N, R. v

Secondary liability in a joint enterprise requires proof that a defendant intended, by presence or other conduct, to assist or encourage the principal offender. Mere presence, even with knowledge that an attack is planned, is insufficient. Deliberate support may include moral support or contributing to the force of numbers in a hostile confrontation.

Written jury directions are normally desirable in complex cases, particularly on joint enterprise. Their absence does not ordinarily make a conviction unsafe without an erroneous or materially confusing oral direction. Exceptionally, the complexity of a direction may itself make written exposition necessary to avoid a material risk of jury confusion.

The appellant was convicted at the Crown Court at Snaresbrook of wounding with intent under section 18 of the Offences Against the Person Act 1861. The prosecution alleged that he either took part in the stabbing of two boys or was a secondary party to it during a gang-related ride-out.

He accepted that he had been in the vehicle but denied knowledge of, or participation in, any planned attack. On appeal, he challenged the judge’s directions on joint enterprise, including the reference to contributing to the force of numbers. He also contended that the absence of written directions rendered the convictions unsafe.

1. Appeal dismissed. The initial oral summing-up did not adequately distinguish mere presence and knowledge of a proposed attack from presence coupled with an intention to assist or encourage it. That distinction was material on the evidence, and the jury’s note demonstrated the resulting uncertainty.

2. The judge’s supplementary direction cured that deficiency. It made clear that neither presence alone nor presence with knowledge alone established guilt. The jury had to be sure that the appellant intended by his presence to help or encourage the attack, whether through moral support or by contributing to the force of numbers.

3. The reference to force of numbers was not a misdirection when read in context. R v Jogee [2016] UKSC 8 recognises that assistance or encouragement can take many forms, including support by contributing to the force of numbers in a hostile confrontation. On the evidence, acting as a driver, facilitating a getaway, or being ready to join an attack as back-up were possible forms of deliberate assistance for the jury to assess.

4. Written directions should ordinarily be prepared and discussed with counsel in a serious and legally complex case. The court reiterated the guidance reflected in the Crown Court Compendium and in R v Atta-Dankwa [2018] EWCA Crim 320 and R v PP [2018] EWCA Crim 1300. Written directions and a route to verdict would likely have improved the precision of the original guidance.

5. Nevertheless, the mere absence of written directions does not normally make a conviction unsafe. The relevant error is an incorrect or materially confusing oral direction. Only exceptionally will a direction be so complex that the lack of written exposition creates a material risk of confusion. Here, the jury identified the precise issue, received a correct oral answer, and sought no further clarification. The absence of a foresight direction also did not prejudice the appellant, since foresight is evidence relevant to intention rather than an ingredient of joint enterprise.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction and held that the corrected oral direction did not render the conviction unsafe.
• Crown Court at Snaresbrook Convicted the appellant on 24 July 2019 of wounding with intent.