Yemoh & Ors v Regina

In a joint-enterprise killing, withdrawal requires more than a participant turning away shortly before the fatal culmination of a prolonged chase. Where the participant remains party to a venture involving a weapon and the requisite intent or foresight, that conduct cannot amount to withdrawal on the facts found. Sentencing must not proceed on a finding of significant prior planning unless the evidence establishes it. Possession of weapons does not by itself establish the kind of premeditation addressed by Criminal Justice Act 2003, Schedule 21. The absence of such planning required reductions in the minimum terms and extended sentences, although the findings of dangerousness under section 228 remained justified.

The appellants had been convicted at the Central Criminal Court following the killing of a 16-year-old schoolboy. BR and TD were convicted of murder. Yemoh, JB and MW were convicted of manslaughter, with related convictions for violent disorder and, in some cases, other offences.

In an earlier judgment, [2009] EWCA Crim 930, the court dismissed the conviction appeals and applications for leave except TD's application based on fresh evidence. TD relied on alleged telephone-call records in which BR confessed to stabbing the deceased. He contended that this could cause doubt whether he had withdrawn from the joint enterprise.

The court also heard the sentence appeals. The central issues were whether the fresh evidence could establish withdrawal and whether the sentencing judge had wrongly treated the offending as premeditated.

1. TD's application for leave to appeal conviction was dismissed. Assuming in TD's favour that BR had confessed to being the stabber and that the stabbing occurred outside 174 Hammersmith Grove, the jury would nevertheless have been sure that TD had not withdrawn. The jury's murder verdict necessarily meant that TD knew the knifeman had a knife and either shared the relevant intent or realised that the weapon might be used with that intent but continued to participate. On the facts of a long chase, merely turning back near its fatal end could not in law amount to withdrawal.
2. The sentence appeals succeeded in part. The trial judge should not have sentenced on the basis of certainty that the attack had been planned beforehand. The evidence showed that an anticipated one-to-one fight escalated rapidly. The fact that some appellants carried weapons did not necessarily demonstrate the degree of premeditation addressed by Schedule 21 of the Criminal Justice Act 2003.
3. The proper aggravating features were the prolonged chase and attack, the knives and other weapons, the public residential setting, and, for Yemoh, TD and JB, the earlier attack on 17 February. BR and TD had the agreed 12-year starting point. Taking account of the absence of significant planning and their youth, their minimum terms were reduced from 15 to 13 years.
4. The findings that Yemoh, JB and MW were dangerous were upheld. Their antecedents, where applicable, associated offending, age and the grave manslaughter supported extended sentences under section 228 of the Criminal Justice Act 2003. Yemoh's and JB's sentences were reduced to 13 years, comprising nine years' custody and four years' extended licence. MW's sentence was reduced to 11 years, comprising eight years' custody and three years' extended licence.

• Court of Appeal (Criminal Division): In the related main judgment, [2009] EWCA Crim 930, the court dismissed the conviction appeals and applications for leave except TD's adjourned fresh-evidence application. In this judgment it dismissed that application and allowed the sentence appeals to the extent of reducing the sentences.
• Crown Court sitting at the Central Criminal Court: His Honour Judge Moss QC imposed minimum terms of 15 years on BR and TD, and extended sentences on Yemoh, JB and MW under section 228 of the Criminal Justice Act 2003.