Abstract
On the evening of 19 May 2007, Dean Curtis (19) and the two appellants, Jordan Towers (16) and Anthony Hawkes (17) were involved in two separate incidents. The first involved the murder of Kevin Johnson who was stabbed by either Hawkes or Curtis. The attack took place in Sunderland when Mr Johnson heard a disturbance outside his home that evening. When he went outside, he was confronted by Curtis, Hawkes and Towers who enticed him over the road and then surrounded him. Johnson was struck several times by Curtis and Hawkes and during this confrontation four stab wounds were inflicted upon the victim. Three of the wounds were minor but the final wound ruptured the victim’s heart, killing him. As Curtis and Hawkes were attacking Mr Johnson, Towers stood further back. He admitted to police that he had swung punches at Mr Johnson and then threw a paving slab at his legs, however, all of the blows and the paving slab missed the intended target. Towers later told police that he had been unaware that Johnson had been stabbed until he saw the blood on his clothing. The three youths then left the scene and they were heard by witnesses arguing about the incident, clearly unhappy with what had transpired.
The second incident occurred later that evening. Mr Thompson was walking home when he was approached by Towers who asked for a cigarette. The other two then joined him and one of the youths recognised Thompson. At this stage, Curtis and Hawkes seemed to act aggressively, seeking a fight with Thompson. Hawkes then stepped towards Thompson and stabbed him in the chest. Thompson then fled the scene and later attended hospital for a non-fatal wound which required two stitches.
Curtis, Towers and Hawkes were convicted of the murder of Mr Johnson and with wounding with intent in relation to Mr Thompson, contrary to s 18 of the Offences Against the Person Act 1861. At trial, Towers chose not to give evidence. Curtis and Hawkes did give evidence and blamed each other for the stabbing of Johnson, but both exculpated Towers. All three youths were armed that night with Towers carrying a knife, Curtis wielding a screwdriver and Hawkes carrying a Stanley knife. In police interview, Towers admitted to having the knife but claimed that it was for show, to intimidate, but he had no intention of ever using it. The knife was discarded later that evening and Towers led the police to where he had left it, and it was excluded as a murder weapon. During their evidence, Curtis and Hawkes stated that they were unaware that Towers was carrying a knife.
The trial judge directed the jury that, in relation to Towers, that if they concluded that he did not deliver the fatal wound to Johnson, that they should ask whether they were sure that he joined in unlawfully on the attack of the victim. If so, they would then consider whether he was aware that the perpetrator of his killing possessed a knife. Next they must consider whether they were sure that the defendant shared the perpetrator’s intention either to kill or cause serious bodily harm to the victim. If yes, he would be guilty of murder, otherwise they must consider whether they were sure that the defendant realised that the perpetrator may use the knife with an intention to kill or cause serious bodily harm to Mr Johnson but nevertheless took part. If the answers to these questions were yes, he would be guilty of murder. If, however, the answers to any of these questions were no, then he would not be guilty of murder or manslaughter. But, if the jury were sure that he participated in the attack and that he realised that the perpetrator might use the knife with the intention of causing some harm, not serious harm, but some harm which was short of really serious bodily harm, then he would be guilty of manslaughter.
In relation to the charge of wounding with intent contrary to s 18, the judge directed the jury that they must be sure that the defendant shared Hawkes’ intention to commit the offence of wounding with intent or the lessor offence of unlawful wounding. If so, they must be sure that the defendant took some part, however small, in committing the offence. If the answer is yes, then the defendant is guilty of the particular offence of s 18 or s 20. If they are not sure, however, then the verdict is not guilty.
Following these directions, the jury unanimously returned with guilty verdicts for murder and s 18 in relation to all three defendants. Curtis was given a life sentence with a minimum tariff of 17 years minus time served. Hawkes, being under 18, was given a term of 16 years’ imprisonment. Likewise, Towers, who was also under 18, was given a minimum terms of 13 years minus time served on remand.
This appeal in this case was brought by the Criminal Case Review Commission (CCRC) in light of the recent change in the law effected by the decision in R v Jogee; Ruddock v The Queen [2016] UKSC 8 which abolished the principle of joint enterprise and the subsequent guidance set out in R v Johnson [2016] EWCA Crim 1613 regarding when a case can be appealed. The CCRC argued that due to the change in the law regarding joint enterprise, Towers was involved in a chance encounter rather than a prior criminal venture and as such only possessed an intention to look for trouble rather than a shared intention to commit really serious harm. They argued that it was likely that mere foresight of harm was central to his conviction and as such there were sufficient grounds to warrant an appeal. A second ground was raised separately by Towers’ counsel relating to the judge’s direction towards the jury in relation to inferences that can be made from Tower’s decision not to give evidence under the Criminal Justice and Public Order Act 1994, s 35. The trial judge had agreed that no adverse inferences should be made in relation to Towers’ failure to give evidence due to the age of the defendant, the serious nature of the allegations against him and the advice he received from his solicitor at the police station. Counsel were not satisfied that the judge properly directed the jury in this regard during his summing up.
