R v Luke Hibbert

On a submission of no case to answer, the court must ask whether a properly directed reasonable jury could convict on any available view of the prosecution evidence taken at its highest. The question is not whether every reasonable jury would do so. A jury may draw cumulative inferences and reject realistic explanations consistent with innocence, while assessment of weight remains its province. For secondary participation in murder, knowledge of a plan, an omission to prevent it, or post-event condonation is insufficient. The prosecution must provide evidence capable of supporting an inference of intentional assistance or encouragement, with the necessary intent. Absence from the killing and lack of direct evidence do not require withdrawal where communications and surrounding circumstances support participation in the plan.

The appellant was charged with murder and pleaded guilty to offences of being concerned in the supply of Class A and Class B drugs. The Crown Court at Derby rejected his submission of no case to answer at the close of the prosecution case. He was subsequently convicted of murder and sentenced to life imprisonment with a minimum term of 24 years.

With leave, he appealed against conviction on the single ground that the judge had wrongly left the murder charge to the jury. It was accepted that the appellant was not present at the killing and that mere knowledge, omission to prevent or discourage the killing, and post-event condonation could not establish secondary liability. The central issue was whether the evidence permitted an inference that he had participated in planning the murder with the necessary intent.

The appeal was dismissed. The court held that the trial judge had correctly rejected the submission of no case to answer and that there was no basis for finding the conviction unsafe.

1. The no-case test. The principles in R v Galbraith [1981] 1 WLR 1039 required the judge to stop the case where there was no evidence, or where the prosecution evidence taken at its highest could not support a proper conviction. If, on one possible view, a properly directed jury could properly convict, the case had to continue. As explained in R v Jabber [2006] EWCA Crim 2694, the focus was on what a reasonable jury, rather than all reasonable juries, could conclude. R v GF [2012] EWCA Crim 1756 supported the same approach.
2. Role of the jury and the appellate court. Assessment of the weight of evidence and the drawing of inferences remained matters for the jury. The trial judge must not usurp that constitutional function or decide whether it would be safe to convict: R v F(S) [2011] EWCA Crim 1844; [2012] QB 703. On appeal from a ruling on no case to answer, the court ordinarily focuses on whether there was a case to answer, rather than on the sufficiency of the reasons given by the trial judge: R v Chauhan & Croft [2019] EWCA Crim 1111; (2019) 2 Cr App R 27.
3. Secondary liability. It was common ground that liability could not rest on mere knowledge of the plan, an omission to prevent or discourage the killing, or communications after the event which merely condoned it. The prosecution had to prove an intentional act of assistance or encouragement, with the intention that the victim should be killed.
4. Application. The communications had to be read in context and as a whole. The sequence of meetings, calls and messages, including Towell’s references to the planned killing and his urgent communications to the appellant on the day of the murder, permitted a reasonable jury to infer that the appellant had participated in making the plan with the relevant mens rea. The evidence did not compel the conclusion that he merely knew of the plan. His absence from the killing and the absence of direct evidence of assistance did not require the case to be withdrawn. A reasonable jury could infer participation at least by encouragement.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed. The court held that the Crown Court judge had not erred in rejecting the submission of no case to answer and that the conviction was not unsafe: [2025] EWCA Crim 1730.
• Crown Court at Derby: The appellant pleaded guilty to drug-supply offences, was convicted of murder after a trial, and was sentenced to life imprisonment with a minimum term of 24 years.