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Cite as: [2013] EWCA Crim 1433

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Neutral Citation Number: [2013] EWCA Crim 1433
No: 201202515 C1


Royal Courts of Justice
London, WC2A 2LL
11th July 2013

B e f o r e :





Computer Aided Transcript of the Stenograph Notes of
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Mrs F Oldham QC & Miss F Gerry appeared on behalf of the Appellant
Mr A Edis QC & Mr L Blackburn appeared on behalf of the Crown



Crown Copyright ©

  1. LORD JUSTICE LAWS: On 28th March 2012, before Dobbs J at the Leicester Crown Court, this appellant was convicted of murder and sentenced to imprisonment for life with a specified minimum term of 20 years less 289 days spent in custody on remand. His co-defendant, Mohammed Hirsi, was also convicted of murder and sentenced to life imprisonment with a minimum term of 22 years less 289 days.
  2. The appellant now appeals against his conviction by leave of the full court (Davis LJ, Andrew Smith and Jeremy Baker JJ) granted on 16th April 2013. Leave was granted on grounds 1 to 3, which are all concerned with aspects of the fact that the case against the appellant was one of joint enterprise. The court adjourned the application for leave on ground 4. That concerned an issue relating to disclosure. It was originally the purpose of Mrs Oldham QC for the appellant to pursue it at this hearing, but she has told us that it is abandoned and it is not therefore necessary to say anything more about it. The court on 16th April also stood over the applicant's application for leave to appeal against the length of the minimum prison term.
  3. This is the court's judgment on the grounds relating to conviction.
  4. At 2.23 am on 10th June 2011, the appellant and his co-defendant Hirsi went, not for the first time that night, to the home of a woman called Naomi Reid on the Rowlatts Hill estate in Leicester. They knew that Miss Reid and a man called Paul Fyfe, with whom Reid was in a sexual relationship, were at the premises. Hirsi entered the house unasked. The appellant remained near the front door. Hirsi confronted Fyfe. He took a knife from the kitchen block and stabbed Fyfe in the chest. Fyfe was pronounced dead at 2.15 am. The appellant had remained outside the front door.
  5. The appellant was a 22-year-old man who used and dealt in drugs. There was evidence of earlier bad feeling between him and Fyfe. Hirsi, aged 25, was a friend of the appellant. Fyfe, who worked as a paralegal, had on previous occasions represented both him and the appellant. He had also represented Reid's partner and the father of her children, who was known as Sunny, in the criminal proceedings in 2010, which had seen Sunny sentenced to a long prison term for drugs offences. Reid's relationship with Fyfe was concealed from Sunny and from her children.
  6. The appellant and Hirsi spent over eight hours together on the evening of 9th/10th June 2011. The longest period in which they were apart appears to be from about 1.15 am to 2.02 am, or possibly just after. They got increasingly drunk and intoxicated by cocaine and their behaviour became more aggressive. There was evidence, admitted without objection, of a number of instances showing that that is what happened.
  7. At length, at 11.42 pm they were dropped off at the Rowlatts Hill estate by a man called Harper. They woke up someone called Rana. He told them to "fuck off". Hirsi threatened to beat him up. At 11.56 they headed for Reid's flat. There had been text messages between the appellant and Reid about drugs. Reid let the appellant into the premises on his own. Once inside the appellant texted Hirsi, saying "Come back in two minutes". Hirsi duly turned up. Reid said the appellant seemed drunk. He told her about the encounter with the man Rana and was angry and aggressive as he did so. The appellant picked up a large knife from the kitchen block. He said that they should go and "shank" (that is stab) Rana and waved the knife about. Hirsi tried to calm him down and he returned the knife to the block. Then the appellant shared some cocaine with Reid. Reid knew that Fyfe would not like them being present. She said he would be back soon. The appellant said, what could Fyfe do about it. The appellant and Hirsi began to encourage each other, saying they could take Fyfe out. They talked about having a session and staying all night. Hirsi in particular spoke about not giving a shit and boasting about how he could be a rapist, robber, knock someone out or even kill someone.
  8. At 1 am the man Harper sent the appellant another text about more cocaine and they agreed to meet. The appellant and Hirsi left but they said they might come back. Reid told them not to bother because Fyfe would be coming and she was going to bed.
  9. Hirsi returned to Reid's home after 1 am, still drinking, and said the appellant would be returning shortly. Reid tried to get him to go before Fyfe arrived but he would not. Fyfe got there at 1.51 am. Hirsi started to taunt him, saying he had spent the evening with his, Fyfe's, girlfriend. Fyfe told him to go.
  10. At 2.02 am Reid phoned the appellant, telling him to take Hirsi away. The appellant, who had been taking cocaine, collected Hirsi. They left Reid's address at about 2.04. At 2.21 Reid sent the appellant a text. It read:
  11. "Safe Ameen. Don't bring that guy to my house again, otherwise I'll tell Sunny you're bringing guys round my house. See you tomorrow yeah x."

