rd edn (1809), at page 354:

The principle underlying that case must apply with equal if not greater force to a spontaneous joint enterprise. Suppose, for example, that D started to join in chasing V with hostile intent, but quickly thought better of it and stopped. The law would be unjust, Mr Wood submitted, if it held that D would automatically be guilty of whatever violence was inflicted on V by the others who continued to pursue him. We agree. In the present case, according to Chantelle’s evidence, there were a number of people who at an early stage began to chase Bones down the ginnel, but apparently soon thought better of it and returned to their homes before Bones was chased round the circuit, disarmed and attacked by McPhee in the circumstances which have been described. Such limited action on their part would not properly have founded a case that they were guilty of murder. There would have been no adequate basis for concluding that McPhee attacked Bones with their assistance or encouragement.

The appellants’ involvement was far greater. The jury’s verdicts mean that they must have been satisfied that the appellants knew that McPhee was armed with a knife; that they intended that Bones should be caught and made to suffer at least really serious injury; and that they foresaw that McPhee might use the knife to do so. Bones was known to be armed with a baseball bat and well capable of defending himself if the odds were equal. With that knowledge and intent the appellants joined McPhee in a sustained chase. At some point Bones was disarmed. The distance in time and place between the events recorded on the CCTV footage and the infliction of the stab wounds was small. It was a continuing sequence of events.

In those circumstances there was ample evidence on which it was open to the jury to conclude that McPhee was encouraged and assisted in the attack which he carried out on Bones by the conduct of the appellants in joining in the chase. McPhee had the comfort and spur of knowing that he was not on his own, but had the support of the appellants and the reasonable expectation that they would come to his aid if he needed it. We reject the argument that the judge ought to have directed the jury that the appellants’ conduct in chasing Bones (with the requisite mental element) could not be sufficient for them to be convicted of murder.

The other criticism of the judge’s legal directions is that it lacked clarity. This was of some concern to the full court which granted leave to appeal. The judge’s directions were couched in terms of joint enterprise, no doubt because that was the language in which the prosecution had presented the case. That led the judge to have to give directions about what potentially constituted participation in a joint enterprise.

Joint enterprise is not a legal term of art. In Mendez and Thompson the court favoured the view that joint enterprise as a basis of secondary liability involves the application of ordinary principles; it is not an independent source of liability. Participation in a joint criminal adventure involves mutual encouragement and assistance.

It would have been sufficient for the judge to have directed the jury that the prosecution had to prove against each appellant that by words or conduct he assisted or encouraged McPhee to go after Bones and attack him, with the intention which the judge explained and with the knowledge and foresight about McPhee’s possession and use of a knife which the judge also explained.

That is not to imply that the judge was wrong to express his direction about the conduct element in terms of participation in a joint enterprise. His general direction contained the essential components. It may be unfortunate that, after giving the general direction which he did in the early part of his summing-up, he came back to the subject at the beginning of the second day of his summing-up, but we would not criticise the judge on that account because he acted at the request of counsel for the defence. The passage which he read, as drafted by counsel, was not a model of clarity, and it is possible that it led to the jury’s request for a further direction. In response to that request, the judge might have said that by participation in furtherance of the joint enterprise he meant words or conduct by which the appellant whose case they were considering assisted or encouraged McPhee to go after and attack Bones, intending that he should suffer death or really serious injury and with the knowledge that McPhee might use a knife for that purpose. However, the direction which he gave included the words “encouragement by words or actions” and listed the conduct alleged by the prosecution, all of which could have been regarded as assistance or encouragement. In our judgment it focused the minds of the jury appropriately.

Complaint is made that the early part of the direction was too long and that the supplemental direction in answer to the jury’s enquiry was too short. Although the initial directions ran to several pages of the transcript and contained some individual sentences which might be criticised for lack of clarity, overall it made plain the essential ingredients in a form which had been agreed with counsel. We do not think that the jury would have been helped in answer to their enquiry by a lengthy further direction.

Subject to a discrete point about the evidence of Longbottom, Mr Wood made no criticism of the judge’s summary of the facts until he came to deal with the events in Middle Lane. Mr Wood submitted that at that point the summing-up became unbalanced, in that the judge summarised in some detail the evidence of the prosecution witnesses but gave only a brief outline of the appellants’ evidence and omitted altogether to refer to the evidence of Yasmin Bell. There was a good deal of confusion and contradiction in the evidence of the prosecution about what happened at this stage, and in referring to their evidence the judge identified the discrepancies. This was proper, and he would have been criticised if he had not done so. He summarised the appellants’ evidence in this way:

That was a fair and clear summary. The jury can have been in no doubt about what the appellants were saying as to their involvement in the events which took place in Middle Lane.

It is correct that the judge did not remind the jury of the evidence given by Yasmin Bell about what happened in Middle Lane. He began the final part of his summing-up by reminding the jury that they had heard evidence from nine people about what went on in Middle Lane. He listed the witnesses, including Yasmin, and said that he was going to look briefly at those nine pieces of evidence. He then reminded the jury of the evidence of the other eight witnesses, but not that of Yasmin. It would seem that this must have been an oversight, which was not noticed by any counsel at the time. The judge had previously reminded the jury of her evidence about earlier events. Mr Wood acknowledged that Yasmin was not an independent witness, because she was Stringer junior’s partner, but that went to weight and not relevance. As it happened, Yasmin was the final witness and therefore whatever impact she may have made on the jury would have been still relatively fresh.

Overall the summing-up was detailed and fair. The judge set out clearly the nature of the appellants’ case, and we do not consider that the omission to remind the jury that their account of events in Middle Lane was supported by Yasmin affects the safety of the convictions.

The criticism made in relation to the evidence of Longbottom is that the judge went into it in too great detail, whereas he should have played down the significance of Longbottom’s evidence since his statements had been read to the jury. The judge gave the jury full and clear directions about the caution with which they needed to approach his evidence. We do not consider that this complaint has any substance and Mr Wood has realistically accepted that it would not in any case be sufficient on its own to affect the safety of the convictions.

The appeals are dismissed.