Abstract
On the 16 October 2021, Jack Woodley (W), aged 18 at the time, was stabbed during an altercation with a group of youths in Houghton-Le-Spring, County Durham. W had attended a festival with a group of friends. The 10 appellants had also attended. One of the appellants, (CM), had in the waistband of his trousers a large knife. A minor incident arose over a girl. It was the prosecution’s case that the 10 appellants were looking for a fight and used this incident as an excuse [8]. W and his friends left the festival, and the appellants followed. One appellant (S), placed W in a headlock, while other appellants, so said the prosecution, joined in and punched, kicked, and stamped on W [9]. Shouts of ‘get the chopper’ were heard, and the appellant CM stabbed W. The attack was recorded by one of W’s friends and was caught on CCTV, and there were other eyewitnesses. W was attacked a second time, but this attack did not contribute to his death [11]. The whole incident lasted approximately 84 seconds.
W died the next day in hospital. Post-mortem examination of his body showed stab wounds to his back and hip and injuries consistent with repeated kicks and stamps. The medical cause of his death was the stab wound to his back which would have required at least moderate force [12]. The 10 appellants were jointly charged with murder (count 1) and manslaughter in the alternative (count 2). The prosecution case was that CM had inflicted the fatal knife wound and that all the appellants were jointly engaged in attacking W, using violence and/or intentionally encouraging others to use violence, and all sharing a common purpose of causing really serious injury [15]. Each appellant denied any intention that W should be killed or seriously injured [19], but their defences differed slightly [20–9].
BKY denied using any violence in the first part of the fight, but admitted punching W once in the second part. CO admitted presence at the scene (having originally denied it) but denied using or encouraging violence. SS admitted to throwing some punches, but said his use of force was lawful self-defence and in any event was after the fatal stab wound had been inflicted. JL said that he had tried to stop the fight and that the force he used in pulling W away had been lawful. LM said that he had seen S and W fighting and had tried to push S away. He denied using or encouraging violence. BS admitted that he had used unlawful force in attacking W, but said he had only intended to have a one-on-one fight and did not use or encourage any violence after others became involved. AGN denied that he had hit anyone. BGS said he said that others were shouting ‘chop him’, but he had told them ‘no’. He admitted in interview that he had tried to kick W but said he did not succeed. GW admitted ‘throwing a couple of punches to the head’ but denied any involvement in the stabbing. Finally, CM admitted that he had unlawfully inflicted the fatal injury but denied that he intended to kill or to cause really serious bodily harm to W. He said that he had pulled out the knife to scare W but had not intended to stab him. The fatal wound was, he said, an accident. He denied inflicting the stab wound to W’s hip.
The trial began on 14 March 2022 and it was due to end in early May. The trial judge was due to go on holiday for 2 weeks from the 9 May. Unfortunately, progress in the trial was delayed by the Covid-19 pandemic. The judge gave directions on law on 27 and 28 April, closing speeches were completed on 6 May, and the judge completed summing up on the facts after his holiday on the 26 May. On 1 June 2022, the 10 youths were each convicted of murder.
The judge provided the jury with written directions and a route to verdict. Neither the contents of the route to verdict nor the summing up of the law were challenged by the appellants [33–4]. The appellants appealed against conviction on various grounds. First, LM applied to a judge (not the trial judge) for a motion to dismiss the charges under paragraph 2 schedule 3 of the Crime and Disorder Act 1998. The motion was refused and LM appealed. Second, LM submitted to the trial judge at half-time that there was no case to answer. The application was refused and LM appealed. Thirdly, BGS applied to have W’s bad character admitted under section 100 of the Criminal Justice Act 2003. The trial judge refused the application and BS appealed. He also submitted that the judge erred in failing to direct the jury in relation to the principle of overwhelming supervening act considered by the Supreme Court in R v Jogee [2016] UKSC 8 at [96]. Fourthly, all appellants contended (in varying degrees and in specific matters related to each appellant) that the judge’s summing up of the facts delivered over several days beginning on 26 May was neither balanced nor impartial. Five appellants further contended that the break in proceedings had such a prejudicial impact as to render their convictions unsafe. GW and BS alleged that the trial judge intervened inappropriately. BKY submitted that the judge made an unfair comment about the evidence of a particular witness (T). Finally, LM contended that there was a ‘lurking doubt’ about the safety of his conviction [49]. The appellants submitted that it is axiomatic that a summing up should be fair and balanced and should not appear to favour one side; they further submitted that the break in proceedings, coupled with the highly emotive nature of the trial, made it particularly important that the judge should summarise the defence case fully after the break. LM also appealed against the minimum term of 10 years’ detention at His Majesty’s pleasure.
