Does Complicity Require a Measurable Contribution?
| Published date | 01 August 2023 |
| DOI | http://doi.org/10.1177/00220183231191471 |
| Author | Beatrice Krebs |
| Date | 01 August 2023 |
Does Complicity Require a
Measurable Contribution?
R v Hussain and Others [2023] EWCA Crim 697
Keywords
Accessory liability, assistance, causation, encouragement, joint enterprise
Facts
The applicants (Saddam Hussain, Fiaz, and Carpenter) sought leave to appeal against their convictions for
murder and conspiracy to rob. The victim had been fatally stabbed by Hammad Hussain (Hammad), the
brother of the first applicant. Hammad had then fled the country and was never arrested. It was the pros-
ecution case that the victim was a drug dealer and that he was stabbed because Hammad wanted to steal
his stock and money and/or put him out of business. The prosecution alleged that Hammad had been
assisted and/or encouraged by the applicants who had been parties to a joint plan which included an inten-
tion that the victim would, if necessary, be caused really serious injury.
On the facts as the jury must have found them, Carpenter had phoned the victim to arrange a meeting.
He then drove, together with Fiaz and Hammad, to an area near the victim’sflat where they waited for the
victim to come home. A few minutes after the victim and his girlfriend had returned to the flat, Carpenter
entered the block of flats, leaving the outer door propped open. Fiaz and Hammad remained in the car.
Not long thereafter, a message was sent from Fiaz’s phone to Carpenter, asking ‘Drop ready?’Two
minutes later, a further text was sent asking ‘Shall I send him or wat [sic]?’Soon afterwards,
Hammad entered the flat with a large knife. Fiaz remained in or near the car. Hammad approached the
victim, addressing him in rude language but making no request for drugs or money. The victim
grabbed a baseball bat. As the two men fought, Carpenter left the flat. Hammad inflicted the fatal stab
wound before the victim’s girlfriend managed to fend off the attack.
This case note will focus on one of Fiaz’s grounds of appeal which raises an interesting issue of law: he
submitted that whilst it was not necessary for the prosecution to prove that the accessory in encouraging
the commission of a crime by another did in fact cause that other to commit the crime, it was nonetheless
necessary to prove that his conduct had made ‘a measurable contribution’to the crime (at [58]). There
was insufficient evidence to show that Fiaz was more than merely present in the car and that
Hammad’s actions were within the scope of what Fiaz knew, intended or participated in. Somebody
else might have used Fiaz’s phone to send the messages to Carpenter. The judge had wrongly failed
to explain to the jury what was meant by a defendant being ‘more than merely present’(at [54]).
Held, dismissing all applications for leave to appeal, that the evidence adduced by the prosecution
was ‘unarguably sufficient to enable a reasonable jury to conclude that each of the applicants was party to
a plan to attack and/or to rob [the victim], if necessary, causing him really serious injury’(at [75]). The
applicants had all accepted that there was a plan at least to steal, if not to rob; and the jury were entitled to
reject as unrealistic any suggestion that drugs and money would be taken from the victim without any
intention to use violence and to cause serious injury if required. A plan to steal could have been accom-
plished by burgling the flat in the victim’s absence, but those in the car waited for the victim to return
before Carpenter entered the flat and left the door ajar for Hammad to follow.
Case Note
The Journal of Criminal Law
2023, Vol. 87(4) 294–298
© The Author(s) 2023
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sagepub.com/journals-permissions
DOI: 10.1177/00220183231191471
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