Neutral Citation No: [2003] EWCA Crim 484.
Case No: 2000/3506/W5
 
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION) 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27th February 2003

Before :

LORD JUSTICE KENNEDY
MR JUSTICE McCOMBE
and 
MR  JUSTICE TREACY
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Between :

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	 Robert Joseph McCARTHY		

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Geoffrey Nice QC and Paul Spencer for the appellant
Charles Chruszcz QC and Neil Flewitt for the Crown

Hearing date: 10th February 2003
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JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Lord Justice Kennedy:
1.	On 5th December 1997 in the Crown Court at Preston the appellant was convicted of murder, which was count 1 in the indictment, and of conspiracy to cause grievous bodily harm, which was count 2.   He was sentenced to life imprisonment in respect of count 1 with a recommendation to serve a minimum of 20 years, and to 10 years imprisonment concurrent in respect of count 2.  He now appeals against his conviction on count 1 by leave of the full court.
2.	The only persons charged with murder were the appellant and John Riley.  Those two and nine others were charged in count 2 with conspiracy.  The victim named in relation to both counts was Stephen Cole.  Riley was convicted of both counts, and was sentenced in the same way as the appellant.  Navarro was convicted of count 2 and received a sentence of ten years imprisonment.  Four other co-accused - Blakemore, John Dillon, Paul Dillon and Cook pleaded guilty to a fourth count alleging conspiracy to commit violent disorder.  They received lesser sentences.
3.	The background to the case involved a feud between rival Liverpool doormen.  On 12th May 1996 John Dillon, a doorman at a nightclub called the Continental, was stabbed by a man named Chilton Jenkins.  Stephen Cole had accompanied Jenkins and kicked Dillon as he lay on the ground.  Dillon was sent to hospital, but released after a few days. 
4.	On 18th May a confrontation took place between the doormen of the Continental and those of a nightclub called Cream at which Stephen Cole worked.  There was a protracted stand off at which armed police attended.  Cole again confronted and threatened John Dillon.  Dillon chose not to make any police complaint about either incident. 
5.	On the morning of 19th May police became aware that Cole had made a threat to shoot Dillon that day.  Dillon was offered police protection and a safe house, but he refused, and said that he would deal with it in his own way.  
6.	In the early hours following the police visit to him John Dillon made sixty telephone calls to a large number of different people, including the accused.  The last call was made at about 8 p.m.  By 9 p.m, a formidable number of large men assembled at Gino’s Wine Bar.  They were watched by two uniformed police officers in a marked car who, in the light of the earlier history, anticipated some kind of trouble.  By the time the group left Gino’s there was a convoy of 5 or 6 cars each containing four or five men.  The convoy was followed and the registration number of cars taken.  The convoy went to the Copplehouse public house, and the men swept through without finding the deceased.  They then went to another public house called the Chaser and went through that.  The licensee asked who they were looking for, and was told to mind his own business.  By the time they reached the Chaser the group was 32 strong and the convoy contained at least 11 vehicles.  The police officers who had been following then had to abandon their surveillance because the convoy left their area, and they had been summoned to another call.
7.	Stephen Cole was having a drink with his wife at the Farmer’s Arms public house with friends.  It was crowded.  After 9 p.m. a large group of men rushed into the main lounge and attacked Cole as he sat with his wife.  He sustained thirteen wounds to his skull, torso and legs.  Some of the wounds were at least 5 inches deep and were forcefully administered, penetrating muscle, bone and internal organs.  They were consistent with the use of large knives and machetes.  Despite emergency surgery he died that evening as a result of his injuries.  He had been effectively hacked to death.  
8.	It was the prosecution case that the appellant, Riley and Navarro were party to an agreement to do serious harm to Cole.  The appellant admitted to being in the group from its assembly at Gino’s up to and including when the group entered the Farmer’s Arms.  It was his case that he went there to sort out a private grievance of his own unconnected with the Dillon matter.  He was not a party to the purpose of the mob, and at worse he intended a one to one encounter with the deceased.  The appellant maintained that in the Farmer’s Arms he had been at the back of the group, was pushed to the front and unintentionally fell on top of the deceased.  He did not participate in the attack and was himself stabbed.
