Thursday 10th November 1994
LORD JUSTICE HOBHOUSE: The judgment I am about to read is the judgment of the Court.
APPEALS AGAINST CONVICTION
In R v Reid, 62 Cr App R 109 at 112, Lawton LJ delivering the judgment of the Court said:
"When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use the weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter."
It has been argued on behalf of the appellants in this case, with the support of the authors of Smith & Hogan Criminal Law, 7th edition, at page 146, that this statement of the law cannot stand with other decisions of the Court of Appeal and should not be regarded as good law.
The appellants Barry Schofield and Heather Stewart stood their trial in the Crown Court at Manchester before Morland J and a jury. The indictment had originally charged three defendants, Wayne Lambert, Barry Schofield and Heather Stewart with the murder of Mr Dada. The second count had charged those three defendants with the robbery of money from Mr Dada. Before the trial Wayne Lambert pleaded guilty to both counts and Barry Schofield and Heather Stewart pleaded guilty to the robbery count. Accordingly Barry Schofield and Heather Stewart only stood trial upon the murder count. The jury acquitted them of murder but found them guilty of manslaughter. With the leave of the single judge they appeal against their convictions of manslaughter.
On the evening of Thursday 23rd January 1992, Mr Dada, a 60 year old Pakistani, was in his shop, the Popular Delicatessen, in Wilmslow Road, Withington. During the early evening two young women, Dawn Rothwell and Heather Stewart, went into the shop. They bought some cigarettes. Whilst there, Heather Stewart noticed Mr Dada removing some money from the till and putting it into his pocket. After they had left the shop and were walking along the road they met Wayne Lambert who was known to Heather Stewart. He was driving a car and Barry Schofield was with him. Heather Stewart told them about what she had seen in the shop and suggested that they should rob Mr Dada of the cash which they had seen him put in his pocket. They agreed. The four of them then drove back to near the shop, where Wayne Lambert, Barry Schofield and Heather Stewart got out. Dawn Rothwell stayed in the car and did not take any further part. There was evidence that the trio took out of the car a scaffolding bar and a knife. Wayne Lambert put on a balaclava and a long coat. Whilst Barry Schofield kept watch outside, the other two went into the shop. On the evidence that the jury must have accepted, Wayne Lambert had the bar and Heather Stewart had the knife. The upshot was that Mr Dada was viciously beaten with the bar and seriously injured and a relatively small amount of cash was stolen from him. He died a few days later in hospital as a result of the injuries he had received; these included four skull fractures. The money taken from Mr Dada was less than £100 cash. After the incident the three ran off to the car where the money was divided up.
Both Heather Stewart and Barry Schofield had answered questions at interview but only Heather Stewart gave evidence at the trial. Barry Schofield had admitted knowledge of the weapons with which Wayne Lambert and Heather Stewart were armed. Heather Stewart said she did not know but the jury must have disbelieved her. They both said that they had not contemplated that Mr Dada would be more than threatened. They did not know at that time that Wayne Lambert was a person who was deeply motivated by racial hatred or would be liable to use such excessive violence. The Judge summarised his character in this way in the summing up:
"Let us for a moment consider what you know about Wayne Lambert. You saw him produced in the dock, a tall powerfully built man; a man you may think with an evil, senseless, savage hatred for members of the Pakistani community; a man who in the commission of crime is quick to inflict terrible injuries on his victims; a domineering and threatening personality."
The case of the two defendants at the trial was therefore that they were not to be associated with the killing of Mr Dada by Wayne Lambert. They said it went far beyond anything that they had contemplated or that they had any reason to contemplate. His attack on Mr Dada was motivated not by the needs of the robbery but by vicious racial hatred and was so excessive that it did not form part of any joint enterprise upon which the three of them were engaged. They said that the jury should not be satisfied that they were parties to the unlawful killing of Mr Dada.
In his summing up the Judge dealt with the issues in this way:
"There is no dispute that Barry Schofield and Heather Stewart were parties with Wayne Lambert in a joint criminal enterprise to rob Mr Dada in his shop. Let us consider the case of murder in relation to Barry Schofield and Heather Stewart separately as we must.
