Ellis & Anor, R. v

In a joint-enterprise murder, a secondary party must participate in the common enterprise and foresee that another participant may act with the intention to kill or cause really serious harm. Knowledge that the other participant has a weapon and may use it with fatal consequences is insufficient unless the required foresight of that participant’s murderous intention is established.

A jury direction may permit an inference of such foresight from the known possession and possible use of a knife in many cases. The inference is not inevitable and does not reduce the elements which the prosecution must prove. A route to verdict must also identify the secondary party’s requisite participation in the joint attack.

At Manchester Crown Court, Anthony Ellis and Kelvin Wilhelm were each convicted of the murder of John Muldowney and sentenced to life imprisonment. The prosecution alleged that Wilhelm inflicted the fatal stab wound and that Ellis was guilty as a joint participant. It also contended that, if the jury could not identify the stabber, each was guilty because both participated in the attack knowing that the other had a knife.

Ellis appealed against conviction. Wilhelm renewed his application for leave out of time, which the court granted. The appeals concerned whether the judge’s directions and written route to verdict accurately stated the requirements for joint-enterprise murder, particularly the non-stabber’s participation and foresight of the stabber’s intent.

1. Appeals allowed. The convictions for murder were unsafe, were quashed, and both appellants were ordered to stand trial again.

2. The correct law was that a joint participant could be guilty of murder only if he participated in the common enterprise and foresaw that another participant might commit murder, namely act with intent to kill or cause grievous bodily harm. The secondary party need not share that intention. It was enough that he knew or realised that the stabber had that intention.

3. The judge’s route to verdict gave an alternative by which the non-stabber could be convicted if he knew that the stabber had a knife and realised that death or really serious injury might result. That alternative omitted the essential requirement that he knew or realised that the stabber would or might use the knife with the intention to kill or cause really serious harm. It also failed to identify the required participation in the joint enterprise.

4. A, B, C and D v The Queen [2010] EWCA Crim 1622 correctly stated the governing principle. Its observation that knowledge of a weapon and its possible use will often support an inference of foresight of murderous intent did not make that inference inevitable. The court clarified that R v George [2011] EWCA Crim 1889 had overstated that observation if read as suggesting that no error in direction arose.

5. Given the confused evidence and the possibility that the jury might have been unsure which appellant stabbed the victim, the court could not conclude that the defective direction made no difference. A fresh indictment was directed. The court also made a reporting restriction under section 4(2) of the Contempt of Court Act 1981 pending the conclusion of the retrial.

• Court of Appeal (Criminal Division): Allowed both appeals in [2013] EWCA Crim 2554, quashed the murder convictions and ordered retrials.

• Crown Court at Manchester: On 7 December 2010, a jury convicted both appellants of murder and each was sentenced to life imprisonment.