Neutral Citation Number: [2012] EWCA Crim 2008
Case No: 201201361 D5 & 201201325 D5

IN THE COURT OF APPEAL CRIMINAL DIVISION
(COURT MARTIAL APPEAL COURT)
ON APPEAL FROM THE COURT MARTIAL
SITTING AT SENNELAGER
(ASSISTANT JUDGE ADVOCATE LARGE)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/10/2012
Before :

LADY JUSTICE RAFFERTY DBE
MR JUSTICE IRWIN
and
MRS JUSTICE NICOLA DAVIES DBE
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Between :

	Trooper Danny MULGREW and Trooper David RICHARDS	Appellants	
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	Regina	Respondent	

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Colonel Whitwham (instructed by Service Prosecuting Authority) for the Respondent
David Rhodes (instructed by Armed Forces Criminal Legal Aid Authority ) for the Appellant Danny MULGREW
Peter Glenser (instructed by Armed Forces Criminal Legal Aid Authority) for the Appellant David RICHARDS 

Hearing date: 22nd August 2012
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Judgment

Lady Justice Rafferty: 
1.	On 24th February 2012 at a Court-Martial at British Forces Germany Military Court Centre, the applicants were convicted of causing grievous bodily harm with intent and of actual bodily harm. Sentencing has been adjourned pending the outcome of these applications. They seek leave to appeal against conviction following a referral by the Registrar on the recommendation of the trial judge, Assistant Judge Advocate General Alan Large. We grant leave.
2.	Both defendants were charged with three counts on a joint enterprise basis as follows:
i)	Count 1:  Causing Sergeant (Sgt) Deane Wallace grievous bodily harm with intent (S18 OAPA 1861).
ii)	Count 2 (alternative): inflicting on Sergeant (Sgt) Deane Wallace grievous bodily harm (s.20 OAPA 1861)
iii)	Count 3 assault on Sergeant (Sgt) Stephen McGuiness, occasioning him actual bodily harm (s.47 OAPA 1861) 
3.	The two complainants, Sgt Deane Wallace and Sgt Stephen McGuiness, together with a group of soldiers including Private (Pte) Anthony John, had for several hours been out drinking at a succession of bars, culminating at Mango’s. There they encountered Mulgrew and Richards, socialising with another group, including Mrs Richards. The two groups were not known to each other.
4.	The Crown’s case began with a coming together of the groups earlier in the evening, around 11pm. McGuiness’s group had been playing on a boxing punch-ball game, achieving feeble scores. Richards (stripy jumper) and Mulgrew (checked shirt) then played, showing off their supremacy, flexing their muscles towards the complainants’ group, with Richards saying “that’s how you fucking punch”. McGuiness’s group did not react and there was no violence at that stage. Neither Wallace nor John mentioned this boxing machine episode. (The defence case was that it was an invention by  McGuiness to provide a trigger for events to come.)
5.	There had been an incident in the bar area (“the Fijian incident”) involving pushing and shoving between Wallace and Mulgrew. A Fijian soldier had made advances to Mrs Richards. Richards remonstrated and Wallace involved himself, aggravating the situation. Mulgrew pushed Wallace away, by his face, witnessed by a number of bar staff and by John. The bouncers intervened and separated the parties.
6.	The Crown’s case continued that Wallace and McGuiness went downstairs together to the lavatories. McGuiness said he and his friend stood at opposite ends of the urinals. The next he knew was Wallace on the floor and Mulgrew making to kick him in the head. McGuiness pushed him away, once, with open palms. Richards entered the lavatories and punched McGuiness once on the nose, causing a fracture (Count 3). McGuiness fell back, blood in his eyes. He was aware of one male (he thought Richards,) making to leave whilst Mulgrew stamped on the head of Wallace unconscious on the ground, causing a fracture to skull and eye socket (Count 1 or 2).
7.	Private McDiarmid hiding in the cubicles heard three voices shouting, two aggressive the third trying to calm things. The aggressives had a Northern accent, [Wallace and McGuiness are Geordies]. Before any violence there was a lot of shouting, which escalated. He heard slapping, as though someone had been hit, and a struggle. He looked out briefly and saw three males: the first unconscious on the ground, the second with a bloodied nose, and the third whom he could not describe stamping on the head of the first. McDiarmid a trained medic, attended Wallace. He then noticed McGuiness in shock and pale saying, “Dean, Dean.” McGuiness had a big gash and a broken nose. The whole incident lasted no more than a minute.
