R v Rahman (Islamur) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hooper |
| Judgment Date | 23 February 2007 |
| Neutral Citation | [2007] EWCA Crim 342 |
| Docket Number | Case No: 200502256/200502258/200502259/200603968 D5 |
| Date | 23 February 2007 |
| Court | Court of Appeal (Criminal Division) |
[2007] EWCA Crim 342
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Crown Court at Leeds
Mr Justice Wakerley
T200407328
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hooper
Mr Justice Gibbs and
Mr Justice Roderick Evans
Case No: 200502256/200502258/200502259/200603968 D5
Mr P Collier QC and Mr N Lumley for Islamur Rahman
Mr R Harrison QC and Mr Y Valli for Kamer Akram
Mr Turner QC and Mr T Rehman for Anjum Nisa Amin
Mr Bourne-Arton QC and Mr C Batty for Liaquat Ali
Robert Smith QC and Paul Greaney for the Respondent
Hearing dates: 24 +25 October 2006, 15, 16 + 18 January 2007
Rt Hon
This is a judgment to which all members of the Court have contributed. The appeal is primarily concerned with joint enterprise in cases of homicide and, in particular, with the rule the effect of which is that a limited category of secondary parties will not be guilty of murder if the fatal act of the primary party was fundamentally different to that foreseen by the secondary party. In paragraphs 68 and following we give some guidance as to how cases of joint enterprise murder should be summed up to a jury.
On 4 th March, 2005, in the Crown Court at Leeds the appellants were each convicted of murder.
On the afternoon of 22 April, 2004, at the rear of 21 Brett Gardens, Beeston, 16 year old Tyrone Clark died from a stab wound to the back during an attack on him by a number of persons. He sustained three stab wounds; one to the shoulder, which did not penetrate any vital organ, and two to the back; one of which penetrated the aorta, leading rapidly to his death. It was the prosecution's case that all of the appellants were part of the group attacking Tyrone Clark at the time of his death. The jury were instructed that a defendant could not be convicted of murder unless they were present at the rear of 21 Brett Gardens and participating in the attack. It follows from the jury's verdict that each appellant was thus present at the rear of 21 Brett Gardens and participating in the attack
The prosecution called disputed evidence that the appellant Liaquat Ali was in possession of a knife just before Tyrone Clark met his death and that the group which was surrounding Tyrone Clark at the time of his death were armed also with various blunt weapons. However the prosecution was unable to identify which of those persons who were surrounding Tyrone Clark delivered the fatal blows.
The appellants each have leave to argue that the late Wakerley J. misdirected the jury as to their responsibility for murder in these circumstances. In particular it is submitted that the judge misdirected the jury on what is known as the “fundamentally different” test. Mr Harrison QC presented the principal arguments on this point, arguments to which the other counsel expressed their agreement.
It was the prosecution's case that there had been a long-standing conflict between, on the one hand, Tyrone Clarke, Rafael Lovick and their friends, and, on the other, some youths of Asian origin. It was said that on Tuesday, 20 April, 2004, some of the Asian youths had suffered humiliation at the hands of Clarke and Lovick in a fight in front of young girls and pupils outside the Matthew Murray school. The fight had been impromptu, and there was conflicting evidence as to who had started it. Arshad Younis (Ash) had run off during the fight, and Clarke and Lovick had chased the remaining two, the appellants Rahman and Amin, into the school grounds. The Crown suggested that this incident was the catalyst for the events of 22 April, when at around 4.30 pm a large group of Asian men gathered at Sholay's Takeaway, Beeston. There was evidence that a number of them were armed with a variety of weapons, and that some were hooded or wore balaclavas. The group proceeded to walk into the Beeston Estate where Tyrone Clarke lived. In a ginnel (alley-way) known as the “Rock” five of the group of Asians met and confronted Clarke and Lovick, both of whom had armed themselves with sections of fencing post. On the evidence there was something of a stand-off, a brick was thrown and in the end Clarke and Raphael Lovick turned and ran, pursued by the group of Asians from the “Rock”. On exiting the “Rock” they crossed a road known as Lady Pit Lane, at which point a number of witnesses saw a further group of at least 10 Asians join in the pursuit of Clarke and Lovick. The chase proceeded across Lady Pit Lane and into another ginnel, which ran behind the Brett Gardens Hostel. Clarke ran out of this ginnel across an expanse of grass and was caught by his pursuers outside the back garden gate of No 21 Brett Gardens (a friend's house, where he had sought refuge). There he was surrounded, beaten and kicked. Some, if not all, of the group were carrying weapons of various descriptions, and used those weapons, together with fists and feet, on Clarke. The weapons were sticks, chair legs, pieces of fencing, baseball bats, a cricket bat, a length of metal tubing, and a length of scaffolding pole. One witness (Lovick) said that the co-accused Ali had a knife. There was variation in the evidence as to the number in the group, but, as the jury found, it included the appellants.
