Saunders, R v

On 16 June 2011 we heard the appeal of Claire Louise Saunders against her conviction on 26 October 2010, after a trial before HHJ Ball QC and a jury at the Crown Court at Chelmsford, of assisting an offender contrary to section 4(1) of the Criminal Law Act 1967. Following her conviction, Judge Ball had sentenced the appellant to nine months imprisonment suspended for 2 years with an unpaid work requirement. At the conclusion of the hearing before us we announced that we would allow the appeal and quash the conviction. We said that we would give our reasons in writing. These are they.

At about 6pm on 11 July 2009 there was a fight in the street in Jaywick, Essex. It involved Laurence Wheatley (“LW”), his brother, Graham Wheatley (“GW”), Jason Bethell (“JB”) and John Smith. The fight arose following the acrimonious termination of a relationship between John Smith and his girlfriend Deanna McKee (“DM”) on 8 July 2009. DM ended the relationship because she found John Smith too possessive and controlling. John Smith took the termination badly. DM was concerned about what John Smith might do and so she asked LW to train his CCTV cameras on her house as a protective measure. John Smith found out about this and began to think that DM and LW were having an affair. He threatened violence against them both. On the evening of 10 July LW visited John Smith and tried to talk to him but John Smith immediately assaulted LW and so he fled.

In the fight on 11 July, John Smith was set upon by some or all of LW, GW and JB. He was repeatedly stabbed, punched and kicked. He was also hit by a car driven by GW. John Smith sustained injuries to his pancreas and he died two months later. At some stage in the fight, LW was stabbed in the stomach.

The appellant had been the driver of a car that contained LW and others on the evening of the fight. The car had arrived at the scene where the fight subsequently occurred. LW, GW, JB and the appellant were all charged with the murder of John Smith (count 1). At the trial the prosecution case was that all were guilty of murder on the basis of a joint enterprise. It was said that the appellant’s role was to drive LW and others to the scene in the knowledge that they intended to cause John Smith really serious harm. GW arrived at the scene in his car and the prosecution alleged that he joined in the joint enterprise by driving at John Smith and knocking him to the ground. As an alternative to count 1, GW was accused of attempting to cause John Smith grievous bodily harm with intent (count 3).

The prosecution case was that the appellant watched the attack from her car then acted as the getaway driver, taking the men involved from the scene. This activity gave rise to count 2 on the Indictment, although it was alleged that the appellant assisted only one of the men involved, namely LW.

The terms of count 2 are as follows:

The appellant’s case at the trial was that she was not a party to a joint enterprise to murder John Smith. She said that she was driving LW and others to the shops when they happened to see John Smith and she stopped her car believing that they wished only to talk to him. In relation to count 2 her case was that once she had seen that LW had been stabbed she drove him away, intending to take him to hospital. However, LW insisted that the appellant take him home.

The appellant gave a mainly “no comment” interview upon arrest but she handed to the police a prepared statement. That set out her case as summarised above.

The prosecution called evidence from eye witnesses to the fight and from DM. It also called evidence from Dr Shorrock, the Home Office pathologist who, on 24 September 2009, had conducted the post-mortem of John Smith. Dr Shorrock’s evidence was that the deceased had been punched, stabbed and kicked repeatedly and also struck by a car. Damage had been caused to the deceased’s pancreas which had required many operations. Dr Shorrock could not say definitively whether the damage to Mr Smith’s pancreas had been caused by the stabbing, the kicking or by being hit by the car, but in his view it was likely the pancreatic injury was caused by the stabbing.

LW gave evidence in his defence. It was his evidence that the appellant was driving him to a shop to buy alcohol when they saw John Smith and LW asked her to stop the car so LW could talk to him. LW said that he approached John Smith who immediately stabbed him in the stomach. LW said that he did not see anything further of the incident, although he recalled getting back into the appellant’s car and being driven back to his house where he attended to his wound. The appellant, GW and JB did not give evidence.

The jury acquitted LW, GW, JB and the appellant of murder. GW was convicted of attempting to cause John Smith grievous bodily harm with intent. He was sentenced to 42 months imprisonment less 249 remand days. He has not appealed his conviction.

When the jury had acquitted both LW and the appellant of murder they asked the judge whether they had to go on to consider the alternative charge against the appellant of assisting an offender, viz. count 2. The judge said they did and he gave some further directions. The jury found the appellant guilty on count 2 by a majority of 10 to 2.

