McLeod & Ors, R v

For secondary liability, foresight that a principal might commit grievous bodily harm with intent is evidence from which intention to assist may be inferred. It is not itself a substitute for intention. A post-Jogee challenge added after an earlier, timely application for leave has been refused requires exceptional leave and proof of substantial injustice.

In sentencing dangerous offenders, a court must assess the seriousness of the offending, prior convictions, future danger and available alternatives before imposing discretionary life imprisonment. In cases of multiple offending, notional sentences should not normally be added mechanically. The ultimate question remains whether the total sentence is just and proportionate.

Seven appellants were convicted or pleaded guilty at Warwick Crown Court to offences arising from two episodes. The first was a sustained nightclub assault causing grave head injuries. The second involved the kidnapping and false imprisonment of Damien Lowe, blackmail of his family, and the intentional severing of Mr Lowe’s finger to reinforce ransom demands.

Lewis Poyser, Ralph McLeod and Yusuf Akbar renewed applications for leave to challenge their convictions for causing grievous bodily harm with intent. They relied principally on the change in the law of joint enterprise following R v Jogee; R v Ruddock [2016] UKSC 8. Several appellants also challenged their sentences, including findings of dangerousness, discretionary life sentences and the application of totality.

The central issues were whether the convictions were unsafe or caused substantial injustice, and whether the minimum terms and life sentences were justified.

1. The renewed applications for leave to appeal against conviction were refused, and the sentence appeals were dismissed. The proposed Jogee ground was advanced only after earlier applications for leave had been refused. Exceptional leave was therefore required, and the appellants had to establish substantial injustice.

2. The trial directions had wrongly treated foresight as sufficient for parasitic accessory liability. Under Jogee, foresight is evidence of an intention to assist, rather than a substitute for that intention. However, the jury’s verdicts and the evidence established participation in the continuing detention, ransom demands and wounding. Given the serious violence used to enforce the blackmail, the inference that each appellant intended really serious harm was irresistible. Compliant directions would not have affected the verdicts, so no substantial injustice arose. The convictions would also have remained safe under the ordinary statutory test.

3. There was ample evidence for the jury to decide whether each appellant had participated in the joint enterprise and whether it included intentionally causing really serious injury if necessary to reinforce the demands. The possibility that other participants had gone beyond the agreed plan was properly left to the jury. The alternative offence under section 20 of the Offences Against the Person Act 1861 was not raised. The severing of the finger necessarily involved an intention to cause really serious harm; the only live issue was participation in that plan.

4. The court upheld the dangerousness findings and discretionary life sentences. The judge had followed the approach in R v Burinskas [2014] 2 Cr.App.R. (S) 45. The seriousness of the offences, the appellants’ records where relevant, and the continuing risk justified life sentences for Lewis Poyser and Ralph McLeod.

5. The court disagreed with any general proposition that committing separate grave offences on bail removes the need to apply totality. Notional sentences for multiple offending should not usually be simply aggregated. Yet the ultimate question was whether the total minimum terms were just and proportionate. On these exceptionally grave facts, they were.

• Court of Appeal (Criminal Division) Refused renewed applications for leave to appeal against conviction and dismissed the sentence appeals.
• Warwick Crown Court The appellants were convicted or pleaded guilty to offences arising from the nightclub assault and the kidnapping, blackmail and wounding of Damien Lowe. Life sentences or determinate custodial sentences were imposed.