CN, FN & DW. R.

Where evidence permits alternative routes to prove active participation in a joint attack, the prosecution need not elect between them if either route is capable of proving participation with the required intent. A participant in a fatal joint attack may be liable for murder if the prosecution proves that the participant knowingly joined unlawful violence, knowing that knives would be used, and intended at least really serious harm.

Previous convictions may be admitted as probative of knife possession when assessed with all the evidence. A co-accused’s out-of-court words are evidence only against the speaker. A clear limiting direction will ordinarily preserve trial fairness. Sentencing children requires a youth-focused minimum-term assessment rather than an adult tariff discounted for age.

CN, FN and DW were convicted at the Crown Court at Nottingham of the murder of Esrom Ghide, who died after a group attack in which he sustained multiple stab wounds. The prosecution case was that all five defendants participated in the attack, as stabbers, through other violence, or by encouragement, and that the three convicted defendants shared an intention to cause really serious harm or to kill.

CN and FN appealed their convictions. They challenged the lack of election between alternative prosecution cases, the admission of their previous knife-possession convictions, the use of covert recordings of DW, and the direction on accessory liability. DW appealed his sentence. All three also appealed their minimum terms. The central issues were whether the convictions were unsafe and whether the youth minimum terms were manifestly excessive.

1. The appeals against conviction were dismissed. The prosecution was not required to elect whether CN had participated by kicking the deceased or by passing a knife to DW. Those were alternative evidential routes to active secondary participation, rather than essential elements requiring separate election. The appellants suffered no prejudice in advancing their defences.

2. The previous convictions for carrying knives were properly admitted. Read with the scientific evidence, the earlier threatening incident, the defendants’ arrival together and their participation in violence, they were probative of the central issue whether CN or FN had used or supplied a knife. The jury were properly directed first to decide whether the convictions established a propensity and then to assess their assistance with all the evidence. They were expressly told not to convict solely or mainly on that basis.

3. The covert recordings were admissible against DW but were hearsay and inadmissible against CN and FN. In a multi-handed trial, a co-accused’s account of another’s role does not necessarily require separate trials where the jury receives a proper limiting direction. The judge’s directions were clear. However, the prosecution should not have cross-examined CN by specific reference to the recordings, consistently with Lobban [1995] 1 WLR 877, because that risked suggesting probative value against him. CN made no concession to the recording’s accuracy, and the error did not undermine fairness or render the conviction unsafe.

4. The joint-liability direction was adequate. The jury had to consider each defendant’s unlawful participation, self-defence or defence of another, causation, and intention. If sure of a joint attack in which the defendant knowingly participated knowing knives would be used, the jury could assess the attack and resulting injuries as a whole. If not sure of that, it had to decide what the individual defendant did and whether it was lawful. The direction fully encompassed the principles in R v Jogee [2017] AC 387. No additional direction based on R v Brown [1984] 79 Cr App R 115 was needed.

5. The appeals against sentence were allowed to a limited extent. Under Criminal Justice Act 2003, Schedule 21 paragraph 7, the appropriate starting point was 12 years. Sentencing had to be focused on the young person, not derived by discounting an adult sentence. Despite the grave aggravating features, the minimum terms were manifestly excessive given the appellants’ youth and immaturity. The terms were reduced from 15 to 14 years for CN and FN, and from 18 to 16 years for DW. DW’s higher term had been disproportionate because the findings did not justify differentiating his culpability from that of CN and FN.

• Court of Appeal (Criminal Division) — in [2020] EWCA Crim 1028, dismissed the conviction appeals and allowed the sentence appeals to the extent of reducing the minimum terms.
• Crown Court at Nottingham — convicted CN, FN and DW of murder and imposed detention at HM Pleasure with minimum terms of 15 years for CN and FN and 18 years for DW.