Case No: 99/03443/Y3
 
IN THE COURT OF APPEAL
 (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 3 February 2000

B e f o r e :

LORD JUSTICE OTTON
MR JUSTICE OWEN
and 
RECORDER OF MANCHESTER
HHJ SIR RHYS DAVIES QC

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	REGINA		
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	Gary Ian ROBINSON		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
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Mr William Adlard (instructed by The Registrar for the Appellant) 353 2112
Mr Nicholas Rowland (instructed by The CPS, Solicitors for the Prosecution) 01962 868884

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Otton:

In the Crown Court at Winchester before HHJ Brodrick the appellant was convicted of causing grievous bodily harm with intent (Count 1) having pleaded guilty to assault occasioning actual bodily harm (Count 3).

He appeals against conviction by leave of the single judge.  His co-accused, Spiers, pleaded guilty to Count 1, Mercer to Count 3 and Laura Walker to Affray (Count 4).  Verdicts of not-guilty were entered on the judge’s direction against Walker, Mercer, White and Oliver Mackrell (Counts 1 & 2).  

The victim, Mr Waters, was attacked by a group near to Petersfield railway station during the hours of darkness in December 1998.  He suffered extensive facial bone fractures, which required surgery, and lacerations.  In March he was still under review in out-patients and had some persistent symptoms, including headaches and sleep disturbance.  The prosecution alleged primarily that the appellant was involved in the incident, striking more than one blow (as he was alleged to have admitted to a police officer) and was, therefore, playing his part in a joint enterprise to cause grievous bodily harm and in doing so with intent.  Alternatively, if he were not part of such a joint enterprise, the appellant encouraged the others to commit the offence, by the punch, which initiated the whole incident.  He delivered the punch intending the others to join in and cause grievous bodily harm to the victim and by punching in those circumstances, he wilfully encouraged the others to commit the offence.  

The appellant had pleaded guilty to Count 3 but maintained that he had thereby admitted the sole part that he played in the incident.  He wanted a one-to-one fight and struck at the victim only one blow.  He did not think that the others would get involved.  The jury could not be sure that he struck more than blow or that his intention was not solely to have a one-to-one fight with Mr Waters.

There was evidence that towards the end of the attack, the appellant was seeking to protect the victim and persuade the others not to attack him any further.  The issue is whether he was a party to the joint enterprise at all and if so, might he have withdrawn from that joint enterprise, so that he was not liable for the injuries inflicted by others.

Mr Waters in evidence described how he was walking in Petersfield along the road leading to the station.  He had been drinking but was not incapable.  He went into the telephone kiosk in the station to make a call.  A group of young people were gathered around the kiosk.  He felt the kiosk shudder and when he left, words were exchanged with the group.  He left the station and walked to a shop, “One Stop”, followed by some of the group, including mainly, if not solely, the appellant’s co-accused, but not the appellant, who was not on the scene at this stage.  Inside the shop there was some trouble with a female from the group and Mr Waters was obliged to seek help from a shop assistant.  On leaving he noticed a few people gathering outside the shop but he was able to carry on his journey home.  He became aware that he was being followed by the group who by this time were shouting abuse.  After the level crossing Mr Waters heard the shouting was closer and a bottle was thrown past him.  He turned and confronted the group, which included the girl he had encountered in the shop and other females.  When he was at the island, he felt a blow to his head which knocked him to the floor.  He got up and was hit again and he went to the floor.  He remembered a series of blows to his body and head while he was on the floor.  He blacked out and the next thing he knew he was at home.  He was taken to hospital where he stayed for 7 days.

Christopher Hope had gone to the “One Stop” with the appellant.  The appellant talked to the group outside who told him someone inside wanted a fight.  He and the appellant left the shop at the same time and as they walked out he saw everybody go off in a group.  The appellant was at the rear of the group and Mr Hope heard words of abuse.  The appellant did not say anything at this stage but others in the group were egging him on saying, “Hit him Gary”.  He was worried because he heard that the group were going to get Waters.  Later he saw Waters being beaten up on the floor with 4 or 5 people punching and kicking him.  The appellant and Hope then tried to protect the victim and they stopped the others from persisting with the attack.  The group then disappeared.  Other witnesses described the attack in general terms.  

Special Constable Keeling was in the area and sensed that there was going to be trouble and alerted the Police.  Uniformed officers arrived shortly afterwards.  As Mr Keeling approached the scene, two males (the appellant and Hope) passed him and the appellant said “I only landed a couple”.  