8.	A number of members of staff gave evidence as to the initial encounter in the bar area and their discovery of the aftermath in the lavatories. The cumulative effect was that Wallace had been the more aggressive and more drunk of the two involved in the earlier altercation in the bar. Later, the alarm sounded and bouncers rushed down to the lavatories, where they found McGuiness and Wallace, and Richards, detained in the corridor outside. Mulgrew was later arrested in the bar area.
9.	The bouncers escorted the two defendants out of the bar area and handed them over to the Royal Military Police (RMP). On arrest both defendants denied any involvement. Both were interviewed twice, in February and in July 2011. In his first interview, Mulgrew gave a prepared statement in which he claimed to have witnessed a fight in the lavatories, his only involvement to put himself between the parties in an attempt to break it up. In his first interview, Richards explained he went down to the lavatories first, Mulgrew came in afterwards and they were attacked by three males. Richards struck McGuiness once on the nose before leaving. Therefore though Richards did not see it Mulgrew must have stamped on Wallace. 
10.	In his second interview, Mulgrew admitted his first account had been false. He then described an altercation – the Fijian incident, Richards’s remonstration, Wallace, very drunk, involved himself making matters worse. Mulgrew intervened, grabbing Wallace by the face and pushing him away. The bouncers separated the parties. Later he went alone to the lavatories followed and accosted by Wallace and McGuiness. Struck on the back of the head by McGuiness, Mulgrew punched him on the nose in self-defence. He admitted “I think I hit him too many times to be honest with you...” but “they had followed me down to the toilets... it was two on one... I was backed in to a corner, I thought I was fighting for my life...” As he fought with McGuiness, Richards entered and twice punched Wallace who went down to the floor. As Mulgrew turned he saw Richards stamp on Wallace’s head. 
11.	In his second interview, Richards maintained his account from the first, consistent with his evidence. He lied when he claimed that after the Fijian incident half an hour of calm ensued. That is, he might have pushed McGuiness but no more. He followed no one to the lavatories and they were empty when he went in. Men entered and McGuiness said, to Richards “Let’s have it in here” and Richards, fearful of three to one, said he wanted no trouble. McGuiness swung at him and in self-defence he punched him on the nose, McGuiness went down, and Richards left.
12.	The Crown opened that the defendants set out to take revenge for the Fijian incident. In a joint enterprise they followed McGuiness and Wallace to the lavatories so as to attack them. Mulgrew stamped on the head of Wallace. Richards attacked McGuiness and broke his nose. Both were jointly liable for the injuries to each complainant by virtue of their joint enterprise to attack from the outset. Thus, whilst the defendants blamed each other for the stamping it mattered not who had done it.
THE DEFENCE CASE
13.	Mulgrew said he had intervened when Wallace, drunk aggressive and humiliated, involved himself counterproductively in the Fijian incident. Lance Corporal (LCpl) Williams, in Mulgrew’s and Richards’ group but not involved in any altercation, told the RMP he had seen Wallace, pushed away by Mulgrew, gesturing and staring at Mulgrew. A short time later, Mulgrew went alone to the lavatories, whereupon Wallace and some of his group followed. Seeing this, Richards went down to check Mulgrew’s welfare. 
14.	Mulgrew told the court that, attacked in the lavatories, he punched and grappled with McGuiness finally restraining him in a headlock. Richards came in and punched Wallace. Once McGuiness was no longer a threat, Mulgrew turned to go and saw Richards make to stamp on Wallace. Wallace, McGuiness and John had all lied about events in the bar because they knew the truth – the humiliation of Wallace – gave them the motive for revenge. There was evidence of Wallace first telling McGuiness that he was ‘going to the lavatories’, then going to a different part of the bar and telling John this also. The defence case was that Wallace was ‘recruiting’ his friends to the revenge attack upon Mulgrew. 