Barry Schofield's case is that although he knew that Heather Stewart was armed with a kitchen knife and Wayne Lambert was armed with a piece of scaffolding bar, he was never agreeable to the use of either weapon to inflict any injury on Mr Dada. The knife and the piece of scaffolding bar were only to be used to frighten Mr Dada. You could only convict Barry Schofield of murder if you were sure that Barry Schofield's case was false and were sure that as a part of the joint criminal enterprise Barry Schofield was agreeable to Wayne Lambert striking Mr Dada with a piece of scaffolding bar with specific intention of either killing him or doing him really serious bodily injury.
Heather Stewart's case is that she did not carry a knife. She did not know that Wayne Lambert was armed with a piece of scaffolding bar. She was never agreeable to the infliction by Wayne Lambert of any bodily injury upon Mr Dada and indeed was horrified when she saw him strike Mr Dada with a piece of scaffolding pole. She expected the robbery to be effected by Wayne Lambert holding Mr Dada whilst she extracted the money from his pocket. You can only convict Heather Stewart of murder if you were sure that Heather Stewart's case was false and were sure that as [a] part of the joint criminal enterprise Heather Stewart was agreeable to Wayne Lambert striking Mr Dada with the piece of scaffolding bar with the specific intention of either killing him or doing him really serious bodily harm.
If you find murder unproved against either Schofield or Stewart or both of them, you must return a verdict of not guilty of murder and then consider whether manslaughter is proved against either or both of them.
Let us consider the case of manslaughter in relation to [Barry] Schofield and Heather Stewart, again separately as you must. Manslaughter is committed if a person is unlawfully fatally injured by another who at the time of inflicting the fatal injuries appreciates that his victim may suffer some bodily injury, albeit not necessarily serious injury. Manslaughter is an alternative offence to murder and a lesser offence than murder.
You could only convict Barry Schofield of manslaughter if you were sure that as part of the joint criminal enterprise he was agreeable to, or realised that, or if he had thought about it must have realised that Wayne, Lambert might, in the heat of the moment or in the excitement or tension of the occasion, strike Mr Dada with a piece of scaffolding bar and inflict some bodily injury on him.
You could only convict Heather Stewart of manslaughter if you were sure that she was armed with a kitchen knife and she knew that Wayne Lambert was armed with a piece of scaffolding bar, and you were sure that as part of the joint criminal enterprise she was agreeable to or realised, or if she had thought about it must have realised, that Wayne Lambert might, in the heat of the moment or in the excitement or tension of the occasion, strike Mr Dada with the piece of scaffolding bar and inflict some bodily injury on him."
It is acknowledged that the summing up of the Judge was both balanced and fair. But it is submitted on behalf of both appellants that the direction on manslaughter was wrong in law. Before the jury retired the Judge gave them written directions which corresponded to the directions which I have read out.
The primary ground of appeal of the appellants is:
"Having regard to the decision of the Court of Criminal Appeal in R.v. Anderson and Morris [1966] 2 QB 110 and notwithstanding the subsequent authority of R.v. Reid (1975) 62 Cr App R 109, it is not open to a jury which acquits a secondary party of murder to convict him of manslaughter in the alternative, where the principal is guilty of murder."
Mr Farrer QC who appeared for Barry Schofield and upon whom the main burden of arguing the appeals fell, summarised the point in this way in his skeleton argument:
"The choice for the jury is this:
either
(i) The possible infliction of serious injury was contemplated by P2;
if so, then death resulted from the execution of the common design; P2 is guilty of murder, regardless of his intent
or
(ii) P2 contemplated the possible infliction of no more than moderate injury;
if so, then death resulted from an act which went beyond the design to which P2 was a party. P2 has no criminal liability for that death, whether in murder or manslaughter."
There was an alternative ground of appeal that the direction on joint enterprise and manslaughter was inadequately specific on the question of causation; whether the killing was outside the scope of the joint enterprise to rob.
