R v Henry Houghton

There are linked proceedings which arise out of the facts which are the subject of this application. Various orders under section 4(2) Contempt of Court Act 1981 have been made.

On 13 March 2024 in the Crown Court at Preston before the Recorder of Preston the applicant was convicted of murder. On 15 March 2024 he was sentenced to custody for life, with a minimum term of 20 years less 224 days on remand. A victim surcharge order was imposed. A co-accused, C, was acquitted by the jury of murder. The application before the court is a renewed application for leave to appeal against conviction and sentence, and for a representation order following refusal by the single judge.

We turn to the facts. On 29 July 2023 CW was assaulted by TD. CW summonsed others to attend to seek revenge. This group included MD who later died as a result of a fatal stab wound. After this incident TD and the applicant went to a bar. Just before midnight they left the bar and met other males in a nearby alleyway. One of those was C. The evidence suggests that this was, at least in part, in relation to the use or supply of drugs. Shortly afterwards they left the alleyway and saw the group which included CW and MD. C walked towards the group, inter-reacted with them but walked on past. TD and the applicant also saw the group. TD walked towards them and fighting broke out. The applicant returned quickly to the alleyway. He remained there for about three seconds before re-emerging. He had in his hand a sock, which bore DNA consistent with him having worn it, which contained a rock. He ran towards the fighting. C also turned around and ran back towards the affray.

CCTV footage depicted TD lunge at MD, who put his hand to his chest. It was accepted that MD died as a result of a stab wound to the chest. Immediately before this attack the applicant arrived on the scene and swung the sock with the rock at MD, striking him to the head. He is then seen to swing the weapon at MD a second time, but upon this occasion he failed to make contact. After the fatal attack TD was seen on CCTV footage walking through a car park, from with a knife was recovered the following day which bore his blood. He later left the vicinity in a taxi. The applicant was seen on CCTV returning to the bar. C also returned to the bar.

The prosecution case was that TD was the principal who inflicted the fatal blow. The applicant assisted or encouraged TD by joining in the attack by striking the deceased with a makeshift weapon immediately before the fatal blow. There was circumstantial evidence suggesting that whilst in the alleyway together, the applicant and TD planned the use of violence and that the applicant had made his weapon (the rock in the sock) before there was any actual disorder involving TD. The prosecution also alleged that the applicant and TD had called C to the alleyway to recruit him to their plan. The prosecution case was that all three were armed when they left the alleyway.

The prosecution case against C was that he encouraged TD by running towards the disorder at a time when TD was attacking the deceased and before he struck the fatal blow. He encouraged TD by letting him know that he was there to provide backup if needed.

The prosecution alleged that C was armed with a knife. Videos and photographs later extracted from C's mobile phone depicted him with knives on previous occasions indicating that he had an interest in and access to knives.

The defence case was that the applicant had swung the weapon only intending to scare away the group whom he said were the aggressors. He had not intended to assist TD in attacking the deceased. He made the weapon but only because he thought C was under attack. He had not intended to cause the deceased any harm.

The applicant gave evidence that he had been out with TD on the relevant night. They had encountered CW and his friend. There had been some trouble but they had departed as friends. He, TD and C had met outside the bar and had smoked a spliff and taken some drugs.

C left the alleyway, followed by the applicant and TD. The applicant saw a large group of males up the road. He was not sure why they were there. He went back into the alleyway followed by TD. They later went back out on to the road and saw C who was surrounded. He thought there was going to be trouble. The applicant turned and ran in the opposite direction. He collected a rock and put it into a sock as he could tell there was going to be trouble because of the way C was surrounded. The applicant had a sock with him which he used to conceal drugs. He had made the weapon by taking the sock from his trousers, putting the drugs in his pocket and then putting the rock in the sock. It had taken only a few seconds to fashion this weapon. The applicant accepted he stuck the deceased, but, he argued, in lawful defence of C and/or TD. He did not intend that TD would intentionally cause the deceased really serious bodily harm. He was unaware that TD was fighting with anyone as opposed to simply being attacked. He had run towards the fight with the intention of scaring people away.

C gave evidence that he had bumped into the applicant and TD in the bar by chance and was on his way to meet a friend when called into the alleyway by the applicant and TD. He had no knowledge of any plan of violence or weapons. He had spoken to the applicant about a girl and they were on good terms. Neither the applicant nor TD expressed concern about being attacked or wishing to attack anyone else. He did not know that TD had a knife and he never saw him use it. He did not see the applicant making any weapon. He did not have a weapon himself. He left the alleyway to continue on his way to another bar. When he encountered the other group, he recognised one of them and greeted him. He did not notice any tension. One of the group said, "Ring your mates". He said he had no problem with anyone in the group and he asked to be left alone so he could leave and get on with his night. Some of the group maintained he was friends with the people they were looking for and others said he had nothing to do with the dispute. He walked away without looking back. He then heard a scuffle and shouting and turned around and saw TD stepping away. He did not appear to be in an altercation with just one person; the scene was chaotic. He thought the group were attacking TD. He could not see the applicant. He returned in order to defuse the situation and prevent anyone from getting hurt. He ran back and he had a physical altercation with a member of the group. It was at this point that the fatal blow had already been stuck by TD.

