Willett & Anor v R.

An accessory to a murder committed during a joint criminal enterprise must be proved to have participated by deliberate and positive encouragement after foreseeing that the principal might commit the further crime. Mere presence in a vehicle, continued participation in an escape, or failure to dissent does not itself amount to encouragement.

Where the evidence identifies a particular act capable of constituting encouragement, the jury must be directed that it is the necessary basis for conviction. A murder conviction is unsafe if the directions permit conviction merely on an insufficient basis. An alternative verdict may be substituted only where the statutory conditions are met.

At the Central Criminal Court, Tommy Willett was convicted of murdering Balbir Matharu. His brother, Albert Willett, drove the vehicle which ran over and dragged Mr Matharu while the brothers were escaping after an attempted theft. Tommy was the passenger.

Tommy appealed against conviction. The prosecution relied on his alleged participation in the escape, including evidence that he had joined a threat to run the victim over. Albert appealed against the 27-year specified minimum term imposed for murder.

The central issue on Tommy’s appeal was whether there was sufficient evidence of encouragement and whether the jury had been directed that mere presence in the vehicle could not establish it.

1. The appeals were allowed. Tommy Willett’s murder conviction was quashed as unsafe. Albert Willett’s specified minimum term was reduced from 27 to 25 years.

2. There was no evidential basis for an advance agreement to injure a person encountered during the attempted theft. Tommy could not have foreseen the risk to Mr Matharu until the vehicle approached the exit and Mr Matharu became visible.

3. Once that occurred, a jury could find that Tommy foresaw that Albert might drive at Mr Matharu and continue while he was not clear of the vehicle. But liability as an accessory required continuing participation by encouragement. Tommy’s remaining in the passenger seat, without more, was not capable of amounting to encouragement. The rapid events made it unrealistic to treat his failure to leave the vehicle or remonstrate as encouragement.

4. The evidence that Tommy had joined the threat to run Mr Matharu over, if accepted, was capable of proving deliberate and positive encouragement. It therefore justified leaving the case to the jury. The judge’s reference to tacit encouragement, however, wrongly risked treating continued presence as sufficient. The directions did not make clear that the jury could convict only if sure that Tommy had joined the threat before Albert drove on.

5. The court could not substitute unlawful-act manslaughter under section 3(1) of the Criminal Appeal Act 1968. The murder verdict did not necessarily establish every fact required for that alternative offence. The court proposed to consider whether to order a retrial after written submissions.

6. For Albert’s sentence, murder committed to facilitate escape from theft could properly be treated as committed for gain under paragraph 5(2)(c) of Schedule 21 to the Criminal Justice Act 2003. A 30-year starting point was appropriate, but mitigation justified a 25-year minimum term. The additional two years for an earlier drug sentence should not have been added.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 1620, Tommy Willett’s conviction appeal was allowed and the murder verdict was quashed as unsafe. Albert Willett’s sentence appeal was allowed to the limited extent of reducing the specified minimum term from 27 to 25 years.
• Central Criminal Court: Tommy Willett was convicted of murder. Albert Willett received a specified minimum term of 27 years under section 269(2) of the Criminal Justice Act 2003.