The alternative ground does not require separate consideration. We are satisfied that the Judge's summing up, both as a whole and in the directly relevant passages, drew to the jury's attention the relevant issues and the evidence upon which the defendants relied. The judge stressed to the jury that, if they were to convict, they had to reject the cases of the respective defendants; they had to be satisfied, so far as Heather Stewart was concerned, that she was armed with the kitchen knife and knew that Wayne Lambert was armed with a piece of scaffolding bar and, as regards both of them, that as part of the joint criminal enterprise they were each agreeable to or realised or must have realised the relevant matters. There was no risk that the jury failed to understand that, in order to return any verdict of guilty, they had to be satisfied that what Wayne Lambert did was done in the course of the joint enterprise of robbery even though the Judge did not, as he might have, repeat that phrase in the concluding part of his direction. Accordingly we do not consider that there is any material criticism to be made of the summing up in this respect.
Reverting to the main ground of appeal, which seems to have been only very lightly touched on, if at all, before the Judge, it is important in our judgment, before discussing the authorities, to refer to some of the basic considerations in this part of the law. We consider that they are very adequately set out in Archbold, particularly at paragraphs 19 23 and following.
Manslaughter
The constituents of manslaughter are conveniently stated in the head note in DPP v Newbury [1977] AC 500:
"[The] accused was guilty of manslaughter if it was proved that he intentionally did an act which was unlawful and dangerous and that that act inadvertently caused death. ... It was unnecessary to prove that the accused knew that the act was unlawful or dangerous. The test was still the objective test, namely whether all sober and reasonable people would recognise that the act was dangerous and not whether the accused recognised its danger."
Thus the criminal act is the doing of the unlawful act which causes the death. The unlawful act must be one which, objectively assessed, is dangerous, that is to say, subjects the victim to at least the risk of some harm, albeit not serious harm. (R.v. Church 49 Cr App R 206; Newbury at pages 509 and 510.) The mental element required is no more than an intention to commit the unlawful act.
Joint enterprise
The allegation that a defendant took part in the execution of a crime as a joint enterprise is not the same as an allegation that he aided, abetted, counselled or procured the commission of that crime. A person who is a mere aider or abettor etc is truly a secondary party to the commission of whatever crime it is that the principal has committed although he may be charged as a principal. If the principal has committed the crime of murder, the liability of the secondary party can only be a liability for aiding and abetting murder. In contrast, where the allegation is joint enterprise, the allegation is that one defendant participated in the criminal act of another. This is a different principle. It renders each of the parties to a joint enterprise criminally liable for the acts done in the course of carrying out that joint enterprise. Where the criminal liability of any given defendant depends upon the further proof that he had a certain state of mind, that state of mind must be proved against that defendant. Even though several defendants may, as a result of having engaged in a joint enterprise, be each criminally responsible for the criminal act of one of those defendants done in the course of carrying out the joint enterprise, their individual criminal responsibility will, in such a case, depend upon what individual state of mind or intention has been proved against them. Thus, each may be a party to the unlawful act which caused the victim's death. But one may have had the intent either to kill him or to cause him serious harm and be guilty of murder, whereas another may not have had that intent and may be guilty only of manslaughter.
Mens rea
An allegation that a defendant was part of a criminal joint enterprise with others includes an allegation that he was aware of the character of the joint enterprise in which he was joining and foresaw that the relevant criminal acts were liable to be involved. Thus, the allegation of joint enterprise involves an allegation concerning the state of the defendant's mind at the time of his participation in the joint enterprise. Normally the fact that the defendant had the state of mind sufficient to prove his guilt of the offence charged is proved by proof that he was a party to the joint enterprise in the course of which the criminal acts were committed. But joint enterprises vary. They may have a purpose, say the infliction of grievous bodily harm, which corresponds to the specific intent for a particular crime, say murder or an offence contrary to section 18 of the Offences Against the Person Act, in which case participation in the joint enterprise will prove the relevant mens rea. But in other cases the purpose of the joint enterprise may have been more limited and the relevant criminal liability may only have arisen from some undesired consequence. Provided that the joint enterprise is proved in relation to the relevant acts then it is not an answer that consequences of those acts were unusual or unexpected. Even if unusual or unexpected consequences arose from the execution of the plan, each participant is responsible for those consequences. In such cases the liability of an individual defendant may depend upon whether his intention at the time the act was done included an intention that the consequence should follow. A defendant who had that intention may have a more serious criminal liability than one who did not. This is because the mens rea for the more serious offence can be proved against the one but not against the other.