There are two grounds of appeal. First, it is argued that the judge wrongly left count 2 to the jury once LW, who is identified in count 2 as the principal offender, had been acquitted of murder by the jury. Secondly, it is argued that the judge failed properly to direct the jury in relation to what the prosecution had to prove concerning the offence that LW had committed before the jury could properly convict the appellant on count 2.

The single judge gave leave to appeal on both grounds. He refused leave on a third ground and there has been no attempt to renew the application for leave on that ground. We decided we would first of all hear argument on the second ground. Having decided we would allow the appeal on that ground we did not hear any argument on the first ground.

The second ground is concerned exclusively with the judge’s summing up. Before the judge started his summing up there was much discussion with counsel about the written directions of law that the judge indicated that he would give the jury. There were discussions of draft written directions at various intervals during the judge’s summing up which started on Tuesday 12 October 2010 and finished on Friday 15 October 2010.

We understand that the written directions only concerned count 1: viz. the murder charge. The written directions were to comprise directions on the ingredients of the offence of murder and “Routes to Verdict” in the case of each of the defendants. We were told by Mr Michael Levy, who had appeared for the appellant at the trial and who appeared on the appeal, that because there was continued discussion on the content of the written directions during the judge’s summing up he only gave the jury the directions towards the end. Mr Levy told us that there were no written directions to the jury on the ingredients of the offence in count 2; nor was there any written “Route to Verdict” in respect of that charge.

When the judge began his summing up on 12 October he gave directions on the ingredients of murder for the purposes of count 1: pages 10 – 18 of the summing up. In the course of those directions he dealt with “joint enterprise” and causation, both of which were major issues at the trial with each defendant saying that he (or she) was not part of a joint enterprise and that John Smith’s death was not caused, in law, by the attack. The judge dealt with the prosecution case against the appellant regarding count 1 at pages 18 – 19. At that stage he did not deal with the ingredients of the offence of assisting an offender, the subject of count 2 against the appellant. Nor, at that stage, did the judge give any directions on a possible defence of “self-defence” to the murder charge as far as LW was concerned.

The judge then began a summary of the evidence. He continued with this summary on 13 October before considering the issue of causation, which he dealt with at pages 83 and following of the transcript. The judge started to deal with the defence evidence that day: see page 98. After the jury had been sent home that afternoon and then before the jury were called in again on 14 October, counsel made many submissions to the judge on the form of his proposed written “Route to Verdict” documents concerning count 1. In the course of those discussions on the morning of 14 October, Mr Caudle, counsel for LW, asked the judge when he would be dealing with the issue of “self – defence”. The judge indicated that he would give directions on it when explaining to the jury his “Route to Verdict” document: page 147.

During this same session in the absence of the jury on 14 October, Mr Hodivala, junior counsel for the appellant, posed two questions to the judge: see page 157 of the transcript of the summing up. The first was whether “the Crown would suggest that it would be right and proper for Claire Saunders to nevertheless be convicted of Count 2” if the other three defendants were acquitted on count 1. (Although Mr Hodivala’s question did not specifically mention also the acquittal of the appellant on count 1, he must have been making that assumption at the same time). The second question was put upon the premise that the answer to the first question was “yes”. In those circumstances, Mr Hodivala asked whether the judge “would be inclined to direct the jury with regard to those directions that are relevant to [LW’s] guilt on the murder as relevant to Count 2 as well”: page 157C. Mr Hodivala continued, at page 157C:

There was then further discussion on what directions the judge might give to the jury on count 2 with regard to the possible offences that the prosecution had to prove had been “committed” by LW as the premise upon which the appellant “knew or believed” that LW had committed that offence yet, without lawful excuse, assisted LW to leave the scene with intent to impede his apprehension or prosecution. It is apparent from the discussion at pages 157 – 158 of the transcript that the judge was contemplating a direction to the jury that, even if they acquitted LW of count 1, yet for the purposes of count 2, the jury could consider whether they were sure LW had committed the offence of either the attempted murder of John Smith or the offence of committing grievous bodily harm with intent against him, contrary to section 18 of the Offences Against the Person Act 1861.

Mr Hodivala ended his submissions on these points as follows (page 158):

This whole discussion took the morning and some of the afternoon session on Thursday 14 October. When the jury were called in the judge started to give them directions on a document which was handed to the jury headed “Murder”. As the judge explained, that 5 page document set out the fundamental propositions of law that would govern the jury’s deliberations on count 1. It did not deal with the issue of self-defence.

The judge then directed the jury on the law relating to count 1 by reference to each of the defendants. He started with the appellant’s case. He gave the jury a single sheet document headed “Route to Verdict – Claire Saunders”. The judge concluded his discussion of this document by reminding the jury that it was only if they concluded that the appellant was not guilty of murder that they would need to go on to consider count 2 against her.

