Nedrick -Smith v Director of Public Prosecutions

A person may be criminally liable as a party to a joint enterprise without entering the premises, striking a blow or actively encouraging the offence while it occurs. Liability may arise where the person joined an agreement involving the victim, foresaw that violence was likely, facilitated the enterprise and failed to withdraw after becoming aware that violence was taking place. The same facts may also establish aiding and abetting, although the charge should make the basis of liability clear.

The appellant appealed against her conviction by Wolverhampton Magistrates for assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861. She had driven three women to the victim’s home. They assaulted the victim, while the appellant remained initially in the car, later watched the attack from the doorway and did not intervene or withdraw.

The magistrates stated whether criminal liability could arise where the defendant neither entered the premises, struck a blow nor actively encouraged the assault. The issue before the Divisional Court was whether the findings supported liability as a participant in a joint enterprise.

1. The appeal was dismissed. The magistrates were entitled to convict the appellant as a party to a joint enterprise.

2. A defendant need not enter the premises, strike a blow or provide active encouragement during the offence to be criminally liable as a participant in a joint enterprise. The relevant question was whether she was party to an agreement to go to the victim’s home to sort matters out, and whether violence was a reasonably foreseeable consequence of that enterprise.

3. The findings provided sufficient evidence. The appellant knew of the earlier incident, drove the others to the victim’s home, saw one participant attack the victim, saw the others join in, approached the house and watched the assault without attempting to stop it or withdraw. The magistrates were entitled to conclude that she foresaw violence and remained party to the enterprise after becoming aware that violence was occurring.

4. The court also accepted that the facts supported liability on an aiding and abetting analysis. The principles governing aiding and abetting and joint enterprise had much in common, as recognised in R v Bryce [2004] 2 Cr App R 592. Although the appellant was charged as a principal, rather than as an aider and abettor, the distinction did not affect the result. It would nevertheless have been preferable for the charge to state the basis of liability clearly if aiding and abetting were relied upon.

• High Court (Administrative Court): dismissed the appeal against the conviction by Wolverhampton Magistrates on 13 June 2006.