Holroyde LJ gave the judgment of the Court. He confirmed that the primary focus of the appeal was on the fairness, adequacy, and impartiality of the trial judge’s summing up and certain comments he made during the trial. The Court affirmed the overriding principle from R v Hulusi (1974) 58 CAR 378 that the trial judge must not ‘descend into the arena’ when overseeing a trial and summing up the law and evidence [77]. The Court drew attention to paragraph 3(a) of Part 25.14 of the Criminal Procedure Rules which requires a judge to give the jurors directions about the relevant law and to ‘summarise for them, to such extent as is necessary, the evidence relevant to the issues they must decide’ [79]. The summing up should deal with the essentials of the case and must strike a fair balance between the prosecution and defence cases [80]. The Court affirmed comment in R v Haddon [2020] EWCA Crim 887 that there is a ‘the cardinal obligation that the judge should remain impartial, leaving the decisions on the facts to the jury’ [Haddon at [12]], but observed there is not a blanket ban on a judge commenting on the evidence [81].
The Court said that it is important to place the ‘thumbnail sketches’ of the evidence (against which complaint was made) in the context of the summary of the evidence which proceeded the sketches [86]. The two-week break in proceedings meant that the judge needed to, and did, provide a ‘reasonably full’ summary of all the evidence including that adverse to the appellants. In the Court’s view, nothing said in the summing up clearly stated the judge’s view of the evidence [86]. The Court also noted that the trial judge invited counsel for the appellants at trial to intervene if they wished for any amendments or alterations to the summing up to be made: ‘the significance of a failure to mention at the time a point which later forms the basis of a ground of appeal will have to be assessed in that context’ [87]. A failure to mention a point there and then may be a good indicator of whether a particular omission seemed important to counsel at the time. The Court observed that in this appeal ‘it is a striking feature of these appeals that the appellants collectively complain of what are said to be egregious failures to mention important aspects of their cases, and yet at that time very little was done to invite the judge to amplify any of what he had said’ [87].
In relation to the specific complaints raised by individual appellants relating to the summing up see paras 91–111. In summary [88–9]: Viewing the factual summing up as a whole, and not cherry-picking a word here or a phrase there, we are unable to accept that [the summing up] was flawed in the ways which the appellants suggest. On the contrary, it was in our view a thorough and fair rehearsal of the evidence and issues, and was sufficient to overcome any difficulties which may have been caused by the two-week interruption of proceedings. Insofar as there were any imperfections … they were not serious. We accept that in principle a summing up in a multi-defendant case might overall be so unfair to several defendants as to call into doubt the safety of all the convictions; but such a situation is likely to be rare. In the circumstances of this case, we are not persuaded that an appellant who can identify no unfair prejudice to his own case can derive any support from criticisms of the summing up made by others.
Commentary
The law of joint enterprise murder is one of the most contentious doctrines of criminal law. In summary, following Jogee (op cit) the principle holds that if a fatal event involving a group occurs, the deliverer(s) of fatal blows can be convicted of murder as joint or sole principals if it can be shown they each intended to kill or cause really serious harm. The doctrine also holds that other parties to the incident, who did not deliver fatal blows, can likewise be convicted of murder if the prosecution can show that they encouraged or assisted the killing while intending to encourage the primary parties to either kill or commit really serious harm. In Jogee the Supreme Court said: ‘in cases where there is a more or less spontaneous outbreak of multi-handed violence … [liability] depends on proof of intentional assistance or encouragement, conditional or otherwise’ [95]. Previous case law, such as Chan Wing-Siu [1985] AC 168 (PC) and cases based upon it, which suggested over time that mere knowledge of presence of a weapon could form the basis of liability was a ‘wrong turn’ [3].
In the present case, it was conceded by all that that CM was the stabber and there were no other fatal blows, the liability of the rest being based upon their having encouraged or assisted the stabbing while intending to encourage or assist the stabbing in this more or less spontaneous outbreak of violence. The charges against the defendants at trial were vigorously defended (although most did not give evidence) and the trial (and appeal) has generated significant amounts of publicity for the joint enterprise doctrine. As outlined above, the defendants at trial variously denied knowing a knife was present, denied encouraging or assisting in a murder, denied inflicting any unlawful harm, and denied intending that anybody would be killed or seriously injured. After the appeal, the campaign group Joint Enterprise Not Guilty by Association (JENGbA), supporting the appellants’ families, released a statement calling for the abolition of the joint enterprise doctrine.
