Joint Enterprise—Withdrawal
| Author | David Cowley |
| DOI | http://doi.org/10.1177/002201839906300614 |
| Published date | 01 December 1999 |
| Date | 01 December 1999 |
| Subject Matter | Court of Appeal |
Court
of
Appeal
Joint
Enterprise-Withdrawal
Rv
Mitchell
and Another (1998)
The
Times,
7October
The appellants and their coaccused (X) caused a disturbance inside an
Indian takeaway restaurant during which the premises were damaged.
They left the restaurant and were pursued by several of the restaurant
staff. Fighting broke
out
as a result of which
one
of the restaurant staff
died. There was some evidence that after
the
deceased had been re-
peatedly struck and kicked,
the
appellants
and
Xhad walked away from
the deceased leaving him on the ground and that Xhad
then
turned
round, picked up a stick
and
returned to the deceased and hit him
several times with the stick. The deceased subsequently died of his
injuries in hospital. The appellants and Xwere charged with his murder.
The prosecution case was
that
the three
men
were in a joint enterprise
to do serious
harm
to the deceased. The appellants contended, inter
alia,
that, if there was a joint enterprise to inflict violence on
the
deceased,
they had withdrawn from it by
the
time the fatal blows were struck.
The trial judge directed
the
jury that adefendant
who
withdrew
himself from the joint enterprise before the fatal blows were struck
could
not
be guilty as asecondary party in respect of the fatality and,
relying on R v
Whitehouse
[1941] 1 WLR 112, told the
jury
that in order
for there to be a withdrawal from a joint enterprise there must have
been a timely communication to the principal offender of
the
intention
to abandon the common purpose from those
who
wished to withdraw
from
the
contemplated crime. All three
men
were convicted. The appel-
lants appealed to the Court of Appeal against conviction.
HELD,
ALLOWING
THE
APPEALS,
quashing the convictions
and
ordering
a retrial, although communication of withdrawal from a joint enter-
prise was a necessary condition for disassociation from an offence of
pre-planned violence, it was
not
necessary where
the
violence was
spontaneous.
It
followed that in the present case, which involved spon-
taneous violence, it was inappropriate for the trial judge to direct the
jury
on
the
test of communication of withdrawal as laid down in
Whitehouse
(above)
and
it might have led
them
to proceed on
the
basis
that
if either of the appellants had
not
communicated the withdrawal to
the
other
or principal party, he was still guilty of murder. Accordingly,
the
convictions were unsafe.
COMMENTARY
The distinction drawn in the present case between cases of joint enter-
prise involving pre-planned violence
and
spontaneous violence is new.
Whilst numerous earlier authorities had emphasised communication of
withdrawal to be a pre-condition of disassociation from a joint enter-
prise, it had repeatedly been stated
that
'private repentance' or a mere
mental change of intention
and
a physical change of place on the
538
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