The issues for the jury in respect of the applicant were as follows:

At the end of the prosecution case there was a submission of no case to answer on behalf of the applicant. It was submitted that the jury could not exclude the possibility that the fatal blow was inflicted during the earlier incident when TD was fighting with the group alone and when he assaulted CW, and unless the jury were sure the fatal blow was inflicted in the later incident it was impossible for them to exclude self-defence. Further, there was no evidence of any plan from which the jury could be sure of a common intention and no evidence that would permit the jury to draw the necessary inferences.

The judge ruled that there was a case for the applicant to answer. He held that there was sufficient evidence that TD stuck the fatal blow during the second incident. His lunge was the only interaction captured on CCTV consistent with the fatal injury being caused. The nature and direction of TD's movements when he lunged at MD, including MD placing his hand to his chest immediately afterwards, the location and type of wound he sustained, and the evidence that TD had a knife all led to the conclusion that a properly directed jury could be sure TD inflicted the fatal blow during this later second incident.

There was also evidence that TD was not acting in self-defence when he stuck the fatal blow. He walked towards the group in an unconcerned manner. There was evidence he had a knife and may have been handling or opening the knife as he approached the group. He could have walked away from the scene, but he did not. The interpretation of the scene was ultimately a matter for the jury. There was evidence upon which a jury could conclude that TD's intention was to kill or cause grievous bodily harm. The fatal blow was stuck with considerable force such that it penetrated the deceased by 6 cms.

As for the applicant, the striking of the deceased with a makeshift weapon more or less simultaneous with the moment TD fatally stabbed the deceased was evidence the applicant intentionally assisted or encouraged TD in his unlawful attack upon the deceased. There was also evidence that the applicant was not acting in lawful defence of TD and/or C. This included that the weapon had been constructed at an earlier point than the second incident and the evidence that he ran to the scene with it. The jury would be entitled to conclude, upon the basis of the evidence tendered by the prosecution, that he had been acting offensively and that it had taken him more than just a very few seconds to make the weapon and therefore the applicant must have prepared the weapon earlier than when the trouble started. It was open to the jury to conclude that the only reason he made the weapon was to support TD during the violence which their conduct triggered.

The applicant's weapon caused damage to the deceased's brain. He swung it with full force. He then swung the weapon a second time, but upon this occasion it missed. The jury would be entitled to conclude that the applicant must have known that TD had a weapon. There was evidence upon which the jury could conclude that the applicant and TD had both determined to go into a fight armed, and it was open also to the jury to conclude that the applicant attacked the deceased knowing that TD was at the same time attacking him with a knife, thereby intending to assist TD in causing grievous bodily harm or death.

The judge ruled further that there was a case for C to answer on the murder charge. He was depicted as running back towards the fighting between the deceased and TD whilst he was in possession of a weapon. The jury could decide that the plan of attack had been mentioned to C in the alleyway.

In sentencing the applicant, the judge held that he had chosen to assist in a senseless and avoidable knife attack. The applicant accepted fashioning a weapon prior to any physical altercation. He brought his weapon down upon the deceased's head just before TD inflicted the fatal stab wound. The injury caused by the applicant was delivered with significant force. It did not cause death but was a significant and disorientating injury. The judge was sure the applicant was not acting in defence of C or TD. There was no proper basis upon which the applicant could have concluded C was in danger. The applicant had made the weapon before TD was involved in any violence. The judge was sure the applicant and TD planned the attack. They had no reason to approach the group. They could have walked away in the opposite direction. The applicant knew TD was at all times armed with a knife. The attack was planned and it was intended that really serious harm would be caused. The judge was not sure the applicant intended that TD would intentionally cause death. The applicant was sentenced on the basis that MD intentionally caused really serious bodily harm.

The sentence for murder was fixed by law as Custody for Life under section 275 Sentencing Act 2020. The applicant was not a party who took the knife to the alleyway, but he was a party to it having been taken down the road from the alleyway by TD in order to attack the group, and as such he was a party to the taking of a knife to the scene of a murder. The starting point was therefore 25 years under Sentencing Act 2020, Schedule 21 paragraph 4. That the applicant was intoxicated and the violence was on a public street were aggravating features. The applicant's lack of intention to kill was a mitigating feature. The judge took into account that there would not have been a killing had the group not chosen to seek revenge for the first incident, but that did not justify the applicant's actions. It was TD who assaulted CW at the earlier incident and the applicant had no convictions for violence. The applicant was convicted as a secondary party. Culpabilities for secondary parties could be less than for principals, but in this case the applicant was involved in the planning and execution of the assault. He knew TD was armed with a knife and used a "ferocious" (to use the judge's words) weapon of his own. Limited deduction was made to reflect his role as a secondary party.