15.	McGuiness agreed that in interview as a suspect for the service offence of fighting he had conceded he could not see the stamping because he had blood in both eyes. However the stamper was “definitely not wearing trainers” because white trainers would have been distinctive. Mulgrew had worn trainers predominantly white/grey with distinctive fluorescent orange straps on them. Richards wore dark brown leather shoes.
16.	Mulgrew’s case was denial of any assault on Wallace – that culprit was Richards. McGuiness was mistaken that it was checked shirt man (Mulgrew) or lying because their intended victim of revenge was himself. He Mulgrew had broken McGuiness’s nose and knew McGuiness and Wallace had been the aggressors. His case in relation to McGuiness was self-defence.
THE SCIENCE
17.	No blood or DNA relating to Wallace was on any of Mulgrew’s clothing or footwear. The leather shoes worn by Richards were never submitted for detailed examination.
18.	Significantly for Mulgrew, blood on his clothing was not Wallace’s but McGuiness’s. The Crown’s case was that McGuiness had been punched once only by Richards. McGuiness confirmed that his only contact with Mulgrew was one push with an open palm. Yet there was heavy contact bloodstaining showing McGuiness’s blood on Mulgrew’s left sleeve, breast pocket, back of shirt, hip area of his jeans, and drips were on his left trainer. 
19.	The obvious inference from this was that Mulgrew held McGuiness in a headlock. Were that so, McGuiness had lied about the extent of his involvement in the fight and his lack of contact with Mulgrew. He would at the very least have been on his feet and arguably advancing, prompting restraint in a headlock. More importantly, whilst Mulgrew held a headlocked McGuiness, he could not have been stamping on Wallace.
20.	Counsel Mr Glenser who so ably assisted us for Richards did not appear below. He expressed astonishment that the leather shoes were not in detail examined and that no unpicking, by the defence, was contemplated let alone done of the inferences to be drawn from the bloodstaining. We sympathised, on both fronts.
DIRECTIONS OF LAW
21.	At the close of the evidence, the Assistant Judge Advocate General (AJAG) asked the Crown how it put its case and particularly whether it maintained that this was a joint enterprise from the outset or whether there were an alternative of excessive self-defence. The Crown nailed its colours to the mast of McGuiness’s evidence. Its case remained that this was a joint enterprise attack from the outset – defendants following complainants to the lavatories to exact revenge. However, if the Board were not satisfied that there was such a joint enterprise, then  – as per the evidence of McGuiness – Mulgrew stamped on Wallace’s head. Therefore, absent joint enterprise the Crown would not seek a conviction of Richards on Counts 1 or 2. The only issue then would be whether the Board were sure Mulgrew stamped on Wallace (with the requisite intent). Similarly, following the account of McGuiness - who claimed to have been struck only once by Richards (no contact with Mulgrew) - if the Board were not satisfied of an ab initio joint enterprise to attack, the Crown could not say one punch by Richards was not self-defence and thus would not seek a conviction against either defendant on Count 3.
22.	In light of the Crown’s stance, the AJAG decided there was no need to direct the Board on self-defence. He told the Board it first had to decide whether it were satisfied there was a joint enterprise to follow McGuiness and Wallace to the lavatories and attack them. If it were sure, self-defence did not arise.  If it were not sure of a joint enterprise, the case proceeded against Mulgrew alone. The only issue would then be whether he were the stamper on Wallace. As to Count 3, absent joint enterprise the Crown conceded it could not rebut self-defence and did not seek a conviction against either defendant.
23.	For Mulgrew Mr Rhodes accepted that as to Counts 1 or 2 his case was not self-defence but simply that he did not assault Wallace at all. As to Count 3, his case was self-defence albeit the Crown’s case was that Mulgrew never touched McGuiness – in spite of the science which powerfully suggested the contrary.
24.	Mr Rhodes submitted that the evidence painted the complainants as aggressors and Richards as the stamper. He twice expressed concern about the approach taken by the Crown – astute no doubt to the danger that the Board would want someone to answer for the stamping. Absent joint enterprise, it could not convict Richards alone so might convict Mulgrew. 
25.	The AJAG’s written Route to Verdict left four options:
i)	Joint enterprise attack on Wallace – both defendants guilty of Counts 1 or 2, depending on intent;
ii)	Joint enterprise attack on McGuiness – both defendants guilty of Count 3, ABH;
iii)	No joint enterprise attack on Wallace – Mulgrew guilty (if the stamper) or not guilty of Counts 1 or 2. Richards not guilty of Counts 1 and 2, and; 
iv)	No joint enterprise attack on McGuinness – both defendants not guilty of Count 3.