In interview the appellant said that he and Hope were about to go into the shop when Waters came steaming out of the shop and pushed into him.  He remonstrated with Waters who was abusive.  He had spoken to the group of about 10 to 12 people outside the shop and they said that a fellow with blond hair was wanting to take the world on and offering to take on the whole group.  When the group asked him to hit the man the appellant told them to do it themselves.  He followed behind the group and heard a lot of shouting but he did not recall people suggesting that he should hit Waters and he did not hit him as a result of such encouragement.  He admitted hitting Waters in the face whereupon he stumbled backwards.  He was the first to hit him and said that he had done so because it flashed through his mind that he might as well.  Mr Waters did not fight back and the appellant just left him.  Waters got up off the floor and the others started hitting him.  He did not realise the others were going to jump in.  As the others were punching and kicking he went over and told them to leave Mr Waters alone which they did.

When he gave evidence he was more forthcoming.  In cross-examination he stated that he was aware that trouble was brewing from the time when he arrived.  He wanted a one-to-one fight with Waters but he was not surprised that the others kicked and punched him because the appellant had been asked to put him on the floor.  They said “Put him on the floor and we’ll sort him out”.  And later:  “I had been asked to put him on the floor so that they could give him a good kicking.  .... I was being asked to attack him”.  Having hit him once (or possibly twice) he stood apart from the group of about 15, 8-10 of whom were repeatedly kicking and punching the victim as he was lying down half curled up.  He and Hope went to break it up and he told them to leave the victim alone.  They pulled a couple off and the rest of the group walked away.  

The Appeal
In submissions at the close of the prosecution case a discussion took place between the judge and counsel on the issue whether the evidence established a prima facie case that the defendant had become a party to a joint enterprise and the possibility was raised whether he had withdrawn from one.  The principal ground of appeal centres upon the direction on withdrawal from a joint enterprise in the following terms:

"One last principle in relation to joint enterprise.  There is evidence that towards the end of the incident Robinson had, if you like, changed sides, that he was seeking to protect Waters and to persuade people not to attack him any further.  Once a person becomes a party to a joint enterprise he remains a party unless and until he has withdrawn from the joint enterprise and it is for the prosecution to prove that he remains a member of the joint enterprise, it is not for him to prove that he has withdrawn from it.  If you come to the conclusion that he has or may have withdrawn from the joint enterprise then from that moment onwards he cannot be liable for what others continue to do in furtherance of a joint enterprise.  He is of course liable for everything done in furtherance of the joint enterprise up to the moment where he has withdrawn.  What amounts to an effective withdrawal from a joint enterprise will vary from case to case and will depend upon the circumstances of each individual case, but the law is clear at least about this, it is not sufficient to have your own private second thoughts and to say to yourself but to nobody else “I don’t propose to go through with this .”  That does not amount to a withdrawal from a joint enterprise.  The bare minimum that is required in order to withdraw from a joint enterprise is to communicate to the other members of the joint enterprise the fact that you are withdrawing.  The significance of that is that unless and until you communicate your intention to withdraw they will be continuing to look to you for support, and will be assuming that you are going to play your part.  So the bare minimum requirement is communication to the other members of the joint enterprise of the fact that you are withdrawing, and of course communication can be either by words or by deeds or both.   If it is within your power to prevent the commission of the offence after you decide to withdraw then a failure to take steps to prevent it may indicate that you have not in fact withdrawn.  It is a question of fact and degree for you to decide.  ON the other hand again it is a matter of fact and degree for you - efforts to prevent the commission of the offence may provide a basis for suggesting that the person concerned has in fact withdrawn and may perhaps be endeavouring to communicate that fact.  Members of the jury, once the parties to a joint enterprise have begun to commit the crime contemplated by the joint enterprise you may think that withdrawal becomes that much more difficult and that it is easier for the Crown to prove as they must that the person concerned continues to be a party to the joint enterprise, and you may think that the indications of withdrawal have to be that much more compelling once the parties have embarked upon committing the offence in question.  But again it is a matter at the end of the day for you to decide and I am simply seeking to give you some general guidance.  Where the allegation is that the defendant has encouraged the commission of an offence and it is shown that he has in fact wilfully encouraged the commission of the offence, then by the time he has given his encouragement he has played his part and thereafter he cannot escape liability by attempting to withdraw at that stage; his part has been played."  (Emphasis added)

Mr William Adlard, on behalf of the appellant, submits that the direction is flawed in two respects.  First, that it was a misdirection that the appellant was required to communicate to the other members of the joint enterprise the fact that he was withdrawing and that the communication had to be either by words or deeds or both,  in the light of the decision of this Court in R v Mitchell & another [1999] CLR 496 (24 July 1998, 9705605/W5) where it was held that in a case of spontaneous violence a direction to the test of communication of withdrawal was not appropriate, since such communication was only a necessary condition for disassociation from pre-planned violence.  The instant case was not a case of pre-planned violence but spontaneous violence in the broadest sense.  Communication of withdrawal was not required nor was it practicable or reasonable for the appellant to have communicated his withdrawal to the other members of the joint enterprise.