Archbold
The analysis which we have shortly summarised is that followed by the editors of Archbold and by way of summary we are content to adopt what they say:
"A person who is a party to a joint enterprise, the pursuance of which results in the causing of another's death may be criminally liable for that death either on the basis that he is guilty of murder or on the basis that he is guilty of manslaughter. It is fundamental to a conviction of either offence that the accused must have been a party to the act which caused death. The application of the law concerning joint enterprise in cases of homicide in practice raises two problems, (i) whether in the circumstances the accused was party to the act which caused death; (ii) if he was, whether his state of mind was such as to make him guilty of murder or of manslaughter."
The editors go on to refer to the case of R.v. Richards and Stobber 96 Cr App R 258 in which it was recognised that different pleas might be accepted from defendants involved in a joint enterprise on this basis. The editors also treat the case of Reid and the case of Betty 48 Cr App R 6 (see paragraph 19 93) as exemplifying and confirming their analysis.
The Authorities
The main case upon which Mr Farrer founded his submissions was Anderson and Morris [1966] 2 QB 110, 50 Cr App R 216. But like him we will start with Betty (supra). Betty and another man were charged with manslaughter and both were convicted. The killing arose out of a fight in which they were both involved. Their defences at trial were self defence. But Betty also argued that in truth his co defendant had murdered the victim and that this meant that he, Betty, should not have been convicted of manslaughter. The Court of Criminal Appeal rejected that argument, saying that the point was covered by an earlier decision of a five judge court, Smith [1963] 1 WLR 1200, in which the Court had expressly approved the direction
"Anybody who is a party to an attack which results in an unlawful killing which results in death is a party to the killing. ... 'only he who intended that unlawful and grievous bodily harm should be done is guilty of murder. He who intended only that the victim should be unlawfully hit and hurt will be guilty of manslaughter if death results'."
The Court dismissed Betty's appeal. They applied Smith and held that the point raised was no defence unless the unlawful act which resulted in death was not done in the course of the joint enterprise.
In Anderson and Morris the Court was again a five judge court. Two men had been involved in an attack on a man. One of the men, Anderson, stabbed him with a knife and killed him. The other man, Morris, said that he had not known that Anderson was going to use a knife. Anderson was convicted of murder and Morris of manslaughter. Morris' appeal was allowed because the trial judge had directed the jury that neither the fact that Morris had not known about the knife nor the fact that Anderson did an act outside the common design to which Morris was a party could provide Morris with a defence to manslaughter. This was a clear misdirection. The Court approved and adopted the submission of Mr Lane QC, counsel for Morris, that whilst a party to a joint enterprise would be liable for the acts done in pursuance of the joint enterprise, including "liability for unusual consequences if they arise from the execution of the agreed joint enterprise; but ... if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co adventurer is not liable for the consequence of that unauthorised act". (50 Cr App R at page 221.) The Court did not question Smith and Betty (by which they were anyway bound). What they did was to confirm and stress the need for the Crown, if it seeks to rely upon joint enterprise, to prove that the criminal act was done as part of the joint enterprise. There is nothing in this which is inconsistent with the directions of Morland J.
In Lovesey and Peterson 53 Cr App R 461, following Anderson and Morris and applying the 'Lane' formulation, the Court refused to substitute a verdict of manslaughter for an unsatisfactory conviction for murder because they considered that the degree of violence used led to the conclusion that if the acts were within the common design it had to be murder and, if they were not, there was no other basis for any finding of guilt.