9.	Lorraine Cole, the deceased’s wife, was in the Farmer’s Arms public house with her husband when 8 to 10 men entered, streamed up the steps to the raised area, and one of them struck her husband with a baseball bat.  Another had a machete and struck him, then others struck out with knives.  Her husband fell to the ground, and all of the men were joining in stabbing him.  None of them were trying to protect him or to hold others back.  The only person she recognised in the group was Riley who said "that’s for what he done.  That’s for the stabbing.”  Then another man in the group sprayed a canister of CS gas into her face.  She was certain that Riley hacked at the deceased with something, and that others were still having a go, but she did not know the appellant, and was unable to identify any one else in the group.  She did not see any man fall across the deceased then get up again.  
10.	Some weapons were found near to the scene, six knives and a meat cleaver but none were blood stained, possibly because rain had fallen which would have washed away any bloodstains before the weapons were found.  
11.	A witness named Terry Fury had been with the appellant during the afternoon of 19th May, some hours before the incident at the Farmer’s Arms, when Stephen Cole stopped his car and shouted at the appellant threatening him and his family.  The appellant told Fury to forget it, because Stephen Cole was “a bullying bastard”.
12.	After the attack on Stephen Cole the appellant drove to North Wales.  Next day he went to a hospital at Rhyl to receive treatment for a dirty laceration on the back of his right hand.  He said that he had fallen on the beach the night before while drunk.  However he now accepts that the injury was sustained in the alcove at the Farmer’s Arms.  At the trial it was accepted that in that alcove there was found blood from both the appellant and the deceased, although the blood was not mixed.  The car which the appellant used when he travelled in the convoy belonged to his wife, and there were bloodstains on the driver’s seat but the bloodstains were probably his.
13.	On 23rd May 1996, four days after the attack on Stephen Cole, the appellant surrendered to the police.  When interviewed he referred to the incident witnessed by Terry Fury.  He admitted that he had been in the group which assembled at Gino’s and ended up at the Farmer’s Arms.  He said that Cole had been trying to intimidate him, and he wanted to ask him why he was “putting all this shit” on him.  He thought that all that would happen was a slagging off.  As to the numbers, he said the more the merrier.  He had been the victim of an attack in the Farmer’s Arms, and did not realise he was on top of the deceased.  Whilst he lay there he was stabbed and sprayed.  Afterwards he drove to his caravan in Wales.  He disposed of his bloodstained clothing on the beach, and only kept his trainers.  After receiving treatment to his hand he returned to Liverpool.  He knew that the deceased had been involved with  Chilton Jenkins.  He was totally unaware that any of the group had been carrying weapons when they entered the Farmer’s Arms.  He did not know why the deceased had threatened him earlier in the day.  It had upset him.  Then he received a telephone call summoning him to Gino’s to discuss “warning Cole off”.  The intention was to confront him.  It was like whipping up a posse, and over thirty men did go looking for the deceased.
14.	The attack on the deceased had already started by the time he got to the Farmer’s Arms.  He could feel the hatred.  He was in the middle of the group with about 15 others in front.  He was only aware knives were used when he was stabbed.  He was not aware of weapons before that.  Although 3 to 4 people tried to get into his car afterwards, he drove away alone.  He did not play any part in the attack, but could not have stopped it.  He was sorry the deceased had died, but was not prepared to name names.  
15.	He maintained that his grievance was quite separate.  He did not know why the others had attacked the deceased.  No reason was given when they assembled.  He did hear screams of “get him” in the Farmer’s Arms.  Any member of the public would have been terrified.  He denied that he was part of the team but could not explain why he was summoned to join and did so.  He questioned why the police had not broken it up, and did not answer why he did not leave the convoy.  He denied that he was at the front of the attack or was one of the first, and denied seeing any blood.  He said that he had been stupid to think that could deal with his own private grievance when he was with the others.  He had no intention of doing to the deceased what was done to him.  He did not know why he disposed of his clothes.  
