Anwar & Ors, R. v

For secondary participation in a planned offence, foresight that another participant might commit a further crime is evidence from which intent may be inferred, but it is not a substitute for the required intent. The prosecution must prove that the defendant intentionally encouraged or assisted the relevant offence, which may include a conditional intention that it be committed if the occasion arises.

On a submission of no case to answer, the court must assess the whole evidential picture. It is unnecessary to prove that each alleged participant was in a particular vehicle, held a weapon, or performed an identifiable role if a properly directed jury could infer shared knowledge and conditional intent from the planning, coordination and events of the joint enterprise.

Six defendants were tried at the Central Criminal Court for attempted murder, conspiracy to rob, and possession of a firearm with intent to commit robbery. The Crown alleged a planned robbery in which a loaded shotgun was brought to the scene and used when the intended victim resisted.

The trial judge ruled that there was no case to answer on attempted murder and the firearm count. He held that the evidence did not reliably identify any particular defendant as present in the vehicle containing the shotgun, as the gunman, or as knowing that the loaded weapon would be used to kill if necessary.

The Crown sought leave to appeal the terminating rulings under the Criminal Justice Act 2003. The central issue was whether the evidence of coordinated planning, movements, communications and the shooting was capable of supporting the necessary inference of shared conditional intent.

1. The Crown's appeal was allowed. The judge's terminating rulings involved an error of law or principle and were not rulings it was reasonable for him to make.

2. R v Jogee, Ruddock v The Queen [2016] UKPC 7 did not impose a higher evidential threshold for a case to answer. A secondary party must intentionally encourage or assist the relevant offence. The required intention may be conditional. Foresight that the principal might commit the offence remains evidence from which the jury may, in an appropriate case, infer that conditional intent.

3. The correct question was whether a reasonable jury could be sure that each defendant participated in a plan to rob the victim, knowing that a loaded shotgun formed part of the enterprise and intending that it be discharged with intent to kill if its use became necessary. That issue had to be assessed from the full factual matrix.

4. There was evidence of substantial planning and coordination, including the luring of the victim, communications, movements to and from the scene, and conduct during the attack. The exhortation to fire the weapon was capable of showing that a participant outside the vehicle containing the shotgun knew that it was loaded and could be used. A jury could infer that the planned use of the weapon was known to all participants, without reversing the burden of proof.

5. The judge erred by treating proof that a particular defendant was in the vehicle containing the shotgun, possessed it, or played an identified role as necessary. Exact attribution of a role was unnecessary if participation in the joint plan and the necessary inferences were capable of proof. The proceedings in the Crown Court were ordered to resume under section 61(4) of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division) Allowed the Crown's appeal under the Criminal Justice Act 2003, reversed the terminating rulings, and ordered the Crown Court proceedings to resume.
• Central Criminal Court At the continuing jury trial, His Honour Judge Pontius QC ruled that there was no case to answer on attempted murder and possession of a firearm with intent to commit robbery. The conspiracy to rob count continued.