Reid was decided in 1975. The Court included Lane LJ who had been involved in both the previously cited cases and must have had them fully in mind. Three men, alleged by the Crown to be supporters of the IRA, armed with weapons went to the house of an army officer at night. When he opened the door one of them shot him. Two were convicted of murder; the third, Reid, was acquitted of murder but convicted of manslaughter. His defence had been that he was not part of the joint venture but had gone along with them in order to see whether the other two were really IRA terrorists, which he did not believe they were. The judge had given the jury a direction on manslaughter based upon Church. The appeal of Reid was based upon the factual submission that on the evidence it must have been murder or nothing. The Court rejected that submission. They stressed the common possession of the weapons. They said:
"If men carrying offensive indeed deadly weapons go to a man's house in the early hours of the morning for no discernable lawful purpose, they must, in our judgment, intend to do him harm of some kind, and the very least kind of harm is causing fright by threats to use them."
Having cited Anderson and Morris, they asked:
"Was O'Connaill's deliberate firing of the revolver 'a mere unforeseen consequence' of the unlawful possession of offensive weapons? We adjudge it was."
There then followed the passage quoted at the outset of this judgment. They dismissed Reid's appeal.
It is not possible to suggest that this decision was in any way per incuriam. Unless it is inconsistent with other binding authority, it is binding upon us.
Penfold 71 Cr App R 4 did not involve the use of weapons, but the Court held that the fact that one defendant used excessive violence during a robbery, killing the victim, did not preclude a conviction for manslaughter on the basis of joint enterprise. The Court strongly commented upon the need to proceed on the basis of realistic inferences as to what was to be contemplated by those involved in crimes of violence and not to be drawn into unrealistic theoretical distinctions. This echoed the language in Reid.
Chan Wing Sui, 80 Cr App R 117 (JC), was concerned with a joint enterprise to commit armed robbery which then led to a murder. The test was what should be seen as a possible incident of the unlawful criminal exercise. The jury were entitled to form their own view whether the risk of (severe) injury to the victim was so remote that it could be disregarded: "They were entitled to remember that disastrous violent action on the impulse of a moment of emergency is very apt to occur when intruders have weapons" (page 124). This case was followed in Ward 85 Cr App R 71, but not in Smith [1988] Crim LR 617.
A case upon which Mr Farrer has particularly relied, and which he says is inconsistent with Reid, is Dunbar [1988] Crim LR 693 (for which we also have a transcript). The victim was a prostitute. She was found dead in the bath in her flat. She had been garrotted with a metal bar. She had also received other injuries. The evidence was that she had been killed by two burglars; they were convicted of murder. The case of the Crown was that they had been recruited by Dunbar, another prostitute. The allegation against her was, therefore, not that she had participated in a joint enterprise, but that she was an accessory before the fact and had counselled or procured the commission of the crime. She denied any incitement to murder. She knew that a burglary was being planned and appreciated that some minor violence might be done to the victim in the course of the burglary; she knew nothing about the intention to use an iron bar and did not contemplate any serious violence. She was acquitted of murder but convicted of manslaughter. The Court of Appeal, applying Anderson and Morris and Lovesey and Peterson, considered that the verdict of the jury was only consistent with the conclusion by the jury that "one or both of her co defendants must have gone beyond the scope of that design and used the extreme violence which was intended to cause grievous bodily harm or death". The Court stressed that it was "on the facts of this case" that they had concluded that there were only two verdicts open to the jury, guilty or not guilty of murder. The Court also considered the summing up in her case to be defective because it did not sufficiently cover the law incorporated in the 'Lane' formulation.
The transcript of the judgment of the Court of Appeal does not justify the conclusion that the law was being stated or applied in any different way from the earlier cases. Leaving on one side defective directions of law by the trial judges, the distinction between the outcome of Smith, Betty, and Reid on the one hand and Anderson and Morris, Lovesey and Peterson and Dunbar on the other is that a different view was taken of the facts of the cases and whether the act in question was, or was to be treated as being, within or without the scope of the joint enterprise. Dunbar is not authority for the proposition that the cases falling on the other side of the line were wrongly decided nor for the proposition that, in a suitable case, a jury cannot properly find one participant in a joint enterprise guilty of murder and another of manslaughter. We do not agree with the views to the contrary expressed in the notes in the Criminal Law Review and in Smith & Hogan; that discussion also does not seem to take account of the fact that Dunbar probably should not be categorised as a case of joint enterprise at all. The case of Hyde 92 Cr App R 131, a case of joint enterprise, however, illustrates and confirms that a joint enterprise to commit a non violent crime, burglary, may become more serious if one participant continues appreciating that another may kill or intentionally inflict serious injury; a conviction for murder on that basis was upheld.