16.	The evidence given by the appellant at trial was broadly speaking in line with what he had said when interviewed.  He said that when he went to join the others at Gino’s he did not have a weapon and did not foresee violence.  When the cars left he decided to follow, but he was not part of the convoy.  He was reassured by the police presence that there would be no trouble.  There were 50 to 60 ahead of him at the Farmer’s Arms, and when he got inside he surmised that the deceased was in the alcove.  There were about 20 men there.  The deceased waved his arms and then it was confusing.  Men behind pushed forward and he got tangled up.  He ended up on the floor of the alcove on top of the deceased.  There was an attack but he did not see any weapons.  It was only seconds.  He got up and felt a pain in his hand.  He headed out of the public house, which was dense with people.  He had not struck the deceased, nor did he know any of the attackers.  His hand was badly injured and spurting blood.  He got a towel from his son’s house, went home after midnight, then got more clothing and headed to his caravan in North Wales.  When asked in cross-examination how it came about that he did not see the deceased being hacked, or any of the dreadful injuries he said that he was ‘bemused’ as to why he had missed all that.  He had sneaked home and then gone to North Wales because he did not wish his wife to find out what had happened to him.  He did not know why he lied to the doctor in Wales.  
17.	When Riley gave evidence in his own defence he said that he saw the deceased on the floor with people attacking him.  The scene was a confusing one, and although he knew the appellant he had not seen him there that night.  He did not see any one lying across the deceased then get up.  
Grounds of Appeal
18.	The sole point now taken in this appeal by Mr Nice QC, who did not appear at the trial, relates to the judge’s direction in relation to joint enterprise.  In a nutshell what is said is that the judge failed to have regard to the decision of the House of Lords in R v Powell and English [1999] 1 AC 1, in which judgment was delivered on 30th October 1997, about 5 weeks before the summing up was delivered in the present case.  What the jury needed to be told was that in order to convict they must be sure not only that the appellant was present intending to cause at least grievous bodily harm to Stephen Cole, and willing to assist others to do so, but also that he was aware that others had bladed weapons and agreed to their use.  Because it was the use of bladed weapons which caused Cole’s death.  
Law
19.	In the case of Powell three men, of whom Powell was one, called at the door of a cannabis dealer.  When he opened the door one of the men shot him and he died.  At the trial Powell said he was only there to buy cannabis.  His co-accused did not give evidence, but it was contended on his behalf that he was unaware of the presence of the gun until it was produced by Powell.  Both were convicted and both appealed.  English was fifteen years of age when he and his co-accused Weddle were charged with murdering a police sergeant.  They had attacked the sergeant with wooden posts, but it was a knife with which the fatal injuries were inflicted.  English contended that he had fled the scene before his co-accused produced the knife, but he was convicted.  Thus the facts in both Powell  and English were very different from those in the case with which we are concerned.  It was in relation to those facts that Lord Hutton said at 27E -
“It is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.”
But what Mr Nice relies on is the situation which can arise if there is or may have been a departure from the common design.  A possibility  which clearly arose in English.  As to that Lord Hutton said at 30C that the direction given by the trial judge was defective because -
“He did not qualify his direction of foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle’s part which English did not foresee as a possibility, then English should not be convicted of murder.”
In the Northern Ireland case of Gamble [1989] NI 268 two members of a gang of four which agreed to ‘kneecap’ their victim were held to be not guilty of murder when the other members of the gang caused death by cutting the victim’s throat with a knife.  As to that Lord Hutton, said in Powell at 29H -
“In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder where, in an action unforeseen by the secondary party, another party to the criminal enterprise kills the victim by cutting his throat with a knife.”
20.	In Uddin [1989] 1 Cr App R 319, decided some time after the trial judge gave his directions to the jury in the present case, this court considered a situation where a man was attacked by a group of men armed with sticks or bars.  One of the assailants produced a flick-knife, and inflicted a fatal stab wound to the head of the deceased.  The appellant was not the user of the knife, and Beldam LJ at 328F set out seven principles as to the liability of secondary parties.  Those principles were helpfully reduced to four by counsel for the Crown in Bentley [2001] 1 Cr App R 307 and those four principles were adopted by the court at 327.  They read -
“(1) Where two parties embark on a joint enterprise to commit a crime and one foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise.
