Mitchell & Anor, R. v

In a murder case based on joint enterprise, the jury must determine the scope of the enterprise which the secondary party joined, including what that party contemplated or foresaw. Liability does not arise if the principal’s fatal act was fundamentally different from the contemplated violence.

The secondary party must also still have been participating when the fatal injuries were inflicted. Stopping personal violence or changing one’s mind will not normally amount to withdrawal. The party must take steps which demonstrate withdrawal, although the practical requirements in a fast-moving spontaneous incident are matters of fact and degree. Whether events comprise one enterprise or two is resolved through those questions of scope, continuation and withdrawal.

Following a violent disturbance outside a Bradford public house, Andrew Ayres was fatally injured when Carl Holmes stamped on his head. Laura Mitchell, Henry Ballantyne and another defendant were convicted at the Crown Court at Bradford of murder and violent disorder as secondary parties. Mitchell appealed against conviction. Ballantyne renewed an application for permission to appeal his minimum term, and Mitchell also renewed her sentence application.

Mitchell contended that the violence before and after a lull comprised two separate joint enterprises, and that she had neither joined the later enterprise nor remained a participant in any continuing enterprise. The central issue was whether the Recorder’s directions on the scope, continuity and withdrawal from a joint enterprise were correct.

1. Mitchell’s appeal against conviction was dismissed. The Recorder’s directions correctly identified the issues governing secondary liability for murder by joint enterprise.

2. The jury had first to determine the scope of the enterprise which Mitchell had joined. It was entitled to consider what she had expressly or tacitly agreed, and what violence she foresaw or contemplated as a possible incident of the enterprise. The prosecution had to establish that she foresaw that a participant might use force intending to kill or cause really serious bodily injury. It also had to establish that Holmes’s fatal conduct was not fundamentally or radically different from that contemplated violence. This approach accorded with R v Chan Wing-Su [1985] AC 168 and R v Powell; R v English [1999] 1 AC 1.

3. Mitchell could be liable only if the enterprise continued and she remained a party to it when Ayres was killed. Withdrawal required more than a mental change of intention, a cessation of personal violence, or a mere change of location. The participant normally had to take some step demonstrating withdrawal or lack of participation. In spontaneous and rapidly developing violence, the adequacy of the step was a factual question and rigid requirements should not be imposed. The directions were consistent with R v Mitchell & King, R v Robinson and R v O’Flaherty and others [2004] EWCA Crim 526.

4. The supposed distinction between one enterprise and two did not create an additional legal test. It was addressed by deciding the original enterprise’s scope, whether it had ended before the fatal attack, and whether Mitchell was still participating. The Recorder’s separate formulation could assist the jury and did not misdirect it.

5. There was ample evidence from which the jury could find that Mitchell had initiated serious violence, contemplated violence within the requisite scope, remained present and had not withdrawn. The conviction was safe.

6. The renewed applications for permission to appeal sentence were refused. A 17-year starting point properly reflected an unprovoked, group attack involving weapons and resulting in death. The reduction to minimum terms of 13½ years adequately reflected the applicants’ youth, mitigation and secondary participation.

• Court of Appeal (Criminal Division): Mitchell’s appeal against conviction was dismissed. The renewed applications by Mitchell and Ballantyne for permission to appeal their minimum terms were refused.

• Crown Court at Bradford: The Recorder convicted Mitchell and Ballantyne of murder and violent disorder as secondary parties and imposed life sentences with minimum terms of 13½ years.