Gallant, R v

A trial judge must tailor the summing up to the real issues raised by the evidence and the parties’ cases. A complete exposition of withdrawal from a joint enterprise is unnecessary where a defendant denies that any joint enterprise existed and does not contend that he withdrew from one. In any event, an instigator cannot demonstrate withdrawal merely by walking away; withdrawal requires conduct sufficient to show disengagement from further participation.

In a murder trial, manslaughter must be left as an alternative verdict only where there is some evidential basis for it. Where the evidence cannot establish that an individual defendant’s act caused or contributed to death unless a joint attack is proved, the absence of a joint enterprise leaves no evidential basis for either murder or manslaughter.

The appellant was convicted at Hull Crown Court of murder and sentenced to life imprisonment with a minimum term of 17 years. The deceased died after an attack involving CS spray, kicking, stamping and possibly a hammer. The appellant accepted using CS spray and admitted punching and kicking the deceased, but denied an organised attack with his co-accused.

He appealed against conviction on two grounds. First, he contended that the judge had inadequately directed the jury about withdrawal from a joint enterprise if he had left before fatal violence. Secondly, he contended that the judge should have left manslaughter as an alternative verdict. The central questions were whether withdrawal was a live issue and whether the evidence provided a basis for manslaughter.

1. Appeal dismissed. The conviction was safe.
2. The direction on joint enterprise was adequate when read in the context of the issues at trial. Although it did not give a complete statement of the law of withdrawal, the appellant had never asserted withdrawal. He denied that a joint enterprise existed. The real issue for the jury was therefore whether there had been a joint enterprise at all.
3. The court accepted that withdrawal requires a participant to do enough to demonstrate disengagement. On the evidence, if the appellant had joined an attack which he instigated, mere departure from the scene could not demonstrate withdrawal from further participation. The judge was entitled to direct the jury that responsibility could continue if the subsequent violence was a continuation of the same joint attack.
4. The judge was obliged to leave manslaughter only if there was some evidence supporting that alternative. Having examined the medical evidence, he was entitled to conclude that it did not permit the jury to identify any individual injury as causing or contributing to death. The prosecution case could therefore succeed only through a joint enterprise. If the jury rejected joint enterprise, there was no evidential basis for a conviction of either murder or manslaughter.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2008] EWCA Crim 1111.
• Hull Crown Court: convicted the appellant of murder on 9 November 2005 and imposed life imprisonment with a minimum term of 17 years.