R v BHV

In a joint-enterprise murder case, foresight that a principal may use serious violence is evidence from which intention may be inferred; it is not a substitute for the secondary party’s intention to assist or encourage murder.

That intention may be conditional. An agreed plan to attack an identified victim does not, as a matter of law, exclude a further conditional intention to use really serious violence against a person who interferes. Whether such an intention can properly be inferred is a fact-sensitive question for the jury, assessed from the whole of the evidence.

The prosecution appealed, with leave under section 58 of the Criminal Justice Act 2003, against a terminating ruling at Newcastle Crown Court.

BHV and two co-accused were tried for murder arising from a planned armed attack on Leon Wardle. Nathaniel Wardle, Leon’s father, intervened and was fatally stabbed by the co-accused. The prosecution alleged that BHV carried an axe for the joint venture.

The trial judge found no case to answer on murder, but left manslaughter and possession of an offensive weapon to the jury. The prosecution contended that the evidence could support an inference that BHV conditionally intended serious violence against anyone who obstructed the planned attack. The central issue was whether that inference was properly available under R v Jogee [2016] UKSC 8.

1. Appeal allowed. The judge’s ruling of no case to answer on murder was wrong. The proceedings were to resume on Count 1, while Count 4 was to continue.

2. Under R v Jogee [2016] UKSC 8, a secondary party to murder must intend to assist or encourage the killing or the infliction of really serious harm. Foresight is evidence from which that intention may be inferred; it is not the mental element itself. The required intention may be conditional and may form part of an express or tacit plan.

3. The existence of a clearly identified intended victim does not create a rule that the venture cannot also encompass a conditional intention to attack another person who gets in the way. The question is whether the prosecution evidence could permit a properly directed jury to find that additional conditional intention. It is not answered by a categorical rule drawn from the identity of the original target.

4. On the evidence, that question was for the jury. Relevant matters included the number of attackers, the foreseeable likelihood of violent resistance at an occupied house, the opportunity to plan during the journey, BHV’s possession of an axe for protection, and the lethal character of the weapons. Those matters could support an inference that the joint plan included using really serious violence if resistance arose.

5. The court applied the approach in R v Anwar [2016] EWCA Crim 551: the reformulation of secondary liability in Jogee does not generally alter the evidential assessment at the no-case-to-answer stage, although the jury must ultimately be directed to decide intention rather than foresight alone.

• Court of Appeal (Criminal Division) — Allowed the prosecution appeal under section 58 of the Criminal Justice Act 2003. It directed that the trial resume on the murder count against BHV.
• Newcastle Crown Court — On 22 November 2022, the trial judge ruled that BHV had no case to answer on murder, but that manslaughter and possession of an offensive weapon should remain for the jury.