Harper v R.

The Court dismissed the conviction appeal. A secondary party’s knowledge or ignorance of a weapon is evidence bearing on intention, but is not a prerequisite to liability for murder or manslaughter. A weapon used during a jointly undertaken violent assault is not, without more, an overwhelming supervening event. Such an event must be one which nobody in the defendant’s position could have contemplated and which relegates the defendant’s acts to history.

An unsolicited and unprompted comment to a prison officer did not engage Code C recording safeguards. Defects in its subsequent recording went to weight rather than admissibility. The Court applied R v Jogee, Ruddock v The Queen [2016] UKSC 8 and rejected the suggested knife-knowledge direction.

The appellant pleaded guilty to affray and, following a joint trial with Cahill in the Crown Court at Newcastle upon Tyne, was convicted of murder and attempting to pervert the course of justice. Cahill admitted stabbing Owen Kerry, who died. The prosecution alleged that the appellant had encouraged or assisted the fatal assault while seeking to strike Mr Kerry with a glass.

She appealed against conviction, principally challenging the admission of an alleged prison confession and the directions on secondary liability. She contended that she could not be liable without proof that she knew Cahill had a knife. She also advanced grounds concerning toxicology evidence and cross-examination. Her renewed application for permission to appeal her life sentence and 18-year minimum term was considered with the appeal.

1. The appeal against conviction was dismissed. The prison officer was the passive recipient of an unsolicited and unprompted comment. She was not investigating an offence and did not question the appellant. The circumstances therefore did not engage Code C safeguards requiring a signed record. Delay in entering the comment on the prison system and destruction of the original note were matters of weight, not admissibility. Any application under section 78 of the Police and Criminal Evidence Act 1984 would have failed.

2. A claim based on incompetent representation requires an unsafe conviction as a consequence. The trial advocate’s decision not to challenge admissibility was not incompetent and, in any event, an exclusion challenge could not have succeeded.

3. The joint-enterprise direction was sound. Under R v Jogee, Ruddock v The Queen [2016] UKSC 8, knowledge or ignorance of a particular weapon is evidence relevant to the secondary party’s intention. It is not a necessary precondition of liability. The prosecution’s later sentencing concession and any sentencing judge’s views could not determine the factual basis of the jury’s verdict.

4. The use of a knife in this jointly undertaken violent confrontation was not an overwhelming supervening event. That concept is confined to an act which no person in the appellant’s position could have contemplated and which relegates the appellant’s conduct to history. The knife was capable of being an escalation of the violence, not an event requiring a separate jury direction.

5. The toxicology evidence was admissible and caused no unfair prejudice. Although advance notice of the proposed cross-examination based on unused material would have been preferable, the questioning was legitimate in light of the appellant’s changed account and did not affect conviction safety.

6. The renewed application for permission to appeal sentence, and the requested extension of time, were refused. The 18-year minimum term was not arguably manifestly excessive.

• Court of Appeal (Criminal Division): In Harper v R [2019] EWCA Crim 343, the Court dismissed the conviction appeal and refused the renewed application for permission to appeal sentence and the extension of time.
• Crown Court at Newcastle upon Tyne: The appellant pleaded guilty to affray, was convicted of murder and attempting to pervert the course of justice, and was sentenced to life imprisonment with an 18-year minimum term.