    But the two of them returned to her place at 2.23. It is a fair inference that the appellant had shown the text to Hirsi, though that was denied.

  12. Hirsi went in to the house. The appellant stayed near the front door. He was shouting about Sunny, Reid's partner. Fyfe came downstairs in his boxer shorts. There was an angry exchange between him and Hirsi. Fyfe went back upstairs to put on his jeans. Hirsi went to the kitchen. Then Reid saw that the knife block was empty. Reid was telling Hirsi and the appellant to leave. Fyfe was now back downstairs. This is how the judge summarised Reid's evidence as to what happened next:
  13. "'Ameen [that is the appellant] was outside the house smashing the car. I can't remember what they were saying but they were both irate and angry and shouting things. Ameen was egging Nelly [that is Hirsi] on to do something to Paul [that is Fyfe]. Ameen had a brandy bottle in his hand and at one stage he came right to the front door, ready to hit the bottle over Paul's head, but he didn't. He just threatened him with it. I saw him with his right hand raised. He was standing on the ledge of the front door and he was saying that he wanted to smash it over Paul's head as he lent forward past Nelly. He wouldn't have been able to reach Paul from there. Paul was trying to tell Nelly and Ameen to leave and Nelly said he wasn't going anywhere, as did Ameen. I was still in between them as it seemed like they were going to end up fighting. I told Nelly to leave the house as it wasn't worth it to get into trouble, and then I said I was going to call the police and then he pulled out the knife. I didn't manage to phone the police. He pulled out the knife from somewhere around the back, pointed it up against my chest whilst holding me by the throat. I think he had the knife in his right hand. I backed off and went into the kitchen to lock myself in there, and for a brief second the kitchen door was shut. As I opened the kitchen door I saw the back of Paul near the front door. He was facing the front door which was open. Nelly was in front of him, an arm's length away from Paul. Paul was standing in the passage where the washing machine was'. You have got photographs, members of the jury, of the washing machine. 'Nelly was inside the front door. Ameen was outside near the car. There was stuff being said but I can't remember exactly what was said, but Ameen was egging Nelly on to do something to Paul. Paul was trying to calm the situation and get them out of the house and asked Nelly, "What are you going to do? You going to stab me with it?" and Nelly stabbed him and I heard Paul say "You stabbed me". Paul was in front of me with his back to me and I saw Hirsi make a stabbing motion with the knife towards Paul, towards his chest. I didn't see the blade enter him'."

    Then later this:

    "Paul went upstairs and put his jeans on. She said that it happened very quickly and that it took longer to describe the events than the events themselves. Ameen was still outside and the door was not fully open because of the washing machine. When Nelly went into the kitchen he did not say anything about a knife and he came in and out very quickly, and Ameen was not saying anything at that time. Paul was at the bottom of the stairs. She was in the middle with Nelly facing her and from outside he would have his back to anyone outside. Ameen was outside the house smashing the car at that stage. Ameen came to the door, put a foot on the ledge, egging Nelly on. She denied that he was raising the bottle and saying, 'Come on' to Hirsi, as if 'Come on, leave the house'. She said: 'I couldn't hear what Ameen was saying when he leant forward. It was threatening, as if he was being aggressive with it, but he was not within reach of Paul and he didn't remain there. She said it was a matter of seconds before Nelly drew the knife out and stabbed Paul."
  14. The learned judge rejected a submission advanced on behalf of the appellant at the close of the prosecution case that there was no case to go to the jury. The court granting leave on 16th April 2013 thought that the judge had given no reasons for that ruling. In fact, we now have a transcript showing she gave a fully reasoned decision.
  15. Neither defendant gave evidence at the trial.
  16. There were originally four grounds against conviction. Only three remain live. The fourth has been abandoned, as we have indicated. The three live grounds are these. As set out in the grounds:
  17. "(i) The learned judge wrongly rejected a submission of no case to answer as there was no evidence upon which a properly directed jury could infer encouragement of joint enterprise murder.
    (ii) The learned Judge directed the jury that they could only convict this Appellant as a secondary party if he foresaw that a knife 'might' be used. This was in accordance with authority in relation to group attacks but, in this case, such a direction was insufficiently precise and invited assumption/speculation.
    (iii) In a case such as this where 'encouragement' to joint enterprise is concerned, a jury should be directed not to convict unless they are sure that the defendant knew there was a weapon or use of a fatal weapon was a 'real probability'. The language of risk and possibility disregards the standard of proof. The direction should have been 'realised Hirsi would' use a weapon not 'realised Hirsi might'."
  18. It is convenient first to deal briefly with the complaint advanced both in the submission of no case and in counsel's advice and grounds which is that the Crown shifted its ground. Whereas it is submitted the case was opened on the basis that the appellant had actively encouraged Hirsi to commit the fatal assault, when it came to the half-time submission the case was being put on the basis of the appellant's continued association with Hirsi that night, knowing there was a real risk that he might act as in fact he did.
  19. There is, with respect to Mrs Oldham, nothing in this. Even if there were a shift of ground or at least of emphasis, it could not avail the appellant in the absence of demonstrated unfairness of the trial process, and there is none. But there was in substance no shift of ground. The Crown's written argument in response to the no case submission included this:
  20. "The prosecution opening as a whole made it clear that the Crown case against Jogee is put on the basis of continued association and encouragement. Both are relied on as part of the factual matrix upon which joint enterprise in this case is founded."

