In a case of joint enterprise the judge was wrong to direct the jury that they could only convict all the defendants of murder or all of them of manslaughter but could not convict some of murder and some of manslaughter. However, there was overwhelming evidence that the defendants were all in it together from the outset and the convictions were safe.Appeals against convictions with leave of the single judge. On 1 June 2001 at Stafford Crown Court, before Turner J, the defendants ('B' 'R' 'K' and 'E') were convicted of murder and sentenced to life imprisonment. The victim ('V') was married but separated from his wife. V's wife formed a relationship with K and told him that she had been subjected to violence during the marriage. On 20 May 2000 all four defendants were drinking at a pub where E was manager, a large amount of alcohol was consumed. A number of witnesses gave evidence about phone calls between the group and V, and overheard conversations, which indicated they were all talking about a fight. Eventually all four defendants left the pub and went to a rugby club. Witnesses gave evidence that they were looking for trouble and were intimidating, they were all seen huddled around a mobile phone shouting and screaming into it. B and R set off in a car intent on finding V, the others stayed behind in case he turned up at the club. B and R found V who was walking towards the club. One of the defendants shouted "Wiggy Park now". B and R returned to the car park of the club, driving at great speed. K and E got into the car and a witness stated one of them said "come on we know where he is" and "get him in the lane where he won't be found". They again split up, K going one way and the others going in another direction. V was found by R, L and B who punched and kicked him to the ground and rendered him helpless. They returned to the car and met K. Witnesses stated that they all ran towards V and assaulted him. There was evidence of numerous punches and kicks. V suffered 22 external injuries and subsequently died. All the defendants left together. They were later arrested and found to have V's blood on their clothes. All the defendants admitted being present, K and L admitted the assault but B and E said they did not touch V. It was the Crown's case that all four were part of a joint enterprise to seek out V and subject him to really serious harm. As the really serious harm had resulted in death all four defendants were guilty of murder as they had all taken part in the joint plan. R admitted they left the pub together but submitted that it was only intended to have a one on one fight and denied any knowledge of joint enterprise. K stated that he only wanted to speak to V, not in a friendly way but to tax him about the allegations made by V's ex-wife. He also denied any knowledge of a joint enterprise. B knew there was going to be a fight but stated that no-one meant V to suffer really serious harm. The judge directed the jury that they could convict all, or any, of the defendants of murder or could convict all or any of them of manslaughter, or the jury could acquit them. He indicated that they could not convict some of murder and some of manslaughter. The defendants appealed conviction on the ground that the judge's direction was wrong and the convictions were therefore unsafe. There were circumstances in law where a jury could conclude one defendant was guilty of murder and convict the others of manslaughter at the same time. The circumstances in which a jury might convict one defendant of murder and the others of manslaughter was if there was a joint plan to attack, which involved intention to cause some, but not really serious, harm. If one defendant went further than the joint plan, the proper conclusion would be the one that inflicted greater harm was guilty of murder and the others did not have the appropriate state of mind to be guilty of murder. By not leaving that alternative to the jury the defendants were at a disadvantage. The jury might have convicted the defendants even if they did not consider them guilty of murder rather than to have to acquit them. The Crown accepted that proposition but contended the judge's error was to the disadvantage of the Crown.HELD: (1) The proposition put forward by the defendants might have required detailed analysis from the court. However, as the Crown accepted that proposition the Court of Appeal would proceed on that basis. R v Robert Day (2001) CLR 984 was a similar case. The judge left the option of convicting some of manslaughter to the jury, it was appealed on the basis that it was wrong to do so. The appeal failed and the Court of Appeal affirmed the proposition that was before the court today. R v Gilmour (2002) 2 Cr App R 407, a decision of the Northern Ireland Court of Appeal would also have had to be considered. (2) If the court had to decide the appeal it would have held that R v Robert Day (supra) was binding on it. The court would work on the basis that if the judge had left before the jury the option detailed he would not have been wrong to do so. The court was aware of academic criticism of both of the decisions particularly from Professor John Smith in the Criminal Law Review of each of the cases. One day the point may need to be considered by the House of Lords. (3) The approach to be taken where a judge failed to leave a lesser alternative to a jury was set out by the House of Lords in R v Maxwell (1990) 91 CAR 61. Applying that approach and looking at all the circumstances of the case this was a case where either the Crown was right and there was a joint plan from the outset or the defendants' contention that they only intended to have an insignificant fight was right. The evidence gave no room for the in between contention that some juror might have said they were satisfied a defendant went along for a one to one fight but then went on to say that the defendant must be made to pay for it and convict him for murder because manslaughter was not an option. (4) That was unrealistic, a juror would have balked at the proposition of branding someone as a murderer when his only intention was to have a one to one fight. There was overwhelming evidence that all the defendants were in it together throughout. Seldom in a joint plan case, was there such strong evidence. There was no unfairness with the decisions and the convictions were safe.Appeals dismissed.

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