The judge then gave his directions on count 2:

The judge next considered the case of LW. In the course of his directions concerning LW and count 1, the judge gave directions on the issue of self-defence: see page 170E to 172D. The directions are tailored to deal with the question of whether LW did or might have a defence of self-defence to the charge of murder in count 1. There is no reference to count 2 in the course of those directions. There is no suggestion that the jury might have to consider the issue of self-defence in relation to whether LW had committed the offence of attempted murder or grievous bodily harm with intent for the purposes of deciding whether the appellant was guilty of the count 2 offence of assisting an offender.

The judge continued his summing up to the jury on Friday 15 October 2009 by giving the jury his “Route to Verdict” with regard to LW. Question 3 of that document poses the question: “Are we sure that the violence used was unlawful violence, not in reasonable self-defence?”. The judge explained that orally: see page 178 of the transcript. The judge then went through the same exercise with a document entitled “Route to Verdict: Jason Bethell” and then, lastly, a document headed “Route to Verdict: Graham Wheatley”. That dealt only with questions relating to count 1 against GW, not count 3.

When the judge had finished giving those directions, in the absence of the jury Mr Hodivala raised a further issue in relation to count 2. He asked:

Following final directions the jury retired to consider their verdicts that Friday afternoon. The jury deliberated all the following week. We have no transcripts for those days but at some stage the judge must have given a “majority verdict” direction. The jury continued its deliberations again on Monday 25 October.

At 3.15pm on Monday 25 October the jury returned not guilty verdicts on count 1 in relation to LW and the appellant. The foreman of the jury indicated that they had not then reached a verdict on which at least ten of them were agreed either as regards GW on count 1 or as regards the appellant on count 2. It appears that no question was at that stage put to the jury concerning GW and count 3.

The jury had sent a note to the judge regarding count 2 at the time when they indicated they had reached some verdicts. The note stated:

The judge told the jury he would deal with their question the following morning. In the absence of the jury, the judge said that counsel would need to discuss the issue but his recollection was that (page 203B-C):

On 26 October Mr Harvey QC, leading for the prosecution, submitted to the judge that the answer to the jury’s question was that they could still convict the appellant of count 2 if the ingredients of the offence of assisting an offender were proved. Mr Levy, counsel for the appellant, submitted that the judge should direct the jury to acquit the appellant because “the offender” identified in count 2 had been acquitted so that “there is not an offender now left”: page 205D of the transcript. Mr Levy referred the judge to remarks of Watkins LJ in the decision of R v Donald and Donald (1986) 83 Cr App R 49at page 51 where he posed the question:

Judge Ball gave a ruling on that submission and said that the remarks in Donald were distinguishable. He said that he would remind the jury of the directions that he had given them on count 2. He continued:

The jury were then recalled and the judge both answered their question and gave them further directions. He said (page 208) they could still convict the appellant on count 2 but there was a “very narrow and limited route by which she could be found guilty and I am just going to remind you of that”. The judge read out section 4(1) of the Criminal Law Act 1967 (albeit in the form before the 2005 amendments) and then continued (page 209B):

The judge then directed the jury that if they were so satisfied they then had to consider whether the appellant was aware that LW “had acted in a way that amounted to that offence and had then conducted herself in a way which prevented his apprehension or detection”. The judge then summarised his direction to the jury on count 2 as follows (page 210B):

Later that day the jury returned further verdicts. They found GW not guilty on count 1 but guilty on count 3, by a majority of 10 to 2. At the same time, they returned a guilty verdict against the appellant on count 2 by the same majority.

Section 4(1) and (1A) of the 1967 Act (as amended) provide:

An offence for which the sentence is fixed by law,

An offence for which a person of 18 years or over (not previously convicted) may be sentenced to imprisonment for a term of five years…. “

Section 4(4) stipulates that no proceedings shall be instituted for an offence under section 4(1) except by or with the consent of the DPP. The phrase “relevant offence” in sub-section (1) and its definition in sub-section (1A) replaced the previous wording of “arrestable offence”. The amendment was introduced by Schedule 7(3) paragraph 40(2) of the Serious Organised Crime and Police Act 2005.

It is clear from the decisions of this court in R v Donald and Donald (1986) Cr App R 49 and R v Zaman [2010] 1 Cr.App.R. 29that the commission of the “relevant offence” by the principal offender, A, may be established in a case where B is charged with assisting A under the terms of section 4(1), notwithstanding that A himself has not been found guilty of the “relevant offence”. As Maurice Kay LJ pointed out in Zaman at paragraph 18, there could be many reasons for the failure to establish the commission of the “relevant offence” as against the principal offender, A.

