R v BXQ

For offences involving grievous bodily harm, a secondary participant may have a case to answer where the evidence permits a jury to find that he joined a single continuing attack which, taken as a whole, caused really serious injury. That remains so even if the most serious injury was inflicted before he joined, provided he contributed to the totality of the injuries and the necessary intention is supported by the evidence. The position differs where the evidence leaves only separate attacks: one attacker inflicted the grievous bodily harm while acting alone, and the later participant caused or contributed only to comparatively minor further injury. On a submission of no case to answer in a circumstantial case, the question is whether a reasonable jury could draw the adverse inference on one possible view of the prosecution evidence taken at its highest.

The prosecution applied for leave to appeal under the Criminal Justice Act 2003, section 58, against a ruling that the respondent had no case to answer on alternative counts under sections 18 and 20 of the Offences Against the Person Act 1861. The prosecution alleged that BXQ and C jointly assaulted A, causing really serious injury, although C could not be located and BXQ stood trial alone.

The trial judge rejected the prosecution case that the evidence could support joint participation from the outset. He also rejected the alternative case that BXQ was legally responsible for the grievous bodily harm after joining a continuing attack which had begun with C’s blow. The central issues were whether a reasonable jury could infer participation in the attack and whether a participant joining after the initial serious injury could still be responsible for the totality of injuries.

1. Appeal allowed. The court granted leave, reversed the ruling that there was no case to answer, and ordered that proceedings on both charges could resume in the Crown Court under section 61(4) of the Criminal Justice Act 2003. In practical terms, a fresh trial was directed.
2. For a circumstantial prosecution case, the judge must ask whether a reasonable jury, not every jury, could on one possible view of the evidence, taken at its highest and properly directed, draw the adverse inference relied upon. If so, the case must continue: R v Turnbull [1997] QB 224; R v G and F [2012] EWCA Crim 1756.
3. Where D1 and D2 are charged with causing or inflicting grievous bodily harm, there is a case to answer if the jury could be sure that they were joint participants throughout, whether as joint principals or as principal and secondary offender, and that the victim sustained really serious injury, subject to sufficient evidence of the necessary intention.
4. There is no case for D2 to answer in respect of the really serious injury where no reasonable jury could exclude the possibility that D1 inflicted it while acting alone, in an entirely separate attack, and D2 caused or contributed only to comparatively minor further injury. But where the evidence permits a finding of one continuing attack, begun by D1 and joined by D2, which as a whole caused really serious injury, D2 may be responsible for that injury even if the most serious injury was inflicted before D2 joined. That follows from R v Grundy 89 Cr App R 333 and R v P [2003] EWCA Crim 1561.
5. On the evidence, the jury could infer that BXQ intended violence, was not surprised by C’s attack, and participated in an arranged joint assault. Alternatively, the jury could find that BXQ joined immediately after the first blow in a single continuing attack and thereby contributed to the totality of the injuries. The judge therefore fell into an error of law or principle, or made a ruling which it was not reasonable to make, within section 67 of the Criminal Justice Act 2003.

The court also disapplied the reporting restriction in section 71 of the Criminal Justice Act 2003 sufficiently to permit publication of the anonymised judgment, while retaining the prohibition on identifying those involved. BXQ remained on bail and was required to attend the Crown Court hearing concerning the fresh trial.

• Court of Appeal (Criminal Division) — [2025] EWCA Crim 1088: prosecution application for leave to appeal granted; appeal allowed; the no-case ruling reversed; proceedings on both charges permitted to resume in the Crown Court, with a fresh trial directed.
• Crown Court — ruling under section 58 of the Criminal Justice Act 2003 that BXQ had no case to answer on the charges of causing and inflicting grievous bodily harm.