In a case alleging joint enterprise where the two defendants were tried together the judge was right not to give a Brown direction and the conviction was safe.Appeal against conviction, on limited grounds, with leave of the single judge. Renewed application for leave to appeal sentence. The defendant ('M') was convicted of manslaughter, as an alternative to murder. On 8 March 2002 he was sentenced to five years imprisonment. A co-accused ('J') was acquitted of murder and manslaughter. On 16 February 2001 M and J went with other friends to a night club. Fighting broke out involving M, J and the victim ('V'), the fighting ended without significant injury. They left the night club and as they walked along V was struck on the head by a brick and fell to the ground. He was semi-conscious and was taken to hospital by ambulance. X-rays did not reveal any fractures to the skull. V was unwilling to stay in hospital for observation and was allowed to leave with friends. He was left alone but later that day was found dead sitting on the floor against his bed. In interview M admitted throwing half a brick but could not say where it had landed. J admitted picking up a small stone but said he had not thrown it. Three eye witnesses all gave different accounts, one said she saw M pick up something and hit V on the head, another said she saw J throw something at V, and the third said he saw all three figures come together and V fall. The Crown's case was joint enterprise based on a range of possibilities, either M had thrown the brick and J assisted him, or, J had used the brick and M had assisted him, or, one or other of them were responsible without the assistance of the other. V's skull had been fractured during the incident and the fracture did not show in the x-ray. The defence alleged self-defence of themselves and of each other and contended the fracture must have been caused after V left hospital as a result of a fall at his home. Before summing up the judge was asked to consider giving a Brown direction, as in R v Brown (1984) 79 Cr App R 115, designed to ensure that the jury were unanimous on the basis of any conviction, either on the basis of guilt as the principal, as the thrower of the brick, or on the basis of secondary liability as a party to a joint attack. The judge was referred to R v Strudwick and Merry (1994) 99 Cr App R 326 and R v Carr (2000) 2 Cr App R 149. The judge refused and held that the case was different from Carr (supra) as, in that case, two different acts were alleged to lead to fatal injuries and the defence differed according to the act alleged. In the present case there was only one act, namely the striking of V's head, and the defence remained the same. All the jury had to be sure of was that M was guilty of the offence either as principal or as a secondary party. M appealed conviction on the ground that the judge should have given the direction specified in R v Brown (supra). The judge's ruling was based on the premise that all the jurors agreed that this was a case of joint enterprise. There was, however, no justification for assuming that all jurors were necessarily agreed that there was a joint enterprise. As both verdicts were returned following a majority verdict direction it was possible that J was acquitted on a 10:2 majority and it was therefore possible that the majority verdict against M was made up of only eight jurors who were sure he had thrown the brick, plus two who were sure only that he had been a party to J throwing the brick; whereas there was a majority of jurors who had rejected any form of joint enterprise.HELD: (1) The present case fell into no category previously considered to need a Brown direction. It fell closer to the dictum in Merry (supra). The case involved a single incident in which one or two weapons were used and the defence raised was self-defence and a denial of joint enterprise. Those defences were cumulative and overlapping and could be distinguished from the situation in Carr (supra). (2) The present case involved a single blow with a brick, or stone, in the presence of both defendants. M admitted throwing a brick. It was theoretically possible, on the conflicting evidence of the eye witnesses, that two bricks or stones had been thrown or used by each defendant. If M had been tried alone it would have been possible for the jury to reason that they were not sure who threw the missile which hit V but were, in any event, sure that M had thrown half a brick and that he was party to a joint venture which ended in V's death. It was possible for a jury to reach that conclusion with some members sure the fatal missile had been used by one man and others sure it had been used by the other. If such a verdict was rational where M was tried alone it remained rational where M and J were tried together. There was nothing irrational in reaching that decision whilst finding J not guilty it just reflected the criminal burden of proof. (3) The judge had not misdirected the jury by not giving a Brown direction. On the facts of this case there was no realistic danger that the jury were split on a vital element necessary to M's guilt and he was justified in not complicating his directions. The verdict was therefore safe. (4) The renewed application for leave to appeal sentence would be refused as the sentence passes was not excessive.Appeal dismissed. Renewed application for leave to appeal sentence refused.

[2003] EWCA Crim 1501