Ian Brown and Another v The State
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann |
| Judgment Date | 29 January 2003 |
| Neutral Citation | [2003] UKPC 10 |
| Court | Privy Council |
| Docket Number | Appeal No 9 of 2002 |
| Date | 29 January 2003 |
[2003] UKPC 10
Present at the hearing:-
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Sir Denis Henry
Privy Council
[Delivered by Lord Hoffmann]
The appellants Ian Brown (also known as Foots) and Everitt Isaac (also known as Sonil) were convicted on 2 February 2000 at the Port of Spain Assizes (Lucky J and a jury) of the murders of Charmaine Jack and Desmond Orr. They were sentenced to death. On 21 September 2000 the Court of Appeal refused their applications for leave to appeal. They appeal by special leave to the Privy Council against both conviction and sentence.
The murders took place on the night of 1 July 1996 close to the house in Malick, Barataria, in an area known as Vegas, where Charmaine Jack, aged 22, lived with several other members of her family. She was in her room on the ground floor with Desmond Orr, who had been visiting her from time to time over the previous week. At about 10.30 pm her mother, Janet Jack, who lived in a room on the first floor, heard what sounded like breaking glass. Holding the baby she was looking after for another daughter, she went out to see what was happening. She saw Ian Brown, a near neighbour whom she had known for three years as Foots, dragging Charmaine out of the house by the hair. Following them was Everitt Isaac, whom she knew as Sonil and whom she had seen visiting Brown's house regularly over the past three months, pushing Desmond Orr and beating him across the back with the flat of a cutlass. Seeing her mother, Charmaine cried out: "Oh God, Mammy, oh God, Mammy, help me, look Foots come here with a gun to kill me". The two abductors and their victims crossed the yard and disappeared down a track into the night.
Fitzroy Duncan, who lived next door, also heard the sound of breaking glass and looked out from behind his curtains. He also knew Foots as a neighbour and Sonil as a regular visitor. He saw them dragging and pushing Charmaine and Desmond Orr across the yard and down the track. A few minutes after they had disappeared he heard four shots. He and Janet Jack conferred in the yard and he escorted her and the baby to the road where she found a taxi. He went back towards the house but when he heard some more shots he changed his mind and went to spend the night with his sister.
The following morning the bodies of Charmaine and Desmond Orr were found in the bushes just off the track, about a hundred yards from the house. Both had been shot in the head. Janet Jack and Fitzroy Duncan made statements to the police the same day, naming Foots and Sonil as the abductors. It took the police some time to find them. There was some dispute about when they were arrested (the investigating officer put the wrong date on the warrant) but it seems to have been more than a month after the murders. Once they were in custody, both Janet Jack and Fitzroy Duncan were brought in to see them and confirm that they were the right men. There was no identification parade.
At the trial before Lucky J and a jury, both accused relied upon alibis. Foots said that he had gone to the cinema that night with a school friend and afterwards gone to his house to watch a video. Sonil said that he had watched a basketball game with a girl friend and that they had afterwards spent the night together. Both friends gave evidence in support. But the jury did not believe them and convicted.
The appellants have put forward a number of separate grounds of appeal, not all of which were raised in the Court of Appeal. Their Lordships will consider them in turn.
Joint enterprise
The chief ground of appeal advanced on behalf of both accused before the Board concerned the judge's directions on the law of joint enterprise. There was no direct evidence to show who had fired the fatal shot. Charmaine, in her last cry for help, had said that Foots had a gun. But Sonil might also have had a gun and used it. Or he might have taken Foots's gun. In order to convict both appellants, it was therefore necessary to find them liable on the basis of joint enterprise.
The simplest form of joint enterprise, in the context of murder, is when two or more people plan to murder someone and do so. If both participated in carrying out the plan, both are liable. It does not matter who actually inflicted the fatal injury. This might be called the paradigm case of joint enterprise liability. But things become more complicated when there is no plan to murder but, in the course of carrying out a plan to do something else, one of the participants commits a murder. The most common example is a planned robbery, in which the participants hope to be able to get what they want without killing anyone, but one of them does in fact kill. In such a case, the other participants may still be guilty of murder, provided that they had the necessary state of mind. The precise nature of that state of mind was until recently not entirely clear. But in R v Powell (Anthony) and English [1999] 1 AC 1 the House of Lords said that it meant that the other participant 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, i.e. with the intent necessary for murder. Thus the Powell and English doctrine extends joint enterprise liability from the paradigm case of a plan to murder to the case of a plan to commit another offence in the course of which the possibility of a murder is foreseen.
The evidence of Janet Jack and Fitzroy Duncan and the manner in which the victims met their deaths strongly suggested that the two accused arrived with the common intention of murdering them and carried that plan into effect. It had all the appearance of a brutal execution. As the accused denied having been there at all, their evidence could not cast the events in a different light. The trial was conducted on the basis that the only matter seriously in issue was whether the accused had been correctly identified as the murderers. Of course it is true that the accused, having decided to put forward alibi defences, could not very well say that if those defences were rejected, they wished to explain that the other accused had fired the fatal shots and that they had not foreseen that he might do so. That is always the forensic handicap of an accused who puts forward a false alibi. But the judge has a duty to put to the jury any defence which fairly arises on the evidence, whether the accused is relying upon it or not. Before summing up, Lucky J invited submissions in the absence of the jury on whether there was anything counsel thought should be mentioned. Counsel for the prosecution said that he had forgotten to refer to joint enterprise in his closing speech and suggested that judge deal with it in the summing up. Neither of the defence counsel referred to the subject.
The judge began his summing up by reminding the jury that the accused were indicted on a charge of murder and outlined the facts as alleged by the prosecution. He told the jury that the case against each accused had to be considered separately. Then he dealt with joint enterprise:
"The second basic direction I want to give you is this, and I may return to it. The Prosecution's case is that the accused committed this offence together. Where a criminal offence is committed by two or more persons, each of them may play a different part. But if they are acting together as part of a joint plan or agreement to commit it, they are each guilty. The words 'plan' and 'agreement' do not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment, nothing need be said at all. It can be made with a nod and a wink or a knowing look or it can be inferred from the behaviour of the parties. The essence of joint responsibility for a criminal offence is that each accused shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim.
Your approach to the case should therefore be as follows: If in looking at the case of either accused you are sure that he did an act or acts or [as?] part of a joint plan or agreement to commit it, he is guilty. Put simply or in other words, the question for you is: Were they in it together?"
Although the judge said that he might return to the question of joint enterprise, he did not. Both Mr Richard Jones QC, who appeared for Ian Brown, and Mr Dingemans QC, who...
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