Finally, we should refer to the advice of the Judicial Committee delivered by Lord Lowry in Hui Chi Ming, [1992] 1 AC 34, which involved a group attack on a man in the course of which one of the attackers used a piece of piping and the man was killed. The fatal blow was struck by a man who had been acquitted of murder at an earlier trial but convicted of manslaughter. At the appellant's trial the Crown's case was that it had, nevertheless, been a case of a joint enterprise to inflict serious harm or kill. The appellant was convicted of murder. The main discussion related to what common enterprise was necessary to prove the mens rea for murder; Hyde was followed. But for present purposes the interest in the case is that the trial judge had directed the jury:
"14. If on the other hand, you are satisfied that the [defendant] was present and that he shared an intention with his companions that the victim should be assaulted and caused some injury, but some injury less than some really serious bodily injury, then he would not be guilty of murder but would be guilty of manslaughter.
15. If you conclude that it was a reasonable possibility that the [defendant] though present did not share any intention with the others that the victim should in any way be assaulted, then he would be entitled to an acquittal."
These directions recognised that, although the victim may have been murdered by another participant in the joint venture, the appellant, although a participant in a joint venture with others, may have lacked the mens rea for murder but could still be guilty of manslaughter. They were implicitly approved by Lord Lowry (page 41).
The authorities do not support the appellants' submission. There is no suggestion that Reid was wrongly decided nor that there is an inconsistency between what Lawton LJ there said and what was said in Anderson and Morris by Lord Parker CJ. The distinction between the various cases is that, as one would expect, in different factual situations there may be different verdicts open to a jury. The latest case, Hui Chi Ming, confirms again that it is possible that a person may be a party to a joint enterprise which leads to death and be guilty of manslaughter although the actual killer may be guilty of murder.
Conclusion
The directions given by Morland J in the present case disclose no error of law. The verdicts of manslaughter were properly open to the jury and were correctly left to them. It is possible to identify a number of confusions in the appellants' arguments and, it appears, in the academic comment. Cases of joint enterprise, properly so termed, should not be confused with cases of counselling or procuring. It may often be the case that the proof of a defendant's mens rea is sufficiently proved by proof of his participation in the joint enterprise; the cases cited emphasise this. But it does not follow that this will, or must, always be the case. It is possible that a defendant, whilst being a participant in a joint enterprise and responsible for the unintended consequences of acts done in the course of the carrying out that joint enterprise, may lack a specific intent possessed by another participant. In any given case the issue may arise what was the scope of the joint enterprise; depending upon what answer is given to that question, a further question may arise where a crime of specific intent is charged, what was the state of mind of the defendant. The mens rea of the defendant may be proved by either method, by proof of participation in a joint enterprise having the requisite character, or, where the joint enterprise proved does not have that character, by proof of a specific intent. Where proof of participation in the joint enterprise during the course of which the relevant act was done is considered to prove only the mens rea appropriate to a lesser offence, only the lesser crime will have been proved against that defendant, although the act in question may have involved the commission of a more serious crime by another against whom a specific intent can be proved.
The question whether the relevant act was committed in the course of carrying out the joint enterprise in which the defendant was a participant is a question of fact not law. If the act was not so committed then the joint enterprise ceases to provide a basis for a finding of guilt against such a defendant. He ceases to be responsible for the act. This is the fundamental point illustrated by Anderson and Morris and Lovesey and Peterson. But it does not follow that a variation in the intent of some of the participants at the time the critical act is done precludes the act from having been done in the course of carrying out the joint enterprise as is illustrated by Betty and Reid.
The appeals against conviction must accordingly be dismissed.
