Roberts, Stephens and Day
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS |
| Judgment Date | 22 June 2001 |
| Neutral Citation | [2001] EWCA Crim 1594 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 2000/1747/Y4, 2000/2088/Y4 & 2000/2062/Y4 |
| Date | 22 June 2001 |
[2001] EWCA Crim 1594
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Laws
Sir Oliver Popplewell and
Her Honour Judge Goddard Qc (Sitting as a Judge of The Court of Appeal Criminal Division)
No: 2000/1747/Y4, 2000/2088/Y4 & 2000/2062/Y4
MR N BLAKE QC appeared on behalf of Roberts
MR J SAUNDERS QC appeared on behalf of Ian Day MR E FITZGERALD QC appeared on behalf of Marc Day
MR P THOMAS QC and MR M WALL appeared on behalf of the Crown
In February and March 2000 these appellants, Stephen Kenneth Roberts, Marc Steven Day and Ian Peter Day were charged at the Birmingham Crown Court before the Recorder of Birmingham, His Honour Judge Crawford QC on an indictment containing two counts. Count 1 charged all three with the murder of Paul David Gardener on 19th July 1999. Count 2 charged all three with an offence of violent disorder on the same day and relating to the same occasion. On 9th March 2000 Roberts and Ian Day were convicted of murder on count 1. Marc Day was convicted of manslaughter, which had not been charged in the indictment but left to the jury as an alternative. All three were convicted of violent disorder under count 2. On the same day inevitable mandatory sentences of life imprisonment were passed on Roberts and Ian Day. A sentence of five years' imprisonment was passed on Marc Day for manslaughter. Concurrent sentences of 18 months imprisonment were passed on all three appellants for the offence of violent disorder.
All three now appeal against their convictions on count 1 with leave of the single judge. In addition Marc Day renews his application for leave to appeal against sentence.
The appeal in part requires the court to revisit the law of joint enterprise in crime, particularly in relation to a state of affairs where there is scope for supposing that the alleged participants are not at one as regards their intentions for the outcome of the enterprise in question.
Marc Day and Ian Day are cousins and Roberts is an uncle of both of them. Although we must look at some aspects of the evidence in greater detail, the facts of the case may be swiftly collected in outline as follows. The 17th of July 1999 was a Saturday. Marc Day was socialising at the Rumours club. Paul Gardener, the man who was to die, was also present. A minor incident occurred when the deceased, as we will refer to him, was said to have stumbled onto Marc Day. Nothing significant happened however and any difficulty that there was was broken up by the club manager.
The next day, Sunday 18th July, Marc Day was again at the club with Ian Day and Stephen Roberts. The deceased was there also. He was with one Dean Hall. There were no exchanges between the parties. Ian Day left early. Marc Day, Roberts, Kelly Day (she was Marc Days's sister) and a man called Peter Melvyn went to a local chip shop. The deceased and Dean Hall were also at the chip shop.
As the Day party left the shop the deceased started to shout abuse at them. Marc Day proceeded to telephone Ian Day. He arrived in a van or truck. The three appellants went looking for the deceased. They found him sure enough outside a block of flats where Hall's sister Donna lived together with two women who were to be witnesses, Samantha Green and her mother Christine Green. Ian Day proceeded to punch the deceased, probably three times to the head. That caused him to fall backwards. He hit his head on the kerb. Ian Day then kicked him three times to the head, seemingly the right-hand side of the head. Meantime Marc Day was fighting with Dean Hall. Marc Day was knocked to the ground and kicked. Roberts meanwhile had followed Ian Day and then he gave Marc Day a hand. The deceased died as a result of a kick or injury to the left-hand side of his head causing severance of the left vertebral artery which led to a subarachnoid haemorrhage. Eye witnesses said that the blow was either perpetrated by the driver Ian Day or one of the other two. That is the barest summary and we must come back to some of the eye witness evidence having regard to points taken by Mr Blake QC on behalf of Roberts.