    We have seen nothing to refute this as a proposition. The judge dealing with the no case submission effectively reached the same conclusion: see the transcript of the ruling at page 15A.

  21. We turn to the substantive points on grounds 1 to 3. There is first a submission, no doubt embraced within the first ground at paragraph 19 of the written skeleton argument for the appellant, that the evidence of Reid, the sole witness to the killing, was so undermined in cross-examination that no reasonable jury could have relied on it, and it for that reason the case should have been withdrawn at the end of the Crown case. This is part and parcel though not the whole of ground 1. As a freestanding point, however, it goes nowhere. Inconsistencies in Reid's evidence were addressed by the judge carefully and properly at 47A and following of the summing-up. It was manifestly for the jury to decide whether they believed her or not.
  22. The appellant's real case on grounds 1 to 3, and the argument emphasised by Mrs Oldham QC this morning, is that the appellant could only be convicted of murder if it were shown that he knew that Hirsi was in possession of a weapon -- on the facts the knife from the kitchen -- and appreciated that Hirsi might use it to inflict grievous bodily harm or worse. Here, it is said there was no evidence to demonstrate such knowledge on the part of the appellant and the judge directed the jury in a manner inconsistent with the proposition that proof of Hirsi's possession of the knife was required.
  23. Rejecting the no case submission, the judge answered a question she posed herself: was there sufficient evidence on which a reasonable jury properly directed could convict? This is how she answered it:
  24. "In my judgment, there is. If there was no evidence of the former incident involving the knife in the kitchen, then the prosecution would have a problem, but given the knowledge of both Defendants of the existence and availability of the knife in the kitchen, set against the other background evidence relied on by the Crown, it is open to the jury to find that Jogee realised that Hirsi might use a knife, intending to cause at least serious bodily harm and participated by encouragement and that Hirsi killed with the requisite intent. Whether they do so is another matter, and the points raised by the defence are matters to which the jury will need to pay close attention."
  25. Summing-up to the jury, the learned judge said this, first at page 7C in the summing-up transcript:
  26. "In this case the Prosecution allege that both defendants are responsible for the death of Paul Fyfe, Hirsi by stabbing him and Jogee by encouraging Hirsi."

    Then at page 8E:

    "What is the position in law of the other person, in this case Jogee, where a potentially lethal weapon is used by the other? Let me break that down for you. If A during the course of a fight pulls out a knife and uses it to kill and when he did so he intended to kill or cause grievous bodily harm A will be guilty of murder if the victim dies. If another, B, participates by encouragement he will be guilty of murder if he (a) knew A had the knife and (b) shared A's intention to kill or do really serious bodily harm, and A, with the requisite intent, kills X. Or if, although he did not share A's intention to kill or do serious bodily harm, B realised that A might use the knife with the intention to kill or cause serious bodily harm and he nevertheless took part by encouraging A and A, with the requisite intent, kills X. So here a degree of foresight is required.
    The Prosecution say that Jogee knew that Hirsi could get hold of a knife at the house and that he realised that Hirsi might use the knife with intent to kill or cause Paul Fyfe serious bodily harm, and nevertheless, with that knowledge, participated in the attack on Paul Fyfe by encouraging Hirsi. That encouragement took the form of verbal encouragement to harm Paul Fyfe; threatening serious violence towards Paul Fyfe himself when threatening to smash a brandy bottle over Paul Fyfe's head; deliberately damaging Paul Fyfe's car in close proximity to where Hirsi was attacking Paul Fyfe, and being close at hand to lend support."