26.	Directing the Board the AJAG said:
“As the case now stands self defence is not an issue that you need to consider. Let me explain why. If you were sure that there were a joint enterprise to attack Wallace charges one and two or McGuiness charge three, then clearly neither defendant was defending themselves (sic) and self defence simply does not arise. They are the aggressors, they are the attackers, self defence does not apply. If you are not sure there was a joint enterprise then ………you are simply now considering the first and second charges against Mulgrew alone. The case against Mulgrew is that he stamped on the head of Wallace as he [W] lay on the ground causing really serious harm. If you are sure that he did that then again there is no room for self defence.”
27.	Shortly after this direction, clear, unimpugnable and unimpugned, Mr Rhodes for Mulgrew invited the AJAG further to distil their effect into “If there is no joint enterprise to follow McGuiness and Wallace to the lavatories the single issue becomes whether the Board be sure Mulgrew is the stamper”. The AJAG did so.
28.	Two points are said to have arisen from the directions and their echo in the Route to Verdict. First, the term joint enterprise was used almost interchangeably with the doctrine of self-defence in that it sought to convey the same issue. Secondly, told that stamping on the head of an unconscious man could not be self-defence, if not sure of a joint enterprise ab initio but sure Richards was the stamper, the Board had no route by which to convict him alone, independently of Mulgrew.
THE BOARD’S QUESTION
29.	The Board once in retirement sent a note: “Can we find each defendant guilty or innocent of each charge independently?”
30.	The topic appeared to parties to be that, absent joint enterprise, the Board could not convict Richards alone. The AJAG it will be remembered had invited dialogue upon how, at the conclusion of the evidence, the Crown put its case and now, entirely properly, did no more than repeat directions already given.  The effect was that if sure Richards not Mulgrew were the stamper, the only route to conviction of Richards was the finding of a joint enterprise formed in the lavatories. 

THE FINDINGS 
31.	Courts Martial unlike jury trials see the Board sit with the Judge as part of the sentencing exercise. When the AJAG realised the factual basis of the verdict he wrote “Note by Trial Judge – Basis of Verdict” in which he set out the basis as follows:

•	Wallace and McGuiness followed the Defendants into the lavatories, so there was no joint enterprise ab initio.
•	The Defendants got the better of McGuiness and Wallace in the lavatories.
•	The Defendants then formed a joint enterprise to attack.
•	Mulgrew (not Richards as the Crown had suggested) punched McGuiness’s nose. Richards was jointly liable.
•	Richards (not Mulgrew as the Crown had suggested) stamped on Wallace’s head. Mulgrew was jointly liable.
32.	The AJAG at a hearing explained his view that the verdicts were potentially flawed and unsafe. At the very least, they did not follow the approach in the Route to Verdict. Had he anticipated the Board’s approach he would have directed it on self-defence and the interaction between self-defence and joint enterprise. He adjourned sentence pending an expeditious appeal to the Court Martial Appeal Court and released Mulgrew from custody.
33.	It is convenient to treat the Grounds of Appeal as in common to each. The first is that the verdicts are perverse, based on a finding that the joint enterprise to attack was formed whilst the defendants were defending themselves. The Board found the complainants the aggressors, or at least the initial aggressors, following the Defendants to the lavatories. Once not satisfied of a joint enterprise from the outset, Mulgrew’s punch of McGuiness (as the Board found) must have been in self-defence and cannot have been simultaneously a joint enterprise with Richards to cause really serious injury to Wallace. If Mulgrew’s repeated blows to McGuiness went beyond self-defence, he might be guilty of assault occasioning actual bodily harm against McGuiness but not of grievous bodily harm with intent against Wallace, since the Board found Richards did that physical damage. Richards  was vulnerable to the suggestion that stamping is outside self-defence so Mulgrew could also have relied on Richards’ going outside the terms of any joint enterprise.
