R v Stewart (Benjamin James)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOBHOUSE,or,MR JUSTICE TURNER |
| Judgment Date | 10 November 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J1110-13 |
| Docket Number | No: 93.0930/X3 (Stewart) |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 November 1994 |
[1994] EWCA Crim J1110-13
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Hobhouse Mr Justice Turner and Mr Justice Wright
No: 93.0930/X3 (Stewart)
93/0931/X3 (Schofield)
MR H. HUSSAIN QC & MR P.CATTAN appeared on behalf of the Appellant Stewart
MR D.FARRER QC & MR G.MCDERMOTT appeared on behalf of the Appellant Schofield
MR G.TATTERSALL QC (MR HUTCHINGS 10.11.94) appeared on behalf of the Crown
Thursday 10th November 1994
The judgment I am about to read is the judgment of the Court.
APPEALS AGAINST CONVICTION
In R v Reid, 62 Cr App R 109 at 112, Lawton LJ delivering the judgment of the Court said:
"When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use the weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter."
It has been argued on behalf of the appellants in this case, with the support of the authors of Smith & Hogan Criminal Law, 7th edition, at page 146, that this statement of the law cannot stand with other decisions of the Court of Appeal and should not be regarded as good law.
The appellants Barry Schofield and Heather Stewart stood their trial in the Crown Court at Manchester before Morland J and a jury. The indictment had originally charged three defendants, Wayne Lambert, Barry Schofield and Heather Stewart with the murder of Mr Dada. The second count had charged those three defendants with the robbery of money from Mr Dada. Before the trial Wayne Lambert pleaded guilty to both counts and Barry Schofield and Heather Stewart pleaded guilty to the robbery count. Accordingly Barry Schofield and Heather Stewart only stood trial upon the murder count. The jury acquitted them of murder but found them guilty of manslaughter. With the leave of the single judge they appeal against their convictions of manslaughter.
On the evening of Thursday 23rd January 1992, Mr Dada, a 60-year-old Pakistani, was in his shop, the Popular Delicatessen, in Wilmslow Road, Withington. During the early evening two young women, Dawn Rothwell and Heather Stewart, went into the shop. They bought some cigarettes. Whilst there, Heather Stewart noticed Mr Dada removing some money from the till and putting it into his pocket. After they had left the shop and were walking along the road they met Wayne Lambert who was known to Heather Stewart. He was driving a car and Barry Schofield was with him. Heather Stewart told them about what she had seen in the shop and suggested that they should rob Mr Dada of the cash which they had seen him put in his pocket. They agreed. The four of them then drove back to near the shop, where Wayne Lambert, Barry Schofield and Heather Stewart got out. Dawn Rothwell stayed in the car and did not take any further part. There was evidence that the trio took out of the car a scaffolding bar and a knife. Wayne Lambert put on a balaclava and a long coat. Whilst Barry Schofield kept watch outside, the other two went into the shop. On the evidence that the jury must have accepted, Wayne Lambert had the bar and Heather Stewart had the knife. The upshot was that Mr Dada was viciously beaten with the bar and seriously injured and a relatively small amount of cash was stolen from him. He died a few days later in hospital as a result of the injuries he had received; these included four skull fractures. The money taken from Mr Dada was less than £100 cash. After the incident the three ran off to the car where the money was divided up.
Both Heather Stewart and Barry Schofield had answered questions at interview but only Heather Stewart gave evidence at the trial. Barry Schofield had admitted knowledge of the weapons with which Wayne Lambert and Heather Stewart were armed. Heather Stewart said she did not know but the jury must have disbelieved her. They both said that they had not contemplated that Mr Dada would be more than threatened. They did not know at that time that Wayne Lambert was a person who was deeply motivated by racial hatred or would be liable to use such excessive violence. The Judge summarised his character in this way in the summing-up:
"Let us for a moment consider what you know about Wayne Lambert. You saw him produced in the dock, a tall powerfully built man; a man you may think with an evil, senseless, savage hatred for members of the Pakistani community; a man who in the commission of crime is quick to inflict terrible injuries on his victims; a domineering and threatening personality."