Where B is being tried for an offence of assisting A under section 4(1), the prosecution has to prove four things to obtain a conviction of B. First, it must prove that the principal offender, A, committed a “relevant offence” as defined by subsection (1A). Secondly, it must establish that B, who is alleged to have assisted A, knew or believed at the time he assisted A, that A was guilty of that “relevant offence or some other relevant offence”. Thirdly, the prosecution must show that B did an act (or acts) and did it with the intent to impede the apprehension or prosecution of A. Lastly, the prosecution must prove that the act done by B was done without lawful authority or reasonable excuse.

In count 2 of the Indictment in this case, LW was identified as the principal offender whom the appellant was accused of assisting. In the Particulars of Offence LW is stated as having committed the “arrestable offence” of the attempted murder of John Smith. (The draftsman of the Indictment appears to have used the old form of wording of the statute before its amendment in 2005. The old wording is still used in the current edition of Archbold at 18-35). However, in the second paragraph of the Particulars of Offence of count 2 it is said that the appellant, “knowing or believing that the said LW had committed the said offence or some other arrestable offence”, without lawful authority or reasonable excuse assisted LW to leave the scene of the “said offence” with the intent to impede the apprehension or prosecution of LW.

Therefore, as count 2 of the Indictment was drawn, for the purposes of establishing that the appellant was guilty of assisting LW in relation to “a relevant offence”, the prosecution was not confined to a case of proving that LW had committed the offence of the attempted murder of John Smith. It was open to the prosecution to prove that LW had committed any other “relevant offence” as defined in section 4(1A) of the 1967 Act. Moreover, as the judge correctly recognised, the fact that LW was acquitted by the jury of the murder of John Smith did not, as a matter of law, prevent the prosecution from pursuing its case against the appellant on count 2 in the same trial. Theoretically the prosecution could even have continued to attempt to prove that LW had, in fact, committed the offence of the murder of John Smith for the purposes of trying to obtain a conviction of the appellant on count 2. That would doubtless have been well nigh impossible when the jury had just acquitted him. However, as a matter of law, the prosecution was free to attempt to prove, for the purposes of count 2, that LW had committed any other “relevant offence”.

In fact, when the judge initially gave the jury directions on count 2 (at page 167-8 of the transcript) he directed the jury that it should consider whether or not it was satisfied that LW had committed one or other of just two possible “relevant offences”. They were the attempted murder of John Smith (as particularised in the Particulars of Offence) and the offence of inflicting grievous bodily harm on him with intent, contrary to section 18 of the Offences Against the Person Act 1861. Directing the jury that there were only two possible “relevant offences” that LW might have committed for the purposes of count 2 was a legitimate and sensible thing to do so. It meant the jury would know the possible “relevant offences” they had to concentrate on for the purposes of count 2. Unsurprisingly, there was no objection that that direction from either the prosecution or the defence.

In his written submissions, Mr Levy on behalf of the appellant submitted that the judge failed properly to direct the jury on what the prosecution had to prove concerning the offence LW had committed in relation to count 2. Mr Levy submitted that when the judge directed the jury on count 2 (at pages 167-8 of the transcript) he was obliged first of all to direct that they had to be sure that LW had committed one or other of the “relevant offences” of attempted murder or grievous bodily harm with intent. Therefore, Mr Levy submitted, the judge had to direct the jury fully on the ingredients of those offences. LW had raised the defence of “self-defence” in relation to the murder charge against him in count 1. Accordingly, Mr Levy submitted, the judge was obliged to direct the jury that they had to be sure that LW had not acted in self-defence before they could be sure, for the purposes of count 2, that LW had committed the “relevant offence” of either the attempted murder of John Smith or of inflicting grievous bodily harm on John Smith with intent. Mr Levy also submitted that the judge was wrong to decline to give further directions on the ingredients of the “relevant offences” for the purposes of count 2 when he was asked specifically whether he would: see page 192 of the transcript.

Mr Levy further submitted that once the jury had found LW and the appellant not guilty of the murder of John Smith and the jury had asked for further “legal directions” on count 2, the judge should have given a more detailed direction than he did. In particular, Mr Levy argued that the judge should have directed the jury that they had to be sure that LW had not acted in self-defence before they could be sure that, for the purposes of count 2, LW had committed the “relevant offence” of grievious bodily harm with intent. But the judge did not mention self-defence in his further direction at pages 208- 210 of the transcript.

