Howard, R v

For liability through joint enterprise, knowledge that others intend to commit an offence, coupled with presence or association, is insufficient. The defendant must participate in the offence, whether by encouragement, being available to assist, or another form of assistance.

A jury must receive directions that allow it to distinguish between knowledge and participation. A conviction is unsafe where a material possibility remains that the jury convicted on knowledge and presence alone, rather than on a finding of participation.

The appellant was convicted at Northampton Crown Court of robbery and sentenced to four years’ detention in a young offender institution. He did not appeal at the time.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, he appealed his conviction. The prosecution alleged that he took part in an attack and theft. His case was that he neither participated in nor approached the robbery.

The central issue was whether the judge’s directions, including the answer to the jury’s question about a defendant who went with others knowing they would commit the offence, adequately explained the participation required for joint enterprise liability.

1. Appeal allowed. The conviction was unsafe and was set aside.

2. The trial judge correctly identified that robbery had been committed, but inadequately directed the jury on joint enterprise. Knowledge that another person intends to commit an offence does not itself make a person guilty merely because that person is present. Liability requires participation, which may take the form of encouragement, being available to assist where appropriate, or some other contribution to the enterprise.

3. The appellant’s complete denial was properly left to the jury: if it might have been true, he was entitled to acquittal. But the directions did not explain what conclusion the jury should reach if it was sure that he had gone towards the robbery but could not be sure that he participated in it.

4. The jury’s question showed that this distinction was material. The judge’s unqualified affirmative answer treated knowledge that the others would commit the robbery as sufficient. Although the judge added that encouragement from a nearby position could suffice, that did not correctly answer the question or supply the required direction on participation.

5. The court could not uphold the conviction because there remained a real, though relatively remote, possibility that the jury had found only that the appellant went down the road knowing what was intended. If so, the jury should have been directed to acquit. The misdirection therefore left open the possibility of a different verdict and rendered the conviction unsafe.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, allowed the appeal and set aside the conviction.
• Crown Court at Northampton: On 13 June 2001, convicted the appellant of robbery by a majority of 11 to 1 and imposed four years’ detention in a young offender institution.