Towers & Anor v R

On a Criminal Cases Review Commission reference founded solely on a subsequent change in the law of secondary liability, the substantial injustice test is distinct from the ordinary test of safety. It imposes a substantially higher threshold. The court will principally assess whether the legal change would in fact have made a difference, while considering other relevant matters.

Foresight remains evidence from which an intention to assist or encourage the intentional infliction of grievous bodily harm may be inferred. Inferences may be compelling where a defendant joins armed violence, actively associates himself with the attack, and shortly afterwards participates in further violence with the required intent.

Where no adverse inference from silence is properly available, the judge must make that clear. The adequacy of the direction depends on the summing-up as a whole.

At Newcastle upon Tyne Crown Court, Jordan Towers, Anthony Hawkes and a third defendant were convicted of murder and wounding with intent after two linked street attacks. Towers was aged 16. He participated in violence against the murder victim, but the fatal wound was inflicted by Hawkes or the third defendant. Hawkes stabbed the second victim.

Towers’ earlier conviction appeal had failed: [2008] EWCA Crim 2194. The Criminal Cases Review Commission later referred his murder conviction following the change in joint-enterprise law in R v Jogee, Ruddock v The Queen [2016] UKSC 8 and its application in R v Johnson [2016] EWCA Crim 1613. It also referred Hawkes’ sentence on the issue of remand credit.

The central issues were whether the change in law caused Towers substantial injustice, whether the summing-up on his silence rendered either conviction unsafe, and the correct remand credit for Hawkes.

1. Towers’ appeal against conviction was dismissed. The court held that a change-of-law reference under section 16C of the Criminal Appeal Act 1968 requires substantial injustice, not merely the ordinary safety inquiry. That is a high threshold. The principal question is whether the change would in fact have made a difference, although other relevant considerations may also be taken into account.

2. The court applied the principles in R v Jogee, Ruddock v The Queen [2016] UKSC 8. Secondary liability requires intentional assistance or encouragement of the principal acting with the mental element required for the offence. Foresight is evidence of that intention, not its legal substitute.

3. There was no substantial injustice on the facts. The jury had necessarily found that Towers joined unlawful violence while knowing that those involved were armed and foreseeing really serious harm. The court also relied on his active association with the attack, including throwing a paving slab, and his participation shortly afterwards in the attack on Thompson with an intention to cause grievous bodily harm. Those matters supported an inference of the requisite intention despite the erroneous foresight direction then permitted by the former law.

4. Towers’ youth did not alter that conclusion. A possible case based on peer pressure required evidence. Sentencing guidance and the Crown Court Compendium could not supply evidence which had not been given.

5. The application to add a ground concerning adverse inferences was refused. The judge had complied with section 35 of the Criminal Justice and Public Order Act 1994. Having accepted that no adverse inference should be drawn, the judge’s directions, read as a whole, made clear that Towers’ silence could not be treated as probative of guilt. Any irregularity did not affect the safety of either conviction or the Jogee ground.

6. Hawkes’ sentence appeal was allowed to a limited extent. His minimum term was varied to 16 years less 169 days spent on remand.

• Court of Appeal (Criminal Division): Towers’ appeal against conviction was dismissed. Hawkes’ minimum term was varied to allow 169 days’ remand credit.
• Criminal Cases Review Commission: Referred Towers’ murder conviction under section 9 of the Criminal Appeal Act 1995 following the change in joint-enterprise law, and referred Hawkes’ sentence on remand credit.
• Court of Appeal (Criminal Division): Towers’ earlier applications for leave to appeal against conviction were refused: [2008] EWCA Crim 2194.
• Crown Court at Newcastle upon Tyne: Towers, Hawkes and Curtis were convicted of murder and wounding with intent on 31 October 2007.