The applicant was aged 18 at the time of the offending. The judge considered the chronological and developmental age of the applicant and his level of maturity. He referred to the Sentencing Council guideline on sentencing children and young people. He recognised that a young person may not bear the same level of culpability as an adult and the applicant had only recently turned 18 at the time of the offence. However, there was nothing especially immature about the applicant. There was no evidence of development delay. He was employed and had an active social life. The judge did see the offending as immature bravado and it was clear age had an impact.

We start by dealing with the grounds of appeal in relation to conviction. The arguments developed today before us by Mr Myerson KC and those set out in writing cover very much the same ground. Before the single judge and in written submissions, three grounds of appeal were advanced in relation to conviction.

Before dealing with those, I will summarise the submissions made before us today by Mr Myerson. In argument Mr Myerson very fully and clearly set out the ways in which he said that the judge erred. He said that these errors permeated both the ruling on no case to answer and the summing-up. Without doing a disservice to Mr Myerson's submissions, we would summarise the central criticisms as follows:

Before the single judge three particular grounds of appeal were advanced in relation to conviction. We will take each in turn, bearing in mind the submissions made to us today.

First, the judge erred in refusing the submission of no case to answer. The conclusions reached by the judge were internally consistent; they depended upon timings that were measured in fractions of a second and the CCTV was not clear enough to permit measurement. Finally, the judge did not examine whether a properly directed jury could draw the inferences he specified.

In relation to this, the summary of the facts that we have recited largely speaks for itself. This was a classic case of the judge having heard the prosecution evidence and, having considered it carefully, concluding that the case had to be placed before the jury. It is evident from the transcript of the argument on no case to answer that the facts were closely debated and canvassed. The judge addressed in his ruling all the issues which were centrally relevant, including:

In his ruling the judge summarised the evidence adduced by the prosecution which was relevant to all of these matters. We agree with the Single Judge that this proposed ground is not arguable. This was, in our judgment, a matter which had to go to the jury.

Secondly, it is said that the judge's directions to the jury in respect of circumstantial evidence and inferences were flawed - a point that Mr Myerson has carefully elaborated before us today. The jury were directed at length about the conclusions the prosecution wished them to draw but not, it is contended, directed to consider the strength of the evidence upon which the prosecution relied to prove each primary fact. The Crown say that the jury were directed to draw inferences based upon the evidence of which they were sure and were entitled to reach various conclusions from the facts. At the end of the summing-up and following an invitation on the part of the judge to address any perceived shortcomings, no submissions were made by the applicant in respect of the complaint that is now made. Importantly, the prosecution say the judge's directions on intention were entirely in accordance with the standard direction. The single judge rejected the criticisms put forward. He concluded that the judge summarised the evidence in a manner which properly referred to the necessary approach to the drawing of inferences. In relation to intention, the single judge observed that the direction was "unexceptional and right". For our part we have read the directions given to the jury with real care. We agree that they were unexceptional. In our judgment the judge summarised the various factual issues in dispute in a fair and proportionate manner and he covered all the matters relevant to the applicant's defence and he did so in an appropriate level of detail about the facts, a good portion of which are incontrovertible. We do not consider that the jury could in any way have been confused or led astray. We can detect no error in the approach of the judge. We consider that the judge was properly and fairly instructed in how to assess the evidence.

Thirdly, an issue has arisen which was dealt with in writing which we should address. It is said that the jury were not told that they had to be unanimous in relation to each question in the route to verdict and therefore the verdict was not necessarily one upon which they all had agreed. The prosecution say that all counsel were provided with the draft route to verdict, which was subsequently amended following submissions. The single judge analysed the situation in the following way:

We turn to the renewed application in relation to sentence. The applicant argues that it was not open to the judge to conclude that the applicant had not acted in self-defence as it lacked a proper evidential basis and was incompatible with the acquittal of the co-accused

As to this, we agree with the reasoning of the Single Judge. The judge was entitled, having listened to the evidence during the trial, to proceed upon the basis that he did and to reject the suggestion that the applicant was acting in self-defence. The ruling on no case to answer makes the position of the judge clear as to the basis for his conclusion, as did his sentencing remarks. The judge was also entitled to conclude that TD was armed with a knife and he was entitled to approach the case upon the basis that the applicant was party to taking the knife to the alleyway and then to the later incident. A 25-year starting point was appropriate. The judge considered aggravating features and mitigation before arriving at the 20-year minimum term. This was an exercise in sentencing judgment that was squarely within the legitimate discretion of the judge. For these reasons, we refuse the renewed application for permission to appeal against sentence and convictions.

Mr Myerson, you have said on your client's behalf everything that could properly and fairly be said, and we know that he will be disappointed, but I am afraid that is the result. Thank you very much for your assistance today.