    Then a little later there is this further direction, at page 11E and following:

    "So far as Mr Jogee is concerned, you can only convict him of murder if you have already found Hirsi guilty of murder. If you find Hirsi guilty of murder ask yourselves Question 1: Are you sure that Jogee participated in the attack on Paul Fyfe by encouraging Hirsi by the means relied on by the Prosecution which I have already set out? If you are not sure that Jogee participated in the attack on Paul Fyfe then that is the end of the matter and he is not guilty. If the answer is 'yes', move on to Question 2: Are you sure that when he participated he realised that Hirsi might use the kitchen knife to stab Paul Fyfe with intent to cause Paul Fyfe serious bodily harm. If, for instance, you think it may be the case that by taking and using the knife Hirsi was acting outside the scope of the joint enterprise, in other words that he had gone on a frolic of his own, and it was not something that Jogee could have contemplated, then your verdict will be not guilty. However, if your answer is 'yes', then Jogee would be guilty of murder."
  27. The appellant by Mrs Oldham submits that the approach adopted by the judge is appropriate for cases of joint enterprise by participation, but not for cases of joint enterprise by encouragement.
  28. In our judgment, the law would take a step backwards if it endorsed such a distinction. In Rahman [2009] 1 AC 129, Lord Brown stated:
  29. "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B."
  30. There is no principled basis on which this reasoning should be applied only to cases of participation and not to cases of encouragement. Indeed, the distinction between the two is, to say the least, permeable. Encouragement is a form of participation; that is why it is enough to convict a secondary party. The actus reus of the secondary party's crime is lending support to the primary actor, whether by active participation or encouragement or both. The mental element, the mens rea, of the secondary party's crime is an appreciation that the primary actor might inflict grievous bodily harm and a willingness to lend his support notwithstanding.
  31. This, in essence, was the approach followed by the learned judge both in rejecting the no case submission and in directing the jury, and it is consistent with earlier authority, including not only Rahman but also this court's recent decision in Carpenter [2012] 1 Cr App R 11.
  32. There is nothing in the circumstances of Mrs Oldham's rhetorical question upon the judge's comment at page C7-D which we have read: what is it, she asks, that Jogee was supposed to be encouraging? The summing-up clearly directs the jury as to the circumstances obtaining at the critical moments.
  33. There is, in our judgment, nothing in this appeal against conviction which will be dismissed.
  34. (Submissions on appeal against sentence followed)
    - - - - -
  35. LORD JUSTICE LAWS: We turn now to the application for leave to appeal against sentence which was adjourned, as we have said, by the full court in April. We do not repeat the facts of the case which are given in our judgment on the conviction appeal.
  36. The appellant is 22. He has previous convictions for common assault in 2002 and 2003, possession of an offensive weapon in 2003, possession of a prohibited weapon in 2003, 2004 and 2006, battery in 2009 and aggravated vehicle taking in 2010. There are also some drugs convictions. There is no previous conviction however, as Mrs Oldham has sought to emphasise, for an offence that involved this degree of violence.
  37. The learned single judge refusing leave to appeal against sentence said this:
  38. "As to sentence, a 20 year minimum term was not excessive for your participation in a stabbing with a large knife applied with severe force in the early hours of the morning at Naomi's house (which you had entered, uninvited, about an hour before the killing and then returned to again) in front of the victim's partner, carried out with a view to sorting the victim out over a text message you had received, and when you:
    I. were under the influence of alcohol;
    II. knew that Hirsi was drunk and dangerous;
    III. encouraged him to attack the victim when you realised he was going for a knife and, later, when he had it; and
    IV. had a substantial criminal record, including for drugs and violence.
    The judge made appropriate allowance for the fact that it was not you who wielded the knife."
  39. We have considered this very carefully. The correct starting point was 15 years. It falls to be reduced because, as the judge found, there was no intention to kill. However, it falls to be increased again having to the aggravating features in the case. They are essentially the fact it was committed at the victim's home, or his girlfriend's home, the use of the knife and its later disposal and the antecedent history which we have recited. There was, on the other hand, no planning, and what has moved us is that there was here no very great distinction between the minimum terms passed in relation to the primary offender Hirsi and this applicant.
  40. In all those circumstances we consider that the appropriate minimum term here was certainly significantly above the starting point of 15. It should have been 18 years, rather than 20. We will grant leave to appeal and allow the appeal to the extent that we substitute that minimum term for the 20 years imposed by the learned trial judge.

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