R v ARU & Ors

For liability arising from violence between opposing groups, the prosecution must prove a reciprocal agreement to stab and be stabbed, whether made in advance or formed spontaneously. The mere carrying of knives, threats or goading, movement towards a confrontation, or the occurrence of violence does not by itself establish that agreement. The inference requires clear evidence, particularly where the participants’ conduct is consistent with trying to escape rather than engage. The principles concerning consensual armed combat in Gnango and related cases are exceptional and should not be extended to ordinary, spontaneous violence between groups of young males.

The prosecution appealed under section 58 of the Criminal Justice Act 2003 against a Crown Court ruling that ARU, AOC and BHL had no case to answer on charges of murder, attempted murder and alternative offences. The prosecution alleged that the defendants had gone to a public-house car park for a prearranged or spontaneous joint knife fight, and were therefore liable for the fatal stabbing of Habimana and the stabbing of ARU. The Crown Court rejected that case, concluding that the evidence did not support the necessary reciprocal agreement. The central issue was whether a reasonable jury, properly directed and taking the prosecution evidence at its highest, could infer such an agreement.

1. Appeal dismissed and acquittals ordered. The court granted leave to appeal, dismissed the prosecution appeal, confirmed the no-case rulings, and ordered the acquittal of ARU, AOC and BHL on counts 1 to 4 pursuant to section 61(7) of the Criminal Justice Act 2003.

2. Under section 67 of the Criminal Justice Act 2003, the Court of Appeal could reverse the ruling only if it was wrong in law, involved an error of law or principle, or was a ruling which it was not reasonable for the judge to have made. The judge’s task was to ask whether, taking the prosecution evidence at its highest, a reasonable jury could convict. The Crown Court judge had applied that test correctly.

3. Following Gnango [2011] UKSC 59 and Seed and others [2024] EWCA Crim 650, liability based on opposing participants’ violence required an agreement to stab and be stabbed at. The agreement could be made in advance or arise spontaneously. The required reciprocity was an essential feature. In Seed and others, knowledge that the other side was armed and would return fire had to be a virtual certainty before the agreement could be inferred from the circumstances.

4. The evidence did not support that inference. There was no direct evidence of an agreement, no established prior enmity or gang association, no evidence that either group knew the other was armed before the car-park events, and no indication in the messages of an agreement to engage in a knife fight. BHL’s brief pursuit of TC with a knife was not met by an armed response, and the defendants’ group ran away when Athif approached with a knife. Those matters militated against, rather than supported, reciprocity.

5. The prosecution’s interpretation of CCTV evidence concerning ARU went beyond the evidence. The judge was entitled to reject the inference that ARU was trying to remove his knife in order to participate in an agreed knife fight. The contrary conclusion would not have been reasonable on the evidence.

6. Cases in which opposing sides share the necessary common purpose will be rare. Clear evidence is required before ordinary violence between groups, in which knives may be carried and used, is treated as consensual armed combat attracting liability for a resulting death. The exceptional principles in Gnango should not be extended to incidents of the kind in this case.

• Crown Court: The trial judge ruled on 24 July 2024 that ARU, AOC and BHL had no case to answer on counts 1 to 4 and discharged the jury as to them.
• Court of Appeal (Criminal Division): The prosecution obtained leave to appeal under section 58 of the Criminal Justice Act 2003. The appeal was dismissed and the acquittals were ordered under section 61(7) of that Act.