Writtle v Director of Public Prosecutions

In a common-enterprise case, liability does not require foresight of the precise events or weapon used. It is sufficient that the defendant intended or foresaw conduct falling within the scope of the criminal enterprise and participated in it. A fundamental departure from the contemplated enterprise remains a question for the jury.

Participation may be established by active encouragement or support, including conduct forming part of a joint attack. Mere presence or passive approval is insufficient. Under section 34 of the Criminal Justice and Public Order Act 1994, the relevant question concerns a defendant’s late reliance on an account or defence which could reasonably have been advanced earlier, rather than silence itself.

The supplied judgment text concerns appeals by four defendants convicted of murder and related offences arising from a planned group attack. The prosecution relied principally on common enterprise. The defendants argued that the fatal use of knives was unforeseeable, that individual participation in the stabbing had not been proved, and that the jury directions on common enterprise and section 34 of the Criminal Justice and Public Order Act 1994 were defective.

The judgment also considers challenges to lengthy minimum terms of imprisonment. The central issues were whether the evidence supported liability for murder through common enterprise, whether the directions were fair and accurate, and whether the sentences were wrong in principle or manifestly excessive.

1. Common enterprise. The precise sequence of events need not have been foreseen. The relevant question was whether the conduct fell within what each defendant intended or foresaw when participating in the criminal enterprise. The use of knives could therefore fall within the enterprise even though the defendants had not specifically foreseen that the pursued men would obtain knives from the restaurant kitchen ([22]–[25]).
2. A clear prima facie case existed that the pursuing group shared an enterprise to attack and injure the rival group. Whether the use of sharp weapons represented a fundamental departure from that enterprise was a question for the jury, applying R v Powell and English [1999] 1 AC 1 ([23]–[25]).
3. Individual participation did not require proof that a defendant had stabbed the deceased, held him down, or acted with the specific purpose of facilitating that particular attack. The evidence permitted the jury to regard the events as a joint attack rather than independent assaults ([25]).
4. Mere presence was insufficient, but active participation could include encouragement or support by deed or word. In the circumstances, pursuit into the confined area and an assault by one member on one victim could encourage assaults by others on the rival group ([26]–[28]).
5. The judge’s directions on common enterprise and the steps-to-verdict document were sufficiently accurate. A possible ambiguity in the alternative manslaughter direction could not undermine the murder convictions, since the jury convicted of murder ([29]–[36]).
6. Section 34. The section concerns the late advancement of an account or defence which could reasonably have been given earlier. It does not remove the right to remain silent or shift the burden of proof. Directions should ordinarily identify specifically what was newly relied upon, although the compendious direction in this case did not cause unfairness because the defendants had given detailed accounts at trial which could have been given in interview ([41]–[49]).
7. The omission to refer expressly to one defendant’s fear as a possible reasonable explanation for his silence was not fatal, since the jury was otherwise given the relevant evidence and could not have misunderstood its significance ([50]).
8. The convictions and sentences were safe. The appeals against conviction and sentence were dismissed. The proper sentencing basis was participation in planned group violence intended to cause grievous bodily harm, in which an unidentified participant intended to kill and did so ([52], [57]–[61]).

The supplied judgment text records appeals in the Court of Appeal Criminal Division. The appeals against conviction and sentence were dismissed.