34.	Bolstering this Ground is the complaint that the Board failed to follow the Route to Verdict. We can deal shortly with it. That the verdict did not accord with the Route, agreed with counsel, is neither here nor there.  So long as the directions of law are unimpugnable, the Route is no more than an aid.  There is nothing in that aspect of the submissions.
35.	The Crown decided to nail its colours to the account of Sgt McGuiness – that he was struck once only on the nose by Richards and did not struggle with Mulgrew; the stamper – despite science pointing away from this account. McGuiness’s blood on Mulgrew’s shirt, in a pattern consistent with Mulgrew holding McGuiness in a headlock, was significant support for McGuiness/Mulgrew violence. Wallace’s blood was not on Mulgrew’s trainers. McGuiness described the stamper’s footwear as definitely not trainers. Richards wore brown leather shoes. They had not been examined. Richards was the last defendant to leave the lavatories.
36.	Ground 2 is the absence of a direction on self-defence. The conviction of Mulgrew on Count 3 (assault occasioning actual bodily harm on McGuiness) is unsafe because the Board was not directed on self-defence even though that was Mulgrew’s case. 
37.	In evidence, Mulgrew explained his comment in interview that he may have hit McGuiness “too many times” as made with the benefit of hindsight. At the time, he had been followed to the lavatories, it was two against one and he was backed into a corner. Thus honestly believed the force he used was reasonable. The verdict of the Board is unsafe absent a direction on self-defence which would have gone to whether that belief were honest and the force necessary and reasonable in the circumstances. Additionally the Board had no direction to assist with its approach to Mulgrew’s state of mind. The AJAG’s Note reads:-  
“... I would have directed the Board that they would have to be sure that the Actual Bodily Harm (the broken nose) was caused whilst the defendant was using unreasonable force, rather than when he was or may have been lawfully defending himself in any subsequent violence towards McGuiness. On the available evidence, I consider it would have been very difficult for the Board to rule out the possibility that the broken nose was caused by the first punch which, on their finding, must have been in self-defence.”
38.	Ground 3 is the absence of a direction on the interaction of self defence and joint enterprise. The Board found that after initial aggression by the complainants, the Defendants got the better of them then formed a joint enterprise to attack. The AJAG’s Note reads:
“In that scenario the Board required direction that Mulgrew could not have been part of a joint enterprise to attack anyone whilst he was lawfully acting in self-defence towards McGuiness. Neither could Richards, who was involved with Wallace, be part of a joint enterprise to attack McGuiness whilst Mulgrew was or may have been acting lawfully towards him...”
39.	In our judgment all three Grounds are intertwined. We were eager to understand why the Crown, at the conclusion of the evidence, and after dialogue with the AJAG concentrating minds upon how the case was then put, pinned its colours so firmly to the mast on the basis as Opened, that this had been a joint enterprise ab initio, the defendants following the complainants to the lavatories for purposes of revenge. The explanation was as follows:  If the Board were not sure of such joint enterprise, then the Crown relied on McGuiness’s evidence that Mulgrew stamped on Wallace’s head.  Consequently, absent a finding of joint enterprise, the Crown did not seek a conviction against Richards on Count 1, S.18, or its alternative S.20, Count 2.  The sole issue was whether the Board were sure Mulgrew, with the requisite intent, stamped on Wallace.  Also in reliance on McGuiness, (struck once by Richards, no contact with Mulgrew) absent a finding of joint enterprise ab initio, the Crown did not suggest that one punch by Richards was not in lawful self-defence.  Consequently it would not seek a conviction for assault occasioning actual bodily harm against either.
40.	This approach remained loyal to the Opening and to the cast of the case throughout.
41.	The Board’s finding of facts clearly surprised the AJAG.  What plainly concerned him was that whereas the case had been put that victims went first and revenge-seeking defendants second into the lavatories, the Board found the victims had followed the defendants. It follows that no joint enterprise plan to assault could by then have been formed – put simply, the parties were in the wrong order for that to make sense.  
42.	Without more, we suggest, self-defence immediately arose.  In fact there was more.  The Board found that in the lavatories the defendants got the better of the victims, and then (our emphasis) formed a joint enterprise attack.
43.	Though this might be surprising given the way the Crown put its case, it was open to the Board to reach a conclusion for which a party did not argue so long as that conclusion was based on evidence. Consequently, were we troubled solely by the departure of the Board from the way the Crown put its case we might not have been persuaded that the convictions were unsafe.
