Fatal Injuries in UK Law

To disengage from an incident a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise. This is ultimately a question of fact and degree for the jury. Account will be taken of inter alia the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal.

There is no reference to a requirement that reasonable steps must have been taken to prevent the crime. The old decision of R v Hyde Hale 1 Pleas of the Crown 537 (1672) and R v Grundy [1977] Cr. L. Rev. 543 are also illustrations of the recognition that this is not necessary.

For these reasons a defendant who effectively disengages or withdraws before the fatal injury is or injuries are inflicted is not guilty of murder because he was not party to and did not participate in any unlawful violence which caused the fatal injury or injuries.

Accordingly, we consider, as this Court did in R v Mitchell and King (1998) 163 JP 75 that the jury should have been directed that that they must be satisfied (a) that the fatal injuries were sustained when the joint enterprise was continuing and that the defendant was still acting within that joint enterprise, and (b) that the acts which caused the death were within the scope of the joint enterprise.

It means that although a prisoner may be released, he still remains liable to be recalled. In addition, he contrasts the position of a life sentence prisoner with that of a prisoner sentenced to a determinate sentence. It is clear that as a result of section 2, offenders are now being sentenced to life imprisonment when there is no objective justification for that sentence. Such a result can be categorised as being arbitrary and not proportionate.

In his speech in The Governor of Brockhill Prison ex parte Evans (No.2) [2000] 3 WLR 843 at p.858, Lord Hope considered the relationship between Article 5 of the Convention and our domestic law. In the course of doing so, he recognised that the question would arise as to whether, "assuming that the detention is lawful under domestic law", it is nevertheless open to criticism on the ground that it is arbitrary because, for example, it was resorted to in bad faith or was not proportionate".

Subject to this consideration, we are not unsympathetic to the argument that in some murder cases at any rate, the first reasonable opportunity firmly and finally to indicate an intention to plead guilty to murder may not arise until after the defendant has seen leading counsel. Equally, it is essential for leading counsel instructed in such cases to arrange a consultation with the defendant at the earliest practicable date.