There is a public perception that disadvantaged young men have been over-criminalised, especially when they have involved themselves in fatal group violence. This has led to increased scrutiny of the principles of joint enterprise, especially where some of the participants did not physically engage.
Such concern or criticism is less likely to be expressed where a conspiracy to murder is alleged. Participation in an agreement to kill does not require the Defendant, in fact, to raise a hand in anger or even to be present when the fatal blow is struck. Moral concerns about returning a verdict that will result in the imposition of a life term on a young man (as they often are) frequently fade in the face of evidence that that person has leant themselves to an agreement to kill. These worries arise more starkly when juries need to consider the fate of the young accused who was, seemingly, ‘merely present’.
The law in this area was recently re-examined in R v Hussain, Fiaz & Carpenter [2023] EWCA Crim 697. The three Applicants had been convicted (as secondary parties) of Murder and Conspiracy to Rob. A local drug dealer had been stabbed to death in his own home – the offenders had sought to steal his drugs and his cash and/or to put him out of business. A large knife, taken for the purpose, was used by the principal Hammad. Hammad left the country and had not not tried. It was the Crown’s case that the Applicants had assisted and/or encouraged Hammad; they were all parties to a joint plan and had intended that, if necessary, the victim would be caused really serious injury. The common and central ground of appeal was that the Trial Judge had been wrong to reject their submissions of no case to answer. Each Applicant contended that they had not intended to assist or encourage the robbery; they had not intended any harm to the victim; and that they were not responsible in any way for the actions of Hammad.
The actual stabbing was witnessed by the Deceased’s girlfriend, a prosecution witness. The remainder of the case was circumstantial and included evidence of contact, communications and co-location. On the day, Carpenter drove to the area of the Deceased’s flat with Fiaz and Hammad (the stabber) as passengers. Fiaz remained in the car initially with the stabber. Carpenter went to the flat, propping open the outer door on entry). Another male – Allcott – was also there. Fiaz messaged Carpenter, who was now in the flat, ‘shall I send him or what’. Shortly thereafter the stabber entered the flat; he had a large hunting knife at his side. Allcott said that, in his view, the knife was there only to threaten. The Deceased grabbed a baseball bat and scuffled with Hammad. Despite the pleas of the Deceased’s girlfriend that they stay, Allcott and Carpenter left the flat. Carpenter returned to the car where he re-joined Fiaz. Back in the flat, Hammad stabbed the Deceased five times with the knife. The Deceased’s girlfriend struck the stabber with a frying pan causing him to drop the knife. He then left the flat, got into the car and all three drove away. They called Saddam who booked flights for his brother, the stabber, to leave the country. Efforts were made to change cars and clothing and there were further communications.
At trial, Saddam claimed to know nothing about the planned robbery and gave an innocent explanation for his phone calls. He accepted assisting his brother to leave the country. Fiaz and Carpenter said they knew nothing about the knife; they gave innocent explanations for the evidence including Carpenter’s DNA on the knife. Typical in such cases, issues included withdrawal from the criminal enterprise and whether the presence of a knife – if it was not known of by the Applicants – would amount to an overwhelming supervening event.
The Jury were given two possible routes to convict of Murder. First: If the Defendants were involved in a conspiracy to rob, then they must have anticipated that the Deceased would not necessarily allow his property to be taken by the mere threat of force, rather that the person carrying out the robbery would need to use some actual physical violence. If it was intended that the person carrying out the robbery would, if necessary, use physical violence with intent to cause serious bodily injury, that would be Murder by the person who carried out the physical violence with that intent and any person who encouraged or assisted him to so with that shared intent. Secondly, whether or not this was a conspiracy to rob the victim of his drugs and money, there was a ‘turf war’ here between rival suppliers. In a more typical joint enterprise scenario, if the stabber had a murderous intent and anybody knew of his intention, shared it and encouraged him or assisted him in carrying out that attack with that intention, they too would be guilty of Murder.
The Trial Judge further directed the Jury as to what an overwhelming supervening act would be, stating that the stabber’s conduct would only be an overwhelming supervening act if it was an act which no one in the Defendant’s shoes could have contemplated might happen. The Judge went on to say that the lack of knowledge of a knife did not necessarily mean that the use of it by the stabber would be an overwhelming supervening event.
Counsel for Fiaz argued that proof of a shared intention required proof of knowledge of the essential facts of the crime as well as actual and intentional assistance or encouragement. It was also argued that an accessory should have made at least a ‘measurable contribution’ to the commission of the crime by the principal.
Counsel for Carpenter argued that the stabbing of the Deceased must necessarily be an overwhelming supervening event as the stabbing occurred after Carpenter had fled the scene, having apparently withdrawn from any agreement when the stabber entered with the knife. It was further argued that the Jury could not rule out that the conspiracy to rob anticipated violence falling short of death or really serious harm.
The Court of Appeal upheld the convictions, rejecting the defence arguments. They rejected the submission that a Defendant must make a ‘measurable contribution’ to the commission of the crime – as per Jogee, there is no need to prove a causal link between the secondary party’s assistance or encouragement, and the principal’s commission of the crime, but the secondary party must be proved to have assisted or encouraged the principal to commit the crime, or the type of crime, which the principal in fact committed. They rejected the submission that the presence of an unknown weapon must necessarily be an overwhelming supervening event. The issue of withdrawal had been properly left to the Jury on the facts of the case.
Despite concern that the joint enterprise net might still be cast too wide, the higher Courts decline to rule that, where the secondary parties anticipate unlawful violence, the presence of a hitherto unknown weapon must necessarily amount to an overwhelming supervening event. Nor are they prepared to rule that physically leaving the scene of an attack prior to the violence commencing will necessarily amount to withdrawal from the criminal enterprise. Both of these decisions might be surprising to ordinary members of the public.
Young men, with criminality in mind, need to remain outstandingly careful as to the company they keep and as to what their associates not only might have in their minds but also have in their pockets.
Further information
For more information from the crime team, contact clerks@36crime.co.uk
Involving John Lloyd-Jones KC and Diana Wilson