Commentary
Central to this appeal is the change in law regarding joint enterprise set out in the case of R v Jogee; Ruddock v The Queen, where the Supreme Court concluded that English law had made a wrong turn in the case of Chan Wing-Sui [1985] AC 168 in the development of the doctrine of joint enterprise and that liability for secondary participants should instead rest upon the following principles: That D2 assists or encourages the commission of an offence by D1 and in doing so, D2 must intend to assist or encourage D1 to carry out the offence and this ‘requires knowledge of any existing facts necessary for it to be criminal’ (at [9]). The Supreme Court adding that: There can be no doubt that if D2 continues to participate in crime A with foresight that D1 may commit crime B, that is evidence, and sometimes powerful evidence, of an intent to assist D1 in crime B. But it is evidence of such intent (or, if one likes, of ‘authorisation’), not conclusive of it. (at [66]) If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose; or in other words that it was within the scope of the plan to which D2 gave his assent and intentional support. But that will be a question of fact for the jury in all the circumstances. (at [94])
The Supreme Court in Jogee were concerned that the impact of their decision to overrule the line of case law stemming from Chan Wing-Sui should not render all prior cases decided under joint enterprise laws invalid and that in order for a case to be granted leave for appeal out of time, it must be demonstrated that a ‘substantial injustice’ has taken place. The ‘substantial injustice test’ has been clarified and set out in the leading case of R v Johnson [2016] EWCA Crim 1613, where the Court of Appeal stated that: The requirement takes into account the requirement in a common law system for a court to be able to alter or correct the law upon which a large number of cases have been determined without the consequence that each of those cases can be re-opened. It also takes into account the interests of the victim (or the victim’s family), particularly in cases where death has resulted and closure is particularly important. (at [18]) If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. (at [21])
Counsel for Towers argued that there was little difference between the ‘substantial injustice’ test from Johnson and the conventional test for safety set out in R v Davis [2001] 1 Cr App R 8 which asks whether ‘[a]ssuming 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?’ (at [29]). It was counsel’s contention that the wording of the primary consideration set out in Johnson failed to explicitly deviate from the Davis test. His contention was that as Johnson dealt primarily with conjoined appeals related to murder, that the primary consideration in this case was one and the same as that required under Davis. Therefore, Counsel’s suggestion was that the substantial injustice test is met unless assuming the trial had been free from error, the only proper and reasonable verdict would have been one of guilty.
The Court in Towers rejected this argument, stating that it is ‘clear that the substantial injustice test is a distinct one from that of safety, and one which brings with it a considerably higher threshold to justify interference with the conviction’ (at [61]). Their lordships clarified that ‘the same considerations will often be relevant to both tests does not make the two tests the same’ (at [61]). The Court relied upon Ordu v R [2017] EWCA Crim 4 where Edis J stated ‘There is an obvious difference between the two exercises which give rise to the two tests’ (at [26]) and R v Crilly [2018] EWCA Crim 168 where Lady Justice Hallett confirmed the Johnson principle: First, to qualify for the grant of exceptional leave the applicant must establish a ‘substantial injustice’ would be caused if it was denied. The fact that there has been a change in the law is not in itself sufficient where a person was properly convicted on the law as it stood at the time of trial, as here. Second, the threshold for demonstrating a substantial injustice is a high one. Third, in determining whether that high threshold has been met the court will have regard to the strength of the case advanced, that a change in the law would in fact have made a difference. (at [36]) First, Towers involved himself in a joint enterprise knowing that he and his co-adventurers were armed. Second, he took part in, or associated himself with, the attack (however ineffectually) by lifting and throwing a paving slab at Mr Johnson when two others were or had been attacking him. Third, he went on, with the intention of causing grievous bodily harm, to involve himself in the attack on Thompson (whether by attracting his attention, encouraging or otherwise): the fact that Towers might have had animus to Mr Thompson does not undermine the intention found by the jury to have been proved in an attack so soon after that on Johnson. (at [71])
During summing up, the Judge reminded the jury that Towers had not given evidence but also explained that he had no obligation to do so as it was up to the prosecution to prove their case. He advised the jury that Towers’ failure to give evidence should neither proved anything one way nor another, nor did it do anything to establish his guilt. But he advised the jury that it did mean that there was no evidence from Towers to undermine, contradict or explain the evidence put forward by the prosecution. Later in his summing up, the trial judge stated that he played perhaps a greater part in this than might at first be apparent and the reason that he did not give evidence was because he knew he would be asked questions for which there was no answer. At the end of the judge’s summing up, defence counsel asked the judge to clarify the reason why Towers had chosen not to give evidence and the Judge obliged, suggesting the factors included his young age (16) and that he was in prison with the other two defendants and their families and associates lived almost a matter of yards away. The judge then told the jury that they now had those specific reasons and that he gave them the force of a direction.
It was held that although the judge did not give the jury the specimen direction what he did say was deemed ‘forceful and comprehensive’ (at [85]) by the Court of Appeal. The Court recognised the ruling in R v McGarry [1999] 1 WLR 1500 which requires that the jury should not be left in ‘some no man’s land between the common law principle and the statutory exception without any guide to tell them how to regard the defendant’s silence’ (at p 1506). Leveson, however, rejected the notion that the trial judge’s direction would give rise to any ground of appeal. The judge did not endorse the prosecution’s invitation to draw adverse inferences and the jury were properly provided with the reasons for Towers’ refusal to give evidence during the final exchange. It was significant that the judge gave these reasons the ‘force of a direction’ and at the beginning of his direction he had given the standard direction that the jury must ‘loyally follow the directions of law’ that he provides. The irregularities of the judge’s direction did not affect the safety of Towers’ conviction and the summing up could not leave the jury in any doubt that no proper inferences could be drawn from the defendant’s silence.