R v Mark Povey

At the no-case stage, the prosecution case should be assessed at its highest. It should be left to the jury where the evidence provides a proper basis for them to be sure of the defendant’s participation in the alleged joint enterprise. The jury may draw reasonable inferences from circumstantial evidence and reject duress.

Where an assault and an immediately ensuing kidnapping form a continuous course of conduct, participation in the kidnapping may support an inference of participation in the assault. A closely associated kidnapping may also be treated as a substantial aggravating feature while receiving a separate sentence, provided the totality principle is respected. Appellate intervention requires an error of principle or manifest excess.

Following a trial at the Crown Court at Wolverhampton, the applicant was convicted of an offence under section 18 of the Offences Against the Person Act 1861 and of kidnapping. He received concurrent sentences of 15 years and seven years, with a global sentence of 15 years.

After a single judge refused his application, he renewed his application for an extension of time to apply for leave to appeal against conviction and sentence. The conviction grounds concerned the no-case submission and the length of the jury’s deliberations. The sentence grounds alleged an excessive starting point, double-counting, insufficient differentiation from the co-accused, and manifest excess.

The court agreed entirely with the single judge’s reasons and refused the renewed applications for an extension of time to apply for leave to appeal against conviction and sentence.

1. Conviction. At the no-case stage, the prosecution evidence was to be considered at its highest. The judge was entitled to leave the case to the jury because the evidence gave them a proper basis to conclude that the applicant and his co-defendant had participated in a joint enterprise involving the assault and subsequent kidnapping.
2. The applicant admitted being present during the assault and assisting with the kidnapping. The jury was entitled to regard the assault and kidnapping as a continuum, to infer that participation in one extended to participation in the other, and to reject the defence of duress. The applicant’s conduct, injuries, broken glasses, the complainant’s evidence and the surrounding circumstantial evidence provided a sufficient evidential basis for those conclusions.
3. Sentence. The sentencing judge properly approached the section 18 offence within Category A/1 of the relevant guideline. She reduced the 12-year starting point to reflect the absence of premeditation, then restored it to 12 years in light of the serious aggravating features, including the gratuitous and traumatic violence and the applicant’s relevant record.
4. The kidnapping was closely associated with the assault and was properly treated as a substantial aggravating feature. Although there was no Sentencing Council guideline for kidnapping, a seven-year sentence for kidnapping as a standalone offence was justified. Increasing the sentence for the section 18 offence by three years, while applying the totality principle, produced a just and proportionate global sentence.
5. There was no relevant personal mitigation, remorse or willingness to accept responsibility. The sentence was not arguably manifestly excessive or wrong in principle.

1. Court of Appeal (Criminal Division) — In [2022] EWCA Crim 1736, the court refused the renewed applications for an extension of time to apply for leave to appeal against conviction and sentence.
2. Single judge — Refused the applicant’s application, prompting the renewal before the Court of Appeal.
3. Crown Court at Wolverhampton — The applicant was convicted on 30 July 2021 and sentenced on 8 November 2021 to concurrent terms of 15 years for the section 18 offence and seven years for kidnapping.