44.	However the matter does not end there. These defendants faced their Court Martial, from first entering the room until the Board retired to consider its verdict, confident of the case each answered. Mulgrew throughout contested the suggestion that it was he who had broken McGuiness’s nose and Richards had stamped on Wallace. He answered the suggestion he had joined in a plan before descending to the lavatories. Richards throughout contested the suggestion he had stamped on Wallace and that Mulgrew had punched McGuiness and he, Richards, had joined in a plan before descending to the lavatories.
45.	It is convenient to consider the notional trial each would have faced had the findings of fact by the Board played a part during the hearing. Each defendant had not formed a plan with the other before descent to the lavatories. As each left the bar he was the notional aggrieved or innocent party. Once in the lavatories when turbulence erupted each became the aggressor and attacker, the former aggressors now the aggrieved or innocent parties. Not only that, but Mulgrew was not the man who punched McGuiness and Richards was not the man who stamped on Wallace. Richards punched, Mulgrew stamped.
46.	We have tried to imagine the difference in the conduct of the notional trial. Richards, it will be remembered, wore brown leather shoes, not examined. Facing the allegation he did, that he punched McGuiness, there might be some rationale behind his defence team’s failure to trigger examination. Richards was, after all, not the stamper. Had he known he was at risk of being found the stamper on Wallace, the colours in his defence palette, we are confident, would have been deeper. Those shoes would have been examined. He stood the chance of underlining that there was on them none of Wallace’s blood. His interest in the disposition of McGuiness’s blood on Mulgrew would have been profound. He might have sought to call an expert in blood distribution.
47.	Mulgrew, at risk of being found to have stamped on Wallace, could afford to deploy the blood from McGuiness found on him to underline his defence by emphasising that it was not that of Wallace. To an extent he did not need to engage over much with the science. Had he known he was at risk of being found to be the puncher of McGuiness his interest in that blood and its disposition would we suggest have been far sharper. He too might have sought to call an expert in blood distribution.
48.	Additionally, the AJAG’s decision not to direct on self-defence was, if not welcome, at least explicable. The difficulty arising from the findings of the Board is that the evidence for joint enterprise must have arisen whilst parties were in the lavatories. That behaviour must have been after the reversal of roles, defendants initially aggrieved but now aggressors. It follows that any such aggression came after self-defensive behaviour as advanced by the defendants.
49.	Neither had the protection of a direction telling the Board how to approach what each did and said. We were for some time troubled by whether a stamping on the head of man down could in any circumstances amount to lawful self-defence but we conclude that such a decision on our part would be to put the cart before the horse. Most importantly, each defendant from his different standpoint may have been lulled into a sense of false security on the topic of Richards’s shoes. Had Mulgrew foreseen the factual findings, he surely would have wanted them examined so as, if possible, to demonstrate that Wallace’s blood was indeed upon them and that his was not. Richards, even more importantly, had he foreseen his conviction as the stamper on Wallace, lost nothing by essaying their examination. If there were none of Wallace’s blood on them Richards was far better off. If there were Wallace’s blood on them he could at least address disposition and at the same time direct his firepower to the McGuiness blood to try and undo the damage it did him and to reduce the protection it afforded Mulgrew.
50.	We share the anxieties of the AJAG who, it would be well to remember, had conduct of the trial and a “feel” for the justice of the case. If asked as he walked into the court “What case are you answering?” each would have said “We are supposed to have planned, in the bar, to follow them down to the lavatories and take revenge for an insult. When we got there, I, Mulgrew stamped on Wallace and I, Richards, punched McGuiness’s nose”. Post conviction, asked “What case did you answer once the Board had retired?” the answer would have been “We were insulted upstairs and simply followed the complainants to the lavatories. In them, we planned and executed a joint attack on them. I, Mulgrew, despite having McGuiness’s blood on me in a headlock-shaped disposition, did not punch him. Despite having none of Wallace’s blood on me I stamped on his head. I, Richards, despite having none of McGuinness’s blood provably on me, punched him. Despite wearing shoes, which were not proved to have Wallace’s blood on them, I stamped on his head”.
51.	None of these convictions is safe they will be quashed.