Mohammed Saddam Hussain & Ors. v R

In a circumstantial case, a submission of no case to answer fails if a reasonable jury could, on one possible view of the evidence, reject realistic possibilities consistent with innocence and infer guilt. The court need not be satisfied that every reasonable jury would do so.

Secondary liability requires intentional assistance or encouragement and the required intent, which may be conditional. It does not require proof that the assistance or encouragement caused, or made a measurable contribution to, the principal offence. Liability is excluded only where an overwhelming supervening act was beyond contemplation and relegated the secondary party’s conduct to history.

Three applicants were convicted at Worcester Crown Court of murder and conspiracy to rob after Colton Bryan was fatally stabbed by Mohammed Hammad Hussain during a planned attack and robbery. Mohammed Saddam Hussain had also pleaded guilty to perverting the course of justice by helping Hammad leave the country.

Each applicant received a life sentence. Their applications for leave to appeal challenged the refusal of submissions of no case to answer, the jury directions, the safety of the convictions, proposed fresh evidence, and the minimum terms. The central issues were whether the evidence could support shared conditional intent to cause really serious injury, whether Hammad’s conduct was an overwhelming supervening act, and whether the sentences were excessive.

1. The applications for leave to appeal against conviction and sentence, and the applications to adduce fresh evidence, were refused.

2. The trial judge correctly applied the circumstantial-evidence test in R v G and F [2012] EWCA Crim 1756. The question was whether a reasonable jury could, on one possible view of the evidence, reject realistic innocent explanations and infer guilt. The evidence entitled a jury to find that each applicant joined a plan to rob and/or attack Bryan, with a conditional intention that really serious injury would be caused if necessary.

3. The directions on joint responsibility accorded with R v Jogee [2016] UKSC 8 and [2017] AC 387. A secondary party must intentionally assist or encourage the offence, with the mental element required for the offence, but the intention may be conditional. Presence alone is insufficient, although deliberately remaining in or near the car could amount to intentional assistance or encouragement on the evidence.

4. There is no additional requirement that assistance or encouragement make a causal or measurable contribution to the principal’s offence. The relevant requirement is that the secondary party assisted or encouraged the offence, or type of offence, actually committed. An overwhelming supervening act excludes liability only where it was beyond what a person in the defendant’s position could have contemplated and relegated the prior assistance or encouragement to history. The evidence did not require that conclusion.

5. The proposed evidence concerning Hammad’s alleged personality changes and Carpenter’s possible autistic traits did not satisfy the criteria in section 23 of the Criminal Appeal Act 1968. It was either not fresh, incapable of assisting the applicants, or both.

6. Under section 8 of the Accessories and Abettors Act 1861, the applicants could be punished as principal offenders. The judge was entitled to sentence them as equally culpable for the murder. A murder for gain normally attracts the 30-year starting point under Schedule 21 to the Sentencing Act 2020; the reductions for youth and mitigation, and the further adjustments for individual aggravating features, disclosed no error of principle or manifest excess.

• Court of Appeal (Criminal Division): applications for leave to appeal against conviction and sentence, and to adduce fresh evidence, refused.

• Crown Court at Worcester: on 15 February 2021, the applicants were convicted of murder and conspiracy to rob. They received life sentences with minimum terms of 24 years 6 months, 23 years and 25 years respectively.