The next day having heard about the death all the appellants went to the police. Ian Day later admitted guilt of manslaughter but asserted that he did not have the necessary intent for the crime of murder. Marc Day said he did not go anywhere near the deceased. Roberts said it never occurred to him that someone would be kicked to death. Both Roberts and Marc Day denied kicking the deceased at all. All three appellants gave evidence in their own defence.
As we have indicated Ian Day was to accept that he was guilty of manslaughter. He so accepted explicitly by his counsel before the jury and accepted moreover for his part that all the deceased's injuries had been caused by blows struck by him. By the end of his police interview he had made the limited admission that he had punched the deceased to the ground and on the ground kicked him once.
As between the three appellants the grounds of appeal differ. While it is elementary that the Crown's opening at a criminal trial is not evidence and that of course the shape of the case may change, as indeed it did here, it is useful for clarity's sake to set out a very short passage from the opening in this case which is recorded in the skeleton argument prepared by Mr Thomas on behalf of the Crown:
"If at the end of the evidence you are sure that any defendant was involved in an unlawful assault on Paul Gardener with the intention of causing him really serious injury, and that that assault resulted in Paul Gardener's death, then your verdict will be that that defendant is guilty of murder. Being involved in an assault like this can include delivering blows yourself, or encouraging another to deliver blows, if you have the appropriate intention to kill or cause serious injury. A man is also guilty of murder if he participates in a joint venture, for example beating someone up, realising that in the course of that assault another of the group might use force with intent to kill or to cause really serious harm, and that person does so. So your decisions at the end of the case will depend on what you decide each defendant did: whether or not he was acting jointly with the others: and, if so, what his own intentions were and what he realised about the intentions of those others."
Before coming to the grounds of appeal it is important to see how the matter was left to the jury in the case of each appellant. First the learned Recorder directed the jury that as against each of the defendants on count 1 there were three possible verdicts: guilty of murder, not guilty of murder but guilty of manslaughter, not guilty altogether—see transcript page 6C to D. Next he directed them that the mens rea relied on in this case was not an intent to kill but an intent to inflict grievous bodily harm or really serious injury—7C to E. After that the Recorder proceeded to indicate that the jury should consider the case against each defendant in two alternative ways. They should first decide whether the defendant whom they are considering himself struck the deceased—8A to B. If yes, they should decide whether the blow caused or contributed to the death—8C. If yes, they should decide what was the defendant's intention. If it was to inflict really serious harm he would be guilty of murder. If it was to inflict some harm falling short of really serious harm he would be guilty of manslaughter—8D to E. These directions in our judgment are as a matter of law impeccable in relation to an accusation that an individual defendant killed the deceased quite aside from any question of joint enterprise. Joint enterprise was the second way in which the Recorder invited the jury to consider the case against each appellant. First, he said this:
"The question is this. Are we sure that Paul Gardener's death was nevertheless caused by the carrying out of a common design in which that defendant whose case you are considering took part?
Under this road there are a number of questions for you to ask yourselves. The first is this. Was there a common plan to cause really serious harm to Paul Gardener? A common plan involves more than one person and you would enquire, in relation to each defendant, was he a party to such a plan or agreement? Was this defendant, the one you are thinking about, part of that plan? Where a criminal offence is committed by two or more persons each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty."
Then at 11F to 13B the Recorder said:
"So you would ask yourselves the question, did this defendant, that is to say the one you are considering, intend that really serious harm might result from the carrying out of the common plan? If 'no' then that defendant is not guilty of murder. If 'yes' then there is a final question. Did this defendant, that is to say the one you are thinking about, realise that the person actually inflicting the harm might kill, even though he had no intention to do that, and his intention was to cause really serious harm?
You could only convict a defendant here of murder if you were satisfied so that you were sure that there was a common plan to cause really serious harm to Paul Gardener, that that defendant you are considering was part of the plan and part of the agreement, that Paul Gardener's death was caused in carrying out that common plan and that the defendant you are considering intended that really serious harm might result and...
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