Counsel further submits that even so, there was evidence that the appellant having delivered the first blow stood apart and played no further part until he stepped in to stop the violence.  Thus the jury should have been directed that if this evidence might be true then it was capable of amounting to a defence either that he was never a party to the joint enterprise at all, or if he was initially he had ceased to be immediately after the initial blow and before the Section 18 violence was inflicted.  Alternatively, that his conduct was consistent with communication of withdrawal by deed.  

In order to evaluate this submission it is necessary to examine briefly the line of authority leading up to the decision in Mitchell.  The starting point is the seminal dicta of Sloan JA in R v Whitehouse [1941] 1 WWR 172 (Court of Appeal British Columbia):

"After a crime has been committed and before a prior abandonment of the common enterprise may be found there must be in the absence of exceptional circumstances something more that a mere mental change of intention and physical change of place by those associates who wish to disassociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of the crime.  I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility.  That must depend on the circumstances of each case, but it seems to me that one essential element ought to be established in a case of this kind.  Where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to disassociate from the contemplated crime to those who desire to continue with it.  What is timely communication must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw."

In R v Becerra and ors [1975] 62 CR App R 212 the Court of Appeal expressly approved and adopted in its entirety the above passage as a correct statement of the law.

Likewise, in R v Perman (1996)  1CAR 24  this Court considered at p 34:

“ Per curiam:  It is questionable whether once the criminal activity contemplated in a joint enterprise has commenced,  it is possible for a party to the joint enterprise to withdraw,  and whether it is ever open to a party to a joint enterprise to say that he is not criminally responsible for all that is done in that criminal activity which is within the scope of the joint enterprise. “

In R v Mitchell the defence case was that if there had been a joint enterprise to inflict violence on the deceased that joint enterprise had ended by the time the fatal blows were struck.  The judge gave an appropriate direction on joint enterprise, according to the state of the law at the date of the trial (as laid down in Powell and English) [1997] 3 WLR 959).  When dealing with withdrawal from the joint enterprise the judge directed them that in order for there to be a withdrawal, the one essential element that had to be established was that there had been a timely communication of the intention to abandon the common purpose from those who wished to disassociate from the contemplated crime.  Thus, the issue turned upon the distinction between pre-planned and spontaneous violence.  Having considered the dicta of Sloan JA I said (at page 10):

"The case from which this passage is taken concerned pre-planned violence.  Communication of withdrawal is a necessary condition for disassociation from pre-planned violence.  It is not necessary when the violence is spontaneous.  Although absent any communication, it may, as a matter of evidence, be easier to persuade a jury that a defendant, who had previously participated, had not in fact withdrawn.  Such considerations are clearly relevant in such cases, but less so when the violence has erupted spontaneously.

Thus as this was a case of spontaneous violence, the direction as to the test of communication of withdrawal was not appropriate.  The directions given may have led the jury to proceed on the basis that if either Frank Mitchell or King did not communicate his withdrawal to the other or to the principle party, he was still guilty of murder."

There is a fundamental distinction between the facts in Mitchell and the instant case.  The former was an undoubted case of spontaneous violence.  This was not so in the instant case.  The evidence clearly showed that there was a build up of an ugly situation which eventually erupted into violence.  The group of louts tracked their victim with the obvious intent to inflict some violence upon him should the situation conveniently arise.  As the tension began to build a bottle was thrown.  Thus at that stage it was a joint enterprise.  There is some doubt that up until then the appellant had  yet joined the enterprise.  However, according to the appellant’s own evidence, one of the group looked to him as the one to initiate violence on their intended victim.  In evidence Hope described how he and the appellant had followed the group for about 70 - 80 yards.  “People in the group were egging (Gary Robinson) on saying ‘hit him Gary, go on’”.  The appellant said:

"I was aware that the group didn’t like him.  I was aware that trouble was brewing.  I didn’t know when I punched Waters that it would lead to further trouble.  I wanted a one-to-one fight with Waters and I gave no thought to the rest of the group getting involved.  I wasn’t surprised that the others kicked and punched because I was asked to put him on the floor ----  they said “put him on the floor and we’ll sort him out”."

Thus at the time he delivered the first blow he had entered the joint enterprise.  He must have realised that violence might erupt after he had hit the victim and was not surprised when it did.  As Mr Nicholas Rowland put it on behalf of the Crown:

"The appellant’s initial assault on the victim was the catalyst for others to join in the kicking and punching."