(2) Where the principal kills with a deadly weapon, which the secondary party did not know that he had and of which he therefore did not foresee use by the principal, the secondary party is not guilty of murder.  
(3) If the weapon used by the primary party is different to but as dangerous as the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill or vice versa.
(4) The secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible. ”
To those four principles it is appropriate in the circumstances of this case to add the fifth principle set out at 329C in Uddin, namely -
“If in the course of the concerted attack a weapon is produced by one of the participants, and the others, knowing that he has it in circumstances where he may use it in the course of the attack, participate or continue to participate in the attack, they will be guilty of murder if the weapon is used to inflict a fatal wound.”
Our attention was also invited to the decision of this court in Messam 19th March 2001, as a useful application of the principle set out in the earlier cases.
Summing up and submissions.
21.	With that law in mind we turn to look at the issues which remained to be considered in this case when the judge came to sum up, and how he dealt with them.  The basic facts were not really in dispute.  The posse had gathered at Gino’s, and had gone in convoy, growing and searching two public houses on the way, until it arrived at the Farmer’s Arms.  There a large number of men streamed in and attacked Stephen Cole in the alcove with bladed weapons and a baseball bat, with such ferocity that he was hacked to death.  Neither of the two men accused of murder sought to deny their presence in the alcove.  It would have been difficult for them to do so because John Riley was known to and recognised by Stephen Cole’s wife, and blood which the appellant accepted was his was found in the alcove, but basically both men contended that they were not part of the armed and angry posse.  Their intentions were peaceful.  Riley claimed that in the alcove he disarmed one man with a knife.  The appellant claimed that because of the threats made to him by Stephen Cole that afternoon he wanted to have a word with Stephen Cole, and joined the others (who unlike him were all doormen) at Gino’s for that special purpose.  He was not in the convoy, although the police officers noted that his was the second last car, and somehow when he got into the Farmer’s Arms he got pushed to the front and fell across someone who he ‘surmised’ to be Stephen Cole.  But he did not know that Cole was injured, he never saw any weapons and he recognised nobody.  When he left he thought he was the only person injured, yet when he left he delayed going home and having collected clothing drove to his caravan in North Wales where he disposed of the clothing he had been wearing and which he believed to be stained only with his own blood.
22.	So in relation to count 1 in the indictment the judge, at 23F of the transcript, directed the jury -
“Anybody who participated in the attack on Stephen Cole intending at that time he should suffer at least some serious bodily harm is guilty of his murder.  You must judge a man’s intentions by all the surrounding circumstances of the case as you find them to be.  Most especially, you may think in this case, by what his attackers did.  They armed themselves with a variety of weapons and set about him with such ferocity that nobody had sought to suggest in this case they did other than to hack him to death.  It is, therefore, common ground before you that whoever participated in that attack must, at the very least, have intended to cause him dreadful injury if not his death.”
Pausing there, it seems to us that what the judge said was right, taking account of what was said in Powell and English, because anyone who did participate in the attack with weapons must have intended at least very serious harm.  Mr Nice was critical of the first sentence which we have quoted, as being too simple, but it does have to be read in the context of the paragraph as a whole.  The judge then continued at 24F -
“It is, of course, not possible for the prosecution to prove whose hands wielded what implements and with what effect on the deceased but nor do they have to do so, .. the law recognises what is called a joint venture.  If two or more men were physically present pursuant to a plan to attack the deceased with weapons intending thereby to kill or do grievous bodily harm, really serious bodily harm, and did so attack him with that intention, it matters not whose hand inflicted what wounds.  All present and physically involving themselves in an attack of that character are equally accountable in our law for its consequences.  And thus equally guilty of murder.  The hand of one is the hand of all.”
