Mendez & Anor v R

In a joint enterprise to cause serious harm, a secondary participant is not guilty of murder if the principal’s deliberate act was both unforeseen and likely to be altogether more life-threatening than the acts the participant intended or foresaw. The comparison concerns the nature and likely use of the act, and the likely injury, rather than a theoretical capacity of any weapon to cause death.

A jury direction must state that issue shortly, clearly and even-handedly. It must fairly identify the evidence on both sides. The jury must acquit if left in real doubt. A judge may leave an evidentially available basis of liability which neither party has advanced, provided that doing so is fair.

The appellants were convicted at Sheffield Crown Court of the murder of Dale Robertson after a group attack. The prosecution alleged that Thompson was the stabber. Both appellants were convicted as secondary parties under joint enterprise.

The judge directed the jury that an unforeseen knife could place the stabbing outside the common purpose only if its use was fundamentally different from the violence envisaged. The jury found Thompson guilty as a secondary party, rather than as the stabber.

On appeal, the central issue was whether the direction fairly and accurately explained when an unforeseen act is sufficiently more dangerous to fall outside a joint enterprise. Thompson also challenged the judge’s decision to leave secondary liability to the jury as an alternative basis of guilt.

1. The appeals were allowed and the murder convictions quashed. The directions on joint enterprise did not fairly and clearly identify the central issue for the jury.
2. Where a common purpose is to cause serious harm rather than to kill, a secondary participant is not liable for murder if the principal’s deliberate act was of a kind which the participant did not foresee and was likely to be altogether more life-threatening than the acts intended or foreseen. This expresses the causative limit on secondary liability. A total and substantial variation by the principal cannot properly be treated as the product of the secondary participant’s assistance or encouragement.
3. The issue is one of degree. The jury should form a broad assessment of the violence and risk of injury which the defendant intended or foresaw. It should then decide, as a matter of common sense, whether the unforeseen act was in a different league because of its likely life-threatening character. The direction should be short, balanced and fact-sensitive. If the jury has a real doubt, it must acquit.
4. The trial judge’s references to the theoretical ability of wood or metal bars to cause death, and his invitation to speculate about how long the attack would otherwise have continued, tended to minimise the distinction between the attack envisaged and the stabbing. The direction did not sufficiently address the superficial nature of the non-knife injuries. Taken as a whole, it was not a clear and balanced direction on the decisive issue.
5. Thompson’s separate complaint failed. A judge may leave an alternative basis of liability arising from the evidence even where neither party advances it, unless that would be unfair. Thompson’s own evidence opened the possibility that he was a secondary party, and there was no unfairness in leaving that issue to the jury.
6. The court declined to grant Mendez leave to pursue the no-case submission, since it was unnecessary after allowing the appeals. Subject to further submissions, it indicated that a conviction for violent disorder might be substituted for Mendez and that the appropriate order for Thompson required further consideration.

• Court of Appeal (Criminal Division) Allowed both appeals against conviction and quashed the murder convictions.
• Sheffield Crown Court On 8 April 2009, convicted both appellants of murder as secondary parties after a 45-day trial before HHJ Goldsack QC.