The victim fell to the ground and the rest of the group closed in and attacked the victim who by then was unable to defend himself.  There was at that stage no hope of any assistance.  When the appellant thought that the victim had had enough he told the others to stop and they did.  In such circumstances it cannot be contended that he was not a party to the joint enterprise when the others joined in.  Nor can it be said that he had abandoned or withdrawn from the joint enterprise while the other blows went into the body of the hapless victim.  Thus this case fell within the parameters of the situation envisaged by Sloan JA that after a crime has been committed and before a prior abandonment may be found, there must be in the absence of exceptional circumstances something more than a mere mental change of intention and physical change of pace by an associate who wishes to disassociate himself from the consequences attendant upon his willing assistance up to the moment of the actual commission of the crime.  This was a case which called for a timely and unequivocal communication by word and deed of the intention to abandon the common purpose to those who desired to continue with it.  Merely standing by could not relieve the appellant of his responsibility.  

In our judgment the matter does not end there.  There is a clear line of authority that where a party has given encouragement to others to commit an offence it cannot be withdrawn once the offence has commenced.  (See R v Whitefield [1984] 79 CAR 36, R v Rook [1993] 97 CAR 327 and R v Pearman [1996] 1 CAR p24).

Professor Sir John smith in his commentary on the decision in Mitchell addressed the issue thus (at page 497 supra):

"A party who withdraws from an enterprise, spontaneous or not, usually ceases to assist but he does not necessarily cease to encourage.  Suppose that A is encouraged in the fight because he knows B is in there with him.  If B decides he had has enough and quietly slopes off without attracting A’s attention, the external element of secondary participation still continues.  B’s encouragement of A is still operative.  Does mere withdrawal then relieve B of responsibility?  In principle, it seems that it should not do so.  A person who has done an act which makes him potentially liable for a crime cannot relieve himself of responsibility by a mere change of mind."

He then gives a colourful and graphic illustration of the point:
"Once the arrow is in the air, it is no use wishing to have never let it go - “Please God, let it miss!”  The archer is guilty of homicide when the arrow gets the victim through the heart.  The withdrawer, it is true, does not merely change his mind: he withdraws - but is that relevant if the withdrawal has no more effect on subsequent events than the archer’s repentance?"

Thus the Professor emphasises that it can only be in exceptional circumstances that a person can withdraw from a crime he has initiated.  Similarly in those rare circumstances communication of withdrawal must be given in order to give the principal offenders the opportunity to desist rather than complete the crime.  This must be so even in situations of spontaneous violence unless it is not practicable or reasonable so to communicate as in the exceptional circumstances pertaining in Mitchell where the accused threw down his weapon and moved away before the final and fatal blows were inflicted.

In reaching our conclusions we are bound to take account of the concession made by Mr Adlard (correctly) that subject to withdrawal from the joint enterprise the appellant became a party to the Section 18 offence if he intended to encourage the commission by others of a Section 20 offence by striking an initial blow or blows himself.  Counsel further acknowledged that the appellant’s actions did in fact encourage others to commit this offence and that he was aware that those whom he was encouraging to commit only a Section 20 offence might in fact form the necessary intention to commit and did go on to commit the Section 18 offence.  These concessions were based upon the decision in R V Powell and R v English [1999] AC 1.  

Accordingly we have come to the conclusion that no criticism can be made of the judge’s direction in any respect.  He gave a careful, precise and accurate direction on the principles of law involved.  The judge correctly directed the jury that the prosecution needed to prove that the appellant remained a party to the joint enterprise until he “changed sides”, that “the bare minimum that is required in order to withdraw from a joint enterprise is to communicate to the other members of the joint enterprise the fact that you are withdrawing”.  He pointed out the significance that unless and until the appellant communicated his intention to withdraw the others would be continuing to look to the appellant for support and would be assuming that he wass continuing to play a part.  Hence the need for unequivocal communication of withdrawal.

Moreover we are satisfied that the second passage emphasised and criticised by Counsel is unassailable.  The trial judge’s direction that encouragement once given, cannot be withdrawn once the offence has commenced, is in accordance with principle.  Once the jury found as a fact that the defendant had encouraged the commission of the violence that ensued it was an accurate direction that by the time the appellant had given his encouragement he had played his part and thereafter he could not escape liability by attempting to withdraw at that stage.

On this analysis we are satisfied that none of the criticisms of the summing-up can be justified.

We have no hesitation in reaching the conclusion that there is no basis upon which it  can be said that the verdict of the jury was unsafe.  Indeed it would be a very curious state of our law if a person who had encouraged or incited violence by initiating the attack, could stand aside when he was aware that those who were to continue the violence might form the necessary intention to commit (and did commit) an offence of grievous bodily harm and could thereafter escape all responsibility except for assault occasioning actual bodily from the initial blow.  Commonsense and the Common Law go hand in hand.  

The appeal must be dismissed.