R v Kalam Bagge & Anor

At the close of the prosecution case, a judge need not decide whether every reasonable innocent explanation has been excluded. The question is whether a properly directed reasonable jury could infer guilt; assessment and weight remain for the jury. In a secondary-participation case, an agreement to use violence may itself constitute assistance or encouragement. No overt act or planned confrontation is required. A conditional agreement may be inferred from group conduct, including possession and awareness of weapons. A clear direction can prevent evidence admitted against one defendant from prejudicing another. Failure to discharge a jury because a witness is unavailable requires demonstrated prejudice. Permission to appeal was refused.

Kalam Bagge and Rhys Antwi were convicted of murder in the Central Criminal Court on 19 June 2024. The prosecution case was that each was party to a conditional agreement that members of the group would use unlawful violence if necessary, and that the agreement made each a secondary party to the murder.

Both applicants challenged the refusal of their submissions of no case to answer. Antwi also challenged the admission of evidence concerning a co-defendant’s knife purchases and the decision to continue the trial after another co-defendant refused to return for cross-examination. The central issues were whether the circumstantial evidence was legally sufficient and whether Antwi suffered procedural prejudice.

Disposition. The full court refused both applications for permission to appeal. There was no arguable ground that either conviction was unsafe.

1. No case to answer. The judge’s task at the close of the prosecution case was to assess sufficiency, not the ultimate weight of the evidence. Applying the approach in Galbraith and R v Younis Masih [2015] EWCA Crim 477, the question was whether a properly directed reasonable jury could infer guilt. The judge was not required to exclude every reasonable possibility consistent with innocence. That was a matter for the jury. The applicants’ reliance on the approach said to culminate in Bassett [2020] EWCA Crim 1376 did not establish error.
2. Secondary participation. Under Jogee [2016] UKSC 8, secondary liability requires assistance or encouragement and the intention to assist or encourage the principal in an attack carried out with the necessary murderous intent. An agreement is not essential. Where it exists, the agreement may itself amount to assistance or encouragement. The absence of an overt act therefore did not prevent the prosecution case from being left to the jury.
3. Circumstantial evidence. The group’s possession and awareness of dangerous weapons, close discussions, remaining together amid tension, leaving together, waiting outside until the victim emerged and fleeing together were capable of supporting an inference of a conditional agreement. A planned confrontation was not necessary.
4. Supervening act. It was unnecessary to decide when the issue of an overwhelming supervening act should be considered. In any event, the use of the gun was capable of being viewed as an escalation of the weaponry already contemplated, rather than an act that relegated the alleged agreement to history.
5. Antwi’s additional grounds. Evidence of Reid’s knife purchases was properly admitted in Reid’s case under the Criminal Justice Act 2003. The judge’s unequivocal direction that it was irrelevant to Antwi’s case prevented impermissible speculation and caused no prejudice. Barnett’s voluntary refusal to return for cross-examination did not require discharge of the jury. The matters that could have been put to him would not have advanced Antwi’s case, and the judge’s decision was within the range reasonably open to her.

• Court of Appeal (Criminal Division): The full court considered the applications as if they were full appeals and refused permission to appeal: [2025] EWCA Crim 402.
• Central Criminal Court: On 19 June 2024, HHJ Whitehouse KC convicted Bagge and Antwi of murder.