O'Flaherty & Ors, R v

In a spontaneous joint enterprise, its scope must be determined from each participant’s knowledge and conduct. A participant is not liable for murder unless the fatal injuries were inflicted while the joint enterprise was continuing and while that participant was still acting within it.

Effective withdrawal before the fatal injuries are inflicted prevents liability for murder. Mere repentance is insufficient, but withdrawal is a factual question of degree. It does not invariably require reasonable steps to prevent the crime, and communication is not essential in spontaneous violence.

The question whether events formed one or two incidents is evidential only. It assists the jury in deciding the scope of the enterprise and whether a defendant joined, disengaged, or withdrew before the fatal injuries.

The three appellants were convicted at the Central Criminal Court before His Honour Judge Barker QC of the murder of Marcus Hall following street violence in Luton. O’Flaherty used a cricket bat, Ryan attempted to strike Hall with a bottle, and Toussaint used and threw a claw hammer in Flowers Way. O’Flaherty then followed Hall and others into Park Street West, where Hall suffered fatal stab and head injuries. Ryan and Toussaint did not enter that street.

The medical evidence did not establish conclusively where the injuries causing death had been inflicted. The judge rejected submissions of no case to answer and directed the jury to consider causation principally if it found two separate events. The appeals concerned the scope of the spontaneous joint enterprise, the use of a knife, withdrawal, and the adequacy of those directions.

1. The appeals of Ryan and Toussaint were allowed, and O’Flaherty’s appeal was dismissed. There was no evidence capable of showing that Ryan or Toussaint participated in unlawful violence causing an injury that significantly contributed to death. Nor was there evidence from which a jury could infer that pursuit to Park Street West formed part of a joint enterprise to which either had acceded. Their cases should therefore have been withdrawn from the jury.

2. In spontaneous group violence, the scope of a joint enterprise is ordinarily inferred from the knowledge and acts of each participant. Following R v Uddin [1999] 1 Cr. App. R. 319, participants may be principals and secondary parties to each other’s violence. But a person who does not join a later pursuit is not, without more, party to the violence which follows it.

3. The judge’s direction on a weapon outside the common purpose was adequate. It was for the jury to decide whether the use of a knife was so different from the contemplated violence that it lay beyond the enterprise. The character of the weapon and foresight of its use were significant evidential matters, not rigid legal categories: see R v Powell and R v English [1999] 1 AC 1.

4. A participant who effectively disengages or withdraws before the fatal injuries are inflicted is not guilty of murder, although earlier conduct may found liability for another offence. Mere repentance does not suffice. The jury must assess whether the conduct sufficiently demonstrated withdrawal, having regard to prior assistance or encouragement, the imminence of the fatal violence, and the action relied on as withdrawal. Timely communication may be required where practicable and reasonable, but is not necessary in spontaneous violence: R v Mitchell and King (1998) 163 JP 75.

5. The distinction between one evolving event and two separate events was relevant only to those questions. The jury should have been directed, even if it found one continuing event, that the fatal injuries had to be sustained while the joint enterprise continued and while the particular defendant remained within it. The omission rendered Ryan’s and Toussaint’s murder convictions unsafe. O’Flaherty’s continued armed pursuit and presence during the attack supplied a sufficient evidential basis, and no reasonable jury could have reached a different conclusion.

• Court of Appeal (Criminal Division) — in [2004] EWCA Crim 526, allowed Ryan’s and Toussaint’s appeals and dismissed O’Flaherty’s appeal.
• Central Criminal Court — His Honour Judge Barker QC convicted all three appellants of murder and violent disorder. O’Flaherty was also convicted of common assault.