Each of appellants said in evidence that he did not have a knife, nor foresee, believe, know or realise that anyone else had a knife. It was their case that the knifeman was acting beyond the scope of any joint enterprise to attack Clarke, so whilst the knifeman might have been guilty of murder, the others were not criminally responsible for that stabbing. Rahman testified that although he had been involved in the confrontation at The Rock ginnel and had started to follow the chase into Brett Gardens, he had never reached the area of No. 21 where the fatal attack took place. This was because he ran, “out of puff”; having sustained an injury to the face caused by a plank of wood wielded by either Clarke or Lovick in the Rock ginnel. Rahman said in evidence that he had never been closer to the actual attack than the electricity sub-station. Akram said that he had not participated in the attack in Clarke in Brett Gardens, and nor had he been there encouraging others to attack Clarke. Akram had been at the rear of No. 21 and had been ready and willing to join the attack on Clarke, but had been frustrated in his intention by the arrival of the police. Amin gave evidence that he had never been anything more than a spectator regarding the events on 22 nd April, 2004. He had never got any further than the ginnel at the rear of the Brett Hostel, where he had been struck on the arm by a brick thrown by Lovick during the chase. Amin, believing his arm to be broken, had gone to hospital. Ali said in evidence that he had been on his way to work when the attack in Brett Gardens had occurred, and that he had approached it from Bismark Street simply out of curiosity. He ran off, following two of those whom he knew were attackers into the compound surrounded by the green fence, which he climbed after the other two, and then on to the roof of 25 Brett Gardens, because he panicked and feared that the police might associate him with the others involved in the incident. He had had no knife. No knife was found on him at the time of his arrest.
We shall return to the facts in a little more detail later when we consider other grounds of appeal.
The judge gave the jury written directions. In so far as material to the issues with which we are concerned they read:
“JOINT RESPONSIBILITY.
Where 2 or more persons join in an unlawful attack on another in circumstances which show that they all shared an intention at least to inflict really serious harm on the victim, and as a result of the attack the victim dies, they are jointly liable for murder. The law is that where 2 or more persons embark on a joint enterprise, each of them may play a different part, but if they are in it together as part of a joint plan or a common purpose, each is liable for the acts done in pursuance of that joint enterprise.
That, you may think, accords with justice and common sense. To take a plain example, 4 men agree to take revenge upon a victim and kill him; 1 may have the loaded gun and kills the victim; 2 others may be there to capture the victim and bring him to the gunman and ensure that the victim does not escape; the 4th may be there as the boss and organiser. Only 1, the gunman, does the act of killing. But all 4 are guilty of murder if they were in the plan together, playing a part and sharing the gunman's intention to kill the victim.
So the prosecution do not have to prove who the knifeman was. The essence of joint responsibility in this allegation of murder is that each defendant shared the intention to commit the offence of murder, i.e. to kill or to cause really serious injury, and took some part in it, however great or small to achieve that aim.
What is meant by “took some part”? Some may take part by actually wielding a weapon on or by kicking or punching Tyrone Clarke at the rear of Brett Gardens; others may have chased and surrounded him to enable others to wield their weapons and prevent his further escape; others may have actively encouraged others to do the violence. The prosecution must make you sure that the Defendant whose case you are considering was at the rear of the houses in Brett Gardens. Mere presence at or very near the scene of the attack, for example as a spectator, is not enough to prove participation. But if you find that a particular defendant was...
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