23.	Again, as it seems to us, that direction is difficult to criticise.  In order to be guilty the defendant had to be ‘present’ pursuant to a plan to attack the deceased ‘with weapons’ and with the requisite intention.  If, as he contended, the appellant was not a party to any plan to attack the deceased then of course he could not be found guilty.  Even if he were party to a plan to attack the deceased but was unaware of the presence of weapons he still could not be convicted because, on the judge’s direction, he could only be convicted if he was present pursuant to a plan to attack the deceased with weapons, and on the facts of this case it was clear that it was the bladed weapons to which the judge was referring.  The evidence in relation to the baseball bat was peripheral, and the CS gas canister was only used on Lorraine Cole.  It is true that by saying that ‘all present and physically involving themselves in an attack of that character are equally accountable’ the judge may have created the impression that presence alone was not enough, so it is not surprising, and indeed very much to the jury’s credit, that after retiring they asked this question -
“Please confirm our understanding that with respect to count 1 participation means either an actual physical act on the victim or being present with the intent of causing serious harm without actually committing a physical act.”
What it is important to recognise is that the question is not addressed to the state of mind of the defendant in relation to the overall plan, simply to the question of the need for physical participation as well as presence when the attack took place, and, after consulting counsel, the judge replied to the jury’s question -
“If a man agrees with others that serious harm should be done to a victim and is present with those others pursuant to that agreement when the victim is attacked, intending himself to play some part in that attack in furtherence of that joint purpose, it matters not that for whatever reason he is in the event himself physically unable to lay a hand upon the victim.  If he is present with that state of mind I have just defined, then the hand of one is the hand of all.”
It is true that when in that answer the judge used the word ‘victim’ for the first time he could have added ‘with weapons’ or ‘with bladed weapons’ but the omission does not seem to us to be significant because of what had already been said in the main body of the summing up in the passages to which we have referred.  
24.	Furthermore, as Mr Chruszcz QC for the Crown pointed out, the jury convicted the appellant on count 2, in relation to which no complaint is made, although the judge did invite the jury to treat that count as an alternative.  That conviction shows that the jury rejected the appellant’s primary defence, namely that he was not a party to any plan to cause serious harm to the deceased.  On the facts of this case it was not conceivable that he was a party to such a plan but did not how it was to be executed.  It is one thing for one of two or three assailants suddenly to produce and use a knife or a gun which the others may not know that he possesses (English) or for two out of four assailants to attack an intended victim in a way that their fellow attackers never contemplated (Gamble) but in this case it was not one or two of the attackers who are armed.  There were many who were armed.  When dealing with the weapons recovered the judge said to the jury at 27E -
“Were all those weapons, do you conclude, effectively concealed until the very moment when Stephen Cole was attacked in the cubicle? Or was their possession, must their possession have been obvious to all present before they entered into the Farmer’s Arms?  Questions of that kind and the answers to them are plainly relevant when you consider (a) whether there was an agreement and if so whether it is proved that it was an agreement to do Stephen Cole some serious injury.”
So even in relation to count 2 the jury was invited to consider the conspiracy as a conspiracy involving the use of bladed weapons, and that is why the judge said in his initial directions that it was ‘common ground’ that whoever participated in ‘that attack’ - in context the attack with bladed weapons - had the necessary intent for murder.  The appellant asserted that he did not participate, he somehow got projected to the front and fell across the body of the deceased without intending to injure him and without seeing or knowing in any way that the deceased was being attacked by others.  That account was plainly rejected by the jury.  It was an account to which neither Lorraine Cole nor John Riley leant any support, and which no jury was likely to accept, so even if when he entered the Farmer’s Arms the appellant was unaware that his fellow conspirators were armed with potentially lethal weapons and even up to that time he had seen no weapons (a possibility which, as Mr Nice reminded us, is supported by the evidence of the doorman at the Farmer’s Arms who said he saw no weapons) the undeniable fact is that the appellant was so close to the action as to be in contact with the deceased when weapons were produced and used, yet the attack continued and he did nothing to desist.
Conclusion
25.	We therefore conclude that the directions given were appropriate, and dealt adequately with what Mr Nice referred to as the appellant’s second line of defence, namely that he was unaware that any body else was armed.  Furthermore, the facts were such that even if the direction had been given in the precise terms advocated by Mr Nice the result would have been the same.  The conviction therefore remains safe, and the appeal against conviction is dismissed.