R v Taalib Rowe & Ors

An alternative verdict should be left only where it is obviously raised by the evidence and doing so would be fair and proportionate. A route to verdict must provide a safe and logically coherent route to each verdict. Where the planned act is a close-range shooting, a secondary party’s intention to assist or encourage the shooting will ordinarily be inconsistent with an intention to cause only some harm rather than really serious harm. Questions should be tailored to each defendant and must not simplify the issues so far that they distort them. For accessory liability, proof that assistance or encouragement was given does not require proof that it had a positive effect on the principal or outcome. An overwhelming supervening act is an exclusion from liability, not an additional causation requirement.

Three defendants were convicted of murder and Taalib Rowe was convicted of manslaughter following the shooting of Kwasi Mensah-Ababio. Rowe appealed his conviction. Karlos Gracia appealed his murder conviction, and Alhassan Jalloh renewed applications for leave to appeal and sought to amend his notice.

The appeals arose from the Central Criminal Court before Her Honour Judge Dhir QC. The issues included whether manslaughter had safely been left as an alternative verdict on the basis of assistance or encouragement to a planned shooting; whether telephone and bad character evidence had been fairly admitted; whether the jury had been properly directed and managed; and whether accessory liability required proof that assistance or encouragement had some effect on the principal’s conduct.

1. Rowe’s appeal allowed. His manslaughter conviction was quashed. The statutory availability of manslaughter as an alternative verdict did not itself justify leaving it to the jury. The alternative had to be obviously raised by the evidence, and the route to verdict had to provide a sensible and secure route to that result.
2. The route to verdict required the jury to find that Rowe intended to assist or encourage another person to shoot the deceased, but did not intend that he suffer really serious harm, while intending that he suffer some harm. Once the planned act was characterised as a shooting, the evidence disclosed no realistic basis for that combination. Although there may be cases where a participant knows that a gun will be used merely to frighten, threaten or hit someone, no such case was left to this jury.
3. The court gave guidance on routes to verdict. The question whether an alternative offence should be left must be decided first. The judge and counsel should address disputed issues openly and as early as possible. The questions should be tailored where necessary to each defendant. Simplicity must not distort the issues, and the same questions should not automatically be used for every defendant.
4. Gracia’s appeal dismissed. The telephone download and call data were admissible evidence relating to the facts alleged and were a permissible response to the misleading impression created by his evidence. The judge was entitled to admit the limited bad character evidence to correct that impression and to admit the relevant third-party evidence. The judge correctly applied the relevant provisions of the Criminal Justice Act 2003 and section 78 of the Police and Criminal Evidence Act 1984. The Lucas direction and summing-up were adequate.
5. The renewed applications and applications to amend were refused. In addressing the proposed new ground, the court explained that under R v Jogee [2017] AC 387, assistance or encouragement need not have a positive effect on the principal’s conduct or the outcome. The requirement that conduct be relevant and capable of acting on the principal’s mind did not create a separate causation test. An overwhelming supervening act is an exclusion from accessory liability, not part of the conduct element.

• Central Criminal Court: Taalib Rowe was convicted of manslaughter; Karlos Gracia and Alhassan Jalloh were convicted of murder.
• Court of Appeal (Criminal Division) [2022] EWCA Crim 27: Rowe’s appeal was allowed and his conviction quashed. Gracia’s appeal was dismissed. The renewed applications for leave and applications to amend were refused.