APPEALS AGAINST SENTENCE
Both Heather Stewart and Barry Schofield appeal with leave of the single judge against their sentences. Heather Stewart fell to be sentenced only on the robbery count, to which she had pleaded guilty, and the manslaughter count on which she was convicted by the jury. The sentences passed were respectively nine years' and twelve years' imprisonment concurrent. Her date of birth was 5th October 1970. Barry Schofield is younger. His date of birth was 8th September 1974. He was therefore 18 at the time he was sentenced in January 1993. For the offences of robbery (on his plea) and manslaughter (on the jury's verdict) he was sentenced to respectively eight years' and eleven years' detention in a young offender institution. He also fell to be sentenced for a further offence (to which he had pleaded) of assisting an offender for which he was sentenced to a consecutive period of two years' detention, making, in his case, a total of thirteen years' detention.
The features of the robbery and the manslaughter have already been outlined. It was a relatively unplanned robbery by a group of three persons from the 60 year old owner of a small local shop. Weapons were used and one of the assailants wore a balaclava. The weapons were potentially lethal, a metal bar and a knife, but were not firearms. During the course of the robbery the victim was severely beaten and received injuries from which he died. The sum of money taken was not large. The participation of Heather Stewart in the robbery was a major one. She was one of the instigators and she carried the knife. She did not however herself inflict violence on the victim. Barry Schofield was a willing participant in the robbery although he did not go into the shop. He knew that the other two were armed. It is accepted that neither Heather Stewart nor Barry Schofield wished the victim to be injured and had not known of the vicious racism of Wayne Lambert at the time they decided to rob the shop.
Neither Heather Stewart nor Barry Schofield were of previous good character. She had committed a whole series of shoplifting offences over a number of years but had always been dealt with by way of a probation order or fine. At the time of the instant offences she was on probation for four offences of shoplifting and one of burglary. She had a drug habit. She had a previous conviction for possession of cannabis and spent the money obtained from the robbery on heroin. She had no personal mitigation beyond her plea to the robbery. She had a young child. It was accepted that her remorse for being involved in the killing of Mr Dada was genuine.
Barry Schofield, given his age, had a bad record which included burglary and, in February 1992, a conviction for an offence of affray which involved a large serrated kitchen knife for which he received a short custodial sentence. He too was a user of hard drugs. At the time of committing the offence he was the subject of a probation order. He had no personal mitigation other than his limited pleas and his age.
The judge thought it appropriate to have a one year differential between the sentences passed on these two defendants, having regard to the lesser involvement of Barry Schofield. No criticism is made of this.
Both appellants submit that the sentences are too high since, as is accepted, the killing was the work of Wayne Lambert and he has received the appropriate sentence for murder. But the sentences passed, after a trial, for manslaughter committed in the course of an armed robbery are in line with authority and, whilst on the high side, cannot be said to be such that this Court should interfere. The sentences passed on the participants other than Wayne Lambert needed to, and did, reflect the much lower level of their guilt. We also have had regard to the totality of the sentences, taking into account their ages. But taking into account all those factors we consider that the sentences were appropriate.
The other offence for which Barry Schofield fell to be sentenced was also serious. After the killing of Mr Dada Barry Schofield can have been under no illusions about the character of Wayne Lambert. Three days later, Wayne Lambert together with one Dean Millington committed a further robbery and murder. The victim was Mr Ansari, a coloured taxi driver. After this crime had been committed, Barry Schofield, knowing what had happened, assisted Wayne Lambert and Millington to cover their tracks by washing the victim's blood off the weapons used and helping to dispose of Millington's clothing.
The consecutive sentence was not wrong and the only point which could be raised was one of totality. However, for the serious further offence which this young man committed we consider that the consecutive sentence of two years should stand.
Accordingly, the appeals against sentence will be dismissed.
MR FARRER: My Lords, may I say that whilst I appear as originally with my learned friend Mr McDermott for Schofield today, he appears on behalf of Miss Stewart.
LORD JUSTICE HOBHOUSE: Yes.
MR FARRER: The Crown is represented by my learned friend Mr Hutchings.
LORD JUSTICE HOBHOUSE: Yes.