Mr Simon Denison QC, for the Crown, in his characteristically concise and realistic submissions, accepted that the judge was obliged to direct the jury on the ingredients of the “relevant offences” it was alleged that LW had committed, in order to establish count 2 against the appellant. He accepted that when the judge gave his original directions on count 2, he did not specifically direct the jury fully on the ingredients of the offence of inflicting grievous bodily harm with intent for the purposes of count 2. In particular, Mr Denison properly conceded that the judge did not specifically direct the jury on the issue of self-defence in that context. However, he submitted that, in the context of count 1 against LW, the judge had given the jury a full direction on the need to be sure that LW inflicted unlawful violence on John Smith. Furthermore, the judge had dealt fully with the self-defence issue in that context. Mr Denison argued that, given the directions that the judge had given the jury, the jury could have been in no doubt that they had to be satisfied that LW had committed unlawful violence with intent against John Smith before they could be satisfied that LW had committed either attempted murder or the section 18 offence for the purposes of count 2.

Mr Denison submitted that the further directions the judge gave to the jury after they had acquitted LW and the appellant of murder on count 1 and they had asked for further “legal directions” on count 2 were sufficient. He accepted that there was no specific direction on the issue of self-defence in relation to a section 18 offence by LW. But Mr Denison argued that the previous directions given in relation to count 1 would have been sufficiently in the jury’s mind and they would have appreciated they must apply the directions given in relation to count 1 concerning unlawful violence to their consideration of count 2. Accordingly the conviction of the appellant on count 2 was safe.

Before the appellant could be convicted on count 2 the jury had to be sure that LW had committed a “relevant offence”. When the judge first directed the jury on count 2 he had, quite properly, directed the jury that the only offences they need consider in this context were that LW had committed the attempted murder of John Smith or, alternatively, that LW had inflicted grievous bodily harm on John Smith with intent. In our view the judge had to direct the jury on the ingredients of those two offences to ensure that they had the right legal basis on which to reach a conclusion that they were sure that LW had committed one or the other of them. Only if they were so satisfied could the jury then go on to consider whether the prosecution had proved the remaining ingredients of the offence under section 4(1) of which the appellant was charged.

Unfortunately, doubtless because the whole weight of the long and complex trial had focused principally on count 1, the judge did not give full directions to the jury on the ingredients of attempted murder and grievous bodily harm with intent when he gave directions on count 2 at pages 167-8 of the transcript. He did not give any direction at that stage on the need to be sure, for the purposes of either of the two “relevant offences” concerned with count 2, that LW had not acted in self-defence. In our view the judge should have done so. The jury had a lot to consider in relation to the cases of the four defendants on count 1. In the absence of a written “Route to Verdict” for count 2, it would be expecting too much of a jury to appreciate that the directions that the judge had given on “unlawful violence” and “self-defence” in connection with the case against LW under count 1 applied equally to the two “relevant offences” said to have been committed by LW that the jury had to consider in relation to count 2.

Once the jury had acquitted LW and the appellant on count 1 and had asked for further “legal directions” on count 2, the judge very properly told the jury to concentrate on whether LW had committed only one offence, namely the section 18 offence. But the jury still needed to be directed on the ingredients of that offence before it had a proper legal basis for reaching the conclusion that LW had committed it.

The judge did not and could not know the basis on which the jury had reached their verdict that LW was not guilty of the murder of John Smith. It could have been on any one of a number of issues that had arisen on count 1. Therefore, it seems to us, the judge had to ensure the jury was properly directed on what the prosecution had to prove so that they could be sure that, for the purposes of count 2, LW had committed the offence of inflicting grievous bodily harm with intent on John Smith. When the judge gave his further directions at pages 208-210 of the transcript he correctly stated that the jury had to be sure that LW was responsible for causing grievous bodily harm on John Smith. The judge did not specifically deal with the mental element of that offence in that context. More importantly, he did not tell the jury that it had to be satisfied that the violence was unlawful and that they had to be sure that LW had not acted in self-defence.

Accordingly, we are driven to the conclusion that the jury were not sufficiently directed on the ingredients of the offence which it was alleged that LW had committed, for the purposes of count 2 against the appellant. Her conviction on count 2 must therefore be unsafe.

As we announced at the end of the hearing on 16 June, the appeal is allowed and the conviction of the appellant on count 2 is quashed. There was no application for a retrial.

In the light of our conclusion on Ground 2, we need say nothing further about Ground 1.