The case of the two defendants at the trial was therefore that they were not to be associated with the killing of Mr Dada by Wayne Lambert. They said it went far beyond anything that they had contemplated or that they had any reason to contemplate. His attack on Mr Dada was motivated not by the needs of the robbery but by vicious racial hatred and was so excessive that it did not form part of any joint enterprise upon which the three of them were engaged. They said that the jury should not be satisfied that they were parties to the unlawful killing of Mr Dada.
In his summing-up the Judge dealt with the issues in this way:
"There is no dispute that Barry Schofield and Heather Stewart were parties with Wayne Lambert in a joint criminal enterprise to rob Mr Dada in his shop. Let us consider the case of murder in relation to Barry Schofield and Heather Stewart separately as we must.
Barry Schofield's case is that although he knew that Heather Stewart was armed with a kitchen knife and Wayne Lambert was armed with a piece of scaffolding bar, he was never agreeable to the use of either weapon to inflict any injury on Mr Dada. The knife and the piece of scaffolding bar were only to be used to frighten Mr Dada. You could only convict Barry Schofield of murder if you were sure that Barry Schofield's case was false and were sure that as a part of the joint criminal enterprise Barry Schofield was agreeable to Wayne Lambert striking Mr Dada with a piece of scaffolding bar with specific intention of either killing him or doing him really serious bodily injury.
Heather Stewart's case is that she did not carry a knife. She did not know that Wayne Lambert was armed with a piece of scaffolding bar. She was never agreeable to the infliction by Wayne Lambert of any bodily injury upon Mr Dada and indeed was horrified when she saw him strike Mr Dada with a piece of scaffolding pole. She expected the robbery to be effected by Wayne Lambert holding Mr Dada whilst she extracted the money from his pocket. You can only convict Heather Stewart of murder if you were sure that Heather Stewart's case was false and were sure that as [a] part of the joint criminal enterprise Heather Stewart was agreeable to Wayne Lambert striking Mr Dada with the piece of scaffolding bar with the specific intention of either killing him or doing him really serious bodily harm.
If you find murder unproved against either Schofield or Stewart or both of them, you must return a verdict of not guilty of murder and then consider whether manslaughter is proved against either or both of them.
Let us consider the case of manslaughter in relation to [Barry] Schofield and Heather Stewart, again separately as you must. Manslaughter is committed if a person is unlawfully fatally injured by another who at the time of inflicting the fatal injuries appreciates that his victim may suffer some bodily injury, albeit not necessarily serious injury. Manslaughter is an alternative offence to murder and a lesser offence than murder.
You could only convict Barry Schofield of manslaughter if you were sure that as part of the joint criminal enterprise he was agreeable to, or realised that, or if he had thought about it must have realised that Wayne, Lambert might, in the heat of the moment or in the excitement or tension of the occasion, strike Mr Dada with a piece of scaffolding bar and inflict some bodily injury on him.
You could only convict Heather Stewart of manslaughter if you were sure that she was armed with a kitchen knife and she knew that Wayne Lambert was armed with a piece of scaffolding bar, and you were sure that as part of the joint criminal enterprise she was agreeable to or realised, or if she had thought about it must have realised, that Wayne Lambert might, in the heat of the moment or in the excitement or tension of the occasion, strike Mr Dada with the piece of scaffolding bar and inflict some bodily injury on him."
It is acknowledged that the summing-up of the Judge was both balanced and fair. But it is submitted on behalf of both appellants that the direction on manslaughter was wrong in law. Before the jury retired the Judge gave them written directions which corresponded to the directions which I have read out.
The primary ground of appeal of the appellants is:
"Having regard to the decision of the Court of Criminal Appeal in R.v. Anderson and Morris [1966] 2 QB 110 and notwithstanding the subsequent authority of R.v. Reid (1975) 62 Cr App R 109, it is not open to a jury which acquits a secondary party of murder to convict him of manslaughter in the alternative, where the principal is...
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