MR FARRER: My Lords, in the light of your Lordships' decision on the appeal against conviction we apply, certainly on behalf of Schofield, for this Court to certify a point which I have drafted; indeed, I must apologise for the fact that this has been drafted in the alternative this being because I wanted to communicate originally with my learned junior as to his own view as to which was the more appropriate formulation. Could I ask you to ignore paradoxically the briefer formulation which appears in bold type at the top of this document and simply to look at the alternative formulation which follows.
LORD JUSTICE HOBHOUSE: We will have to consider this. I think that is probably the best course, particularly in view of the hour. The appropriate course would be that we should consider together what formulation we consider would be appropriate and communicate our decision, if we are prepared to certify, to counsel.
MR FARRER: I am grateful, my Lord. If I may anticipate; if your Lordships do think it right to certify then normally I would at least go through what is nowadays the formality of asking leave of the Court to Appeal. I am not quite clear whether your Lordships are implying that a more informal method of communication of your Lordships' decision
LORD JUSTICE HOBHOUSE: There are two questions; one is a certification
MR FARRER: Yes.
LORD JUSTICE HOBHOUSE: and the other is leave to appeal. As you rightly recognised, the practice now has developed, save in exceptional cases, to leave it to their Lordships' House to decide whether leave should be given, and I gather that you accept that.
MR FARRER: Absolutely.
LORD JUSTICE HOBHOUSE: That applies to this case as well. So if we do certify, you may take it that we will formally refuse leave so that you can make your application to the House of Lords.
MR FARRER: I had simply in mind that plainly I am not anxious to increase the number of hearings certainly at which counsel attend or at which costs may be involved.
LORD JUSTICE HOBHOUSE: About the question of certification, we have not discussed this among ourselves, but no doubt we have personal thoughts about it, although it is probable that we will be prepared to certify. We have your formulation, which of course we are at liberty to amend if we think something is better.
MR FARRER: My Lord, yes.
LORD JUSTICE HOBHOUSE: What is the position of the Crown on this? Have you had an opportunity in advance to see this formulation?
MR HUTCHINGS: My Lord, no. (Same handed.) I see it now. I have no objection to my learned friend's question or the way he formulates it. I have nothing really to add.
LORD JUSTICE HOBHOUSE: So you do not have any submissions. But if on consideration you do have any submissions to make, if you could incorporate them in a written document then we will take them into account in deciding what question we will certify.
MR FARRER: I do not want to appear to be discourteous to the Crown but in fact there was consultation between defence and my learned friend Mr Tattersall who led for the Crown.
LORD JUSTICE HOBHOUSE: That is excellent.
MR JUSTICE TURNER: And the results of that consultation are reflected in this?
MR FARRER: It has not been amended by the Crown, if I put it that way, and it may not be the Crown's choice.
LORD JUSTICE HOBHOUSE: Part of the trouble is that you have to formulate the question before you have seen the judgment.
MR FARRER: Plainly, my Lords, and plainly before we had begun to appraise the significance of your Lordships' judgment. I appreciate that disadvantage as well.
LORD JUSTICE HOBHOUSE: Thank you. I thank counsel for their assistance. Mr McDermott, do you want to add anything?
MR MCDERMOTT: My Lords, I was simply going to say that I also make that application on behalf of Stewart, whose interests I am representing this morning in addition to Schofield's.
LORD JUSTICE HOBHOUSE: And you would accept that the basis of the applications must stand together?
MR MCDERMOTT: My Lord, yes.
[Appeals against conviction and sentence dismissed. The Court certified a point of law of general public importance but refused leave to appeal against conviction to the House of Lords.]
The point of law certified by the Court was in the following terms:
"Where participant, 'A', in a criminal joint enterprise contemplates that the carrying out of the joint enterprise may involve the victim suffering some bodily injury, but not a serious injury, and 'B', another participant in that joint enterprise, forms, independently of the others, and intention to kill or do serious bodily harm to the victim and, with that intention, 'B' does an act which causes the death of the victim:
Are the jury precluded, as a matter of law, from finding as a fact that that act was done in the course of carrying out the joint enterprise and convicting 'A' of manslaughter?"
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