As is well known, the test operated by the Court of Appeal in an appeal against conviction is whether it is sure the conviction is safe (Criminal Appeal Act 1968, s 2). If it is not sure it must allow the appeal and quash the conviction. Where the primary complaint against the conviction is that an irregularity, such as with the summing up, occurred the onus will be upon the appellants to show first that such an error did occur at trial. If the Court thinks that the error did occur, it will then ask whether the conviction is rendered unsafe. The essential question in a procedural irregularity appeal is whether, assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty? (R v Davis [2001] 1 Cr App R 8, at 132). There are thus two stages to be passed in an appeal like this. In the present appeal the appellants roundly failed to pass even the first test; they could not convince the Court that anything went egregiously wrong with the judge’s summing up.
Since the appellants (for the most part) failed to show anything went wrong at trial, the Court did not need to consider the second test, whether the conviction was rendered unsafe. This is unfortunate, because the unsafety test is much more broadly protective than it may appear from the judgment. The unsafety test does not require that something must have gone wrong at trial. The Court of Appeal has, and always has had, the broadest power to allow an appeal against conviction whether or not anything had gone wrong at trial, or, indeed as in this case, if it found explicitly that nothing had gone wrong. This is because the unsafety test is the overriding test in all appeals against conviction – it does not matter whether an error occurred or not – the Court must be satisfied of safety because that is the question they are being asked. As Mantell LJ said in Davis (op cit), a conviction can never be safe if there is doubt about guilt (p132). Since the Court dismissed the appeal, they must have been satisfied there was no reasonable doubt about guilt; or conversely, they were sure about guilt.
The unsafety test has a close interplay with the ‘lurking doubt’ doctrine. This doctrine, first expressed in R v Cooper (1969) 53 Cr App R 82, asks the Court to consider ‘a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done’. The unsafety test, therefore, as a minimum, means the Court must be satisfied that it has no lurking doubt about guilt. One of the appellants, LM, raised a lurking doubt ground directly. Lurking doubt is not really a ground of appeal itself, but is best seen as a reminder that for a conviction to be safe there must be no lurking doubt. Since the Court must operate the unsafety test anyway, and this requires considering whether there is a lurking doubt, this is why it is so rarely a stand-alone successful ground of appeal. If the Court already thinks the conviction is safe then it cannot have a lurking doubt, by definition. Nevertheless, in response to the lurking doubt ground the Court said [at 99]: ‘there was in this case evidence on which the jury could properly find the appellant guilty, and none of the grounds of appeal casts doubt on the safety of that conviction. In those circumstances, we can see no basis for an appellate court to say that the jury’s verdict is nonetheless unsafe. It is unnecessary in this case to explore the boundaries of ‘lurking doubt’: it suffices to say that, at its highest, case law shows that such a ground of appeal could only succeed in ‘the most exceptional circumstances’. This is not such a case’
The emphasis in this appeal on the summing up – rather than on the overreaching question of whether there was sufficient evidence to be sure that the appellants had the necessary intention – was unfortunate particularly given the nature of the violent incident. It is difficult to know precisely who did what, and so who was thinking what. In a case as serious as this, it was always going to be unlikely that a ‘cherry-picked’ phrase from a summing up lasting several days would have any impact on the safety of the conviction. Nothing short of a serious blunder relating to a key part of the prosecution or defence case would be likely to cause the Court any concern about the safety of the conviction. No appellant came close to showing that. What was really needed in this case, to settle the nerves that this could appear to be an overextension of the joint enterprise doctrine, was a statement in open Court and in the judgment for posterity of what each appellant actually did that evidenced his intention. The absence of that explanation might lead some to think that, perhaps, there was no such evidence. Had the Court done that, it may have been possible to be satisfied that the conviction was justifiable and the appellants got what they deserved. As it stands, we do not know the factual basis of the conviction and that is a worry given the case is unlikely to disappear from the public’s mind for some time. To that extent this feels like a missed opportunity to properly defend the joint enterprise doctrine by showing how these convictions were sustainable on the evidence presented at trial and before the Court of Appeal.
Finally, the case emphasises the importance of counsel raising any problems that emerge during the trial with the judge. The Court, quite fairly it seems to me, placed some considerable emphasis on the fact that the appellants were raising issues at appeal that could easily have been raised at trial. The trial judge made it quite clear that he was aware that the break in proceedings was unfortunate and would welcome any corrections to his summing up. None were offered by counsel. Future appeals based on issues with summing up will need to explain why the error was missed by trial counsel.
Conclusion
In this case, the 10 appellants failed to show that the judge erred in his summing up and failed to show there was sufficient doubt about guilt that the conviction should be unsafe. It is impossible to challenge that conviction based on the judgement presented here. But that is the problem and the missed opportunity – what was needed, to settle some concerns about this case in particular and joint enterprise in general, was a proper statement of what the evidence was which made the Court sure of safety.
