Thomas, R. v (Rev 1)

In a joint-enterprise case, mere presence does not amount to participation. The jury must be sure that a defendant assisted or actively encouraged the offence. Participation may nevertheless include contributing to the force of numbers during a hostile confrontation.

An appellate challenge to directions should fail where the summing-up, read fairly, correctly states that distinction and identifies the competing inferences from circumstantial evidence. Under section 29 of the Criminal Appeal Act 1968, the court should consider ordering that time in custody pending determination does not count towards sentence where an application is wholly without merit, so as to deter wasteful renewed applications.

The applicant was convicted at Leicester Crown Court of attempted murder and possession of a firearm with intent to endanger life. He received life imprisonment for attempted murder, with a minimum term of 12 years; no separate penalty was imposed for the firearm count.

He sought a very late extension of time and permission to appeal his convictions. He challenged the directions on circumstantial evidence and his refusal to give evidence. He also contended that the trial judge had wrongly equated presence with participation in a joint enterprise.

The application for permission had been refused on paper by Martin Spencer J. The central issue was whether the summing-up and route to verdict rendered the convictions unsafe, and whether the substantial delay should be excused.

1. The application for an extension of time was dismissed. It was brought 1,545 days late. There was no reasonable explanation for substantial periods of delay, including a 19-month delay before the applicant contacted his solicitors about an appeal and a further year of inactivity after transcripts were obtained.
2. The proposed appeal was wholly unmeritorious. The circumstantial-evidence direction could not be faulted. It had been approved by the advocates before the summing-up, and the judge later identified both the prosecution inferences and the defence arguments against drawing them. The direction concerning the applicant’s refusal to give evidence was also unobjectionable.
3. The joint-enterprise direction correctly reflected R v Jogee [2016] UKSC 8. The trial judge did not equate presence with participation. He directed the jury to decide whether each defendant had assisted or actively encouraged the offences. He also properly explained that participation could take several forms, including providing support by contributing to force of numbers in a hostile confrontation.
4. The route to verdict was not open to sensible criticism. The convictions were therefore not shown to be unsafe.
5. Under section 29 of the Criminal Appeal Act 1968, the court directed that 56 days spent in custody pending determination should not count towards sentence. Such an order should be considered for a meritless application in order to deter renewed applications that waste court time and resources.

Had an extension been granted, permission to appeal would in any event have been refused.

• Court of Appeal (Criminal Division): refused an extension of time to seek permission to appeal against conviction and directed, under section 29 of the Criminal Appeal Act 1968, that 56 days in custody pending determination should not count towards sentence.
• Single judge: Martin Spencer J refused permission to appeal on paper on 5 October 2020.
• Crown Court at Leicester: on 23 March 2016, the applicant was convicted of attempted murder and possession of a firearm with intent to endanger life. On 9 May 2016, he received life imprisonment for attempted murder with a minimum term of 12 years.