Rafferty v The Crown

A secondary party who has effectively withdrawn from a joint enterprise to use violence may remain liable for the consequences of injuries inflicted before withdrawal. He is not, however, criminally responsible for subsequent acts of the principals merely because a separate joint enterprise, such as robbery, continues.

Where the post-withdrawal act is a deliberate drowning by the remaining attackers, it may constitute a novus actus interveniens. On the unusual facts of this case, no jury could properly find that the drowning did not break the causal connection between the former secondary party’s earlier participation in an assault and the death.

The appellant was tried at Swansea Crown Court with two co-defendants for the murder of Ben Bellamy. The co-defendants were convicted of murder. The appellant was acquitted of murder but convicted of manslaughter and had also pleaded guilty to robbery of the deceased’s debit card.

The prosecution advanced a causation route. It alleged that injuries inflicted before the appellant left the beach had significantly contributed to the deceased’s later drowning. It also advanced a joint-enterprise route, alleging that the appellant had not withdrawn from the continuing violence.

The appeal concerned whether a secondary party who had withdrawn before the fatal act could nevertheless be convicted through the causation route.

1. Appeal allowed. The court quashed the appellant’s conviction for manslaughter.

2. A secondary party who has withdrawn from a joint enterprise to assault may remain liable for the consequences of injuries inflicted before withdrawal. If the victim had died from those injuries after the other attackers stopped, the appellant could have been guilty of manslaughter.

3. Withdrawal, however, meant that the appellant was not criminally responsible for acts committed by the principals after his departure. The fact that he remained involved in a robbery enterprise did not mean that any relevant joint enterprise to use violence continued.

4. The trial judge had wrongly left causation as an independent route to conviction on the basis that the appellant could be responsible only for pre-departure injuries but that the later drowning did not break causation. On the facts, no jury could properly conclude that the deliberate drowning by the co-defendants was anything other than a new and intervening act.

5. The court was fortified by the counterfactual application of the secondary-liability principles in R v Powell and another and R v English [1999] AC 1. Even if the appellant had not withdrawn, the deliberate drowning was, on these unusual facts, fundamentally different from the kicking, punching and stamping that he might have foreseen.

6. The appellant was at most a secondary party to the killing, although he could have been a principal to an assault. His conviction could therefore not be sustained by treating him as a principal killer.

• Court of Appeal (Criminal Division): allowed the appeal and quashed the manslaughter conviction: [2007] EWCA Crim 1846.

• Crown Court at Swansea: the appellant was acquitted of murder but convicted of manslaughter following a joint trial with two co-defendants.