Dreszer, R. v

A secondary party to murder must intend to assist or encourage the principal’s intentional killing or infliction of really serious injury. Foresight that such conduct might occur is evidence from which intention may be inferred, but is not an alternative mental element.

Where a jury was directed on the former foresight basis, the conviction is not automatically unsafe. The appellate court must decide whether it can safely conclude that the jury necessarily convicted on a proper intention basis. A route to verdict must require the jury to determine the scope of the joint plan and the secondary party’s required state of mind. If it permitted conviction solely on foresight and the proper basis cannot confidently be identified, the conviction is unsafe.

The appellant was convicted of murdering a man who had been detained and assaulted in a flat. At a 2013 trial he was also convicted of kidnapping, false imprisonment and preventing a lawful burial. His first appeal against the murder conviction succeeded because later directions had introduced a foresight basis of secondary liability without allowing the defence to address it: [2014] EWCA Crim 2426.

Following an aborted retrial, he was convicted of murder at the Central Criminal Court in January 2016. The judge directed the jury that it could convict as a secondary party either on intention or on foresight that a participant might assault the deceased intending to kill or cause really serious injury.

The appeal asked whether that now erroneous foresight direction rendered the murder conviction unsafe and, if so, whether a further retrial should be ordered.

1. Appeal allowed. The conviction for murder was quashed because the jury may have convicted on an impermissible foresight basis. The court ordered a further retrial for murder, with an alternative count of manslaughter.

2. The direction was wrong under R v Jogee [2016] UKSC 8. A secondary party must intend to assist or encourage the principal’s conduct with the mental element required for murder. Foresight is evidential only; it is not an alternative basis for guilt.

3. The correction of the law did not itself make the conviction unsafe. The question was whether the court could be confident that the jury necessarily found the appellant had the required intention. It could not do so here.

4. The Crown’s argument that affirmative answers to the first three route-to-verdict questions necessarily established murder was rejected. The judge had left the existence and scope of the joint plan to the jury. Those questions were common to murder and manslaughter and did not require a finding that the plan included an intended assault causing death or really serious injury. Question 4 expressly permitted a murder conviction if the appellant merely foresaw that possibility.

5. There was no witness to the killing and the cause and place of death were unknown. Although the evidence could support an inference of intention, the court could not exclude a conviction based on foresight alone. The misdirection therefore made the verdict unsafe. The abuse-of-process, evidential-strength and alleged-unfairness arguments did not alter that conclusion.

6. A further retrial was in the interests of justice. The evidential case appeared strong and the public interest in trying a serious murder allegation outweighed the delay, previous trials and time already served in custody.

• Court of Appeal (Criminal Division): In this judgment, [2018] EWCA Crim 454, the court allowed the appeal, quashed the murder conviction and ordered a further retrial.
• Central Criminal Court: At the retrial, the appellant was convicted of murder on 21 January 2016. No citation for that decision is stated in the judgment.
• Court of Appeal (Criminal Division): The appellant’s earlier appeal against his 2013 murder conviction was allowed because the jury directions had become confused and contradictory after retirement: [2014] EWCA Crim 2426.
• Central Criminal Court: The appellant was convicted in 2013 of murder, kidnapping, false imprisonment and preventing a lawful and decent burial.