Miah & Ors, R. v

A participant in a joint criminal enterprise may be liable for a killing where the violence used was within the scope of what that participant intended or foresaw when joining the enterprise. The precise sequence by which a weapon became available need not have been foreseen. Liability is excluded only where the act was a sufficiently fundamental departure from that contemplated.

Mere presence is insufficient, but active encouragement or support by deed or word may establish participation. In a concerted group attack, participation in violence against one victim may encourage violence against another.

Under section 34 of the Criminal Justice and Public Order Act 1994, the relevant question is whether a defendant advanced at trial an account which could reasonably have been given in interview, rather than whether the defendant remained silent.

Four appellants were convicted after a jury trial of murder, wounding with intent and assault occasioning actual bodily harm. They had travelled as part of an armed group to find a rival group. During the ensuing pursuit and confined-area fight, one rival sustained fatal multiple sharp-force injuries and another was seriously injured.

The Crown case against the appellants principally depended on common enterprise. Each appellant had said little or nothing in police interview, but gave a detailed account at trial. The trial judge gave directions on common enterprise and on section 34 of the Criminal Justice and Public Order Act 1994.

The appellants challenged the safety of their convictions. Two also appealed their minimum terms for murder. The central issues were whether the case should have been withdrawn from the jury, whether the directions were defective, and whether the sentences were excessive.

1. The appeals against conviction were dismissed. There was a clear prima facie case that those who pursued the rivals into the store room and yard shared a common enterprise to attack and injure them. The jury could find that grievous bodily harm by whatever weapons came to hand, including sharp weapons, was contemplated. It did not matter that the appellants could not have foreseen the precise route by which kitchen knives became available.
2. Applying the principles explained in R v Powell and English, [1999] 1 AC 1, whether the violence was a fundamental departure from the intended or foreseen enterprise was for the jury. The evidence did not compel the conclusion that it was. The events were capable of being treated as a joint attack on the rival group, rather than separate and independent assaults on two individuals.
3. The common-enterprise direction was adequate. Mere presence was expressly excluded as sufficient. The direction properly required active encouragement or support by deed or word. On the evidence, the pursuit and assaults by members of the attacking group were capable of encouraging further violence by others.
4. The section 34 direction was undesirably compendious, and the judge should ideally have identified separately the detailed exculpatory accounts first advanced at trial. Section 34 concerns the late presentation of an account which could reasonably have been given earlier; it does not penalise silence itself. Here, each appellant had advanced a detailed narrative only at trial. A fuller direction would probably have been more damaging, and the omissions caused no unfairness or unsafe conviction.
5. The sentence appeals were dismissed. The proper sentencing basis was an intended infliction of grievous bodily harm, not a proved individual intention to kill. In a planned and armed episode of group violence, death is a foreseeable grave consequence. The minimum terms of 17 years for Miah and 14 years for Nanthakumar were neither wrong in principle nor manifestly excessive.

1. Court of Appeal (Criminal Division) — dismissed the appeals against conviction and sentence: [2009] EWCA Crim 2368.
2. Trial court — not identified in the judgment. A jury convicted the four appellants of murder and related offences; the trial judge imposed the challenged minimum terms.