Banfield & Anor, R v

In a joint-enterprise murder prosecution, the Crown must adduce evidence capable of establishing that the defendants acted together at the fatal attack. Where the evidence leaves tenable alternatives that either defendant killed alone in the other’s absence, there is no prima facie case against either.

Motive, animus, opportunity, joint dishonesty after a disappearance, and suspicious post-mortem conduct cannot, without evidence of presence or participation in the killing, prove joint responsibility. Suspicion is not proof.

The appellants, mother and daughter, were convicted at the Central Criminal Court of murdering Donald Banfield, who disappeared in May 2001 and whose body was never found. They had also pleaded guilty to financial deception offences connected with his pensions and the sale of the family home.

The Crown alleged a premeditated joint-enterprise murder. It relied on evidence of earlier hostility and assaults, financial motive, a forged pension instruction soon after the disappearance, and the appellants’ later lies and joint deception. The defence contended that the evidence could not establish whether either appellant, or both, had caused the death.

The central issue was whether, at the close of the Crown’s case, there was evidence from which a jury could properly infer that both appellants had killed together rather than that one had acted alone.

1. The appeals were allowed and the murder convictions quashed. The submission of no case to answer should have succeeded.

2. The case alleged joint-enterprise murder, but there was no body, identified mechanism of death, date, time or place of death, or evidence showing either appellant’s presence at the fatal attack. At the close of the Crown case, the judicial question was whether a jury could infer joint responsibility. The ultimate jury question was whether the Crown had made it sure of that responsibility.

3. The evidence left tenable alternatives: either appellant might have killed alone; either might have killed with the other encouraging; or both might have acted together. The Crown could not establish which of those alternatives the jury could safely exclude. It therefore could not use joint enterprise as a substitute for proof that both appellants were present and acting in concert.

4. Evidence of motive, animus, opportunity, earlier alleged assaults, and joint dishonesty after the disappearance was capable of arousing suspicion. It did not prove presence at, or participation in, the killing. Nor could the practical difficulty of disposing of a body alone prove murder: post-mortem conduct, without more, does not establish guilt for the homicide.

5. The court applied the established principle illustrated by R v Lane and Lane (1986) 82 Cr.App.R 5 and R v Strudwick and Merry [1993] 326. Lies, even coupled with motive, did not establish either appellant’s presence or participation. The Crown’s decision to charge murder rather than conspiracy to murder did not cure that evidential deficiency.

• Court of Appeal (Criminal Division): Allowed both appeals against conviction and quashed the murder convictions: [2013] EWCA Crim 1394.

• Central Criminal Court: On 3 April 2012, following trial before His Honour Judge Beaumont QC, convicted both appellants of murder.