Neutral Citation Number: [2010] EWCA Crim 1620
Case No: 2008/3282/D3, 2007/5541/D3, 2008/3352/D3
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Christopher Moss QC
T20077172
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/07/2010
Before :

LORD JUSTICE MOSES
MR JUSTICE HENRIQUES
and
MR JUSTICE TUGENDHAT
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Between :

	Mr Tommy Willett
Mr Albert Major Willett	1st Appellant
2nd Appellant	
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	The Crown	Respondent	

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Mr R Johnson QC (instructed by Arora Lodhi Heath ) for the 1st Appellant
Mr L French (instructed by Wells Burcombe) for the 2nd Appellant 
Mr M Heywood QC (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: Monday 26th April, 2010
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Judgment

Lord Justice Moses : 
1.	On 14 May 2008, at the Central Criminal Court, the appellant was convicted of murder.  He was a passenger in a Ford Mondeo driven by his brother, Albert Willett.  Both were seeking to escape from a car park where they had been attempting to steal Mr Balbir Matharu’s van.  Mr Matharu, bravely, had tried to prevent their escape.  Albert Willett drove over Mr Matharu, dragging him along the road and killing him.  He was convicted of murder.  The question for the judge, HHJ Moss QC, and for this court is whether there was sufficient evidence of this appellant, Tommy Willett’s, participation in the murder committed by his brother.  
2.	On 12 January 2006 Albert Willett and his brother drove in a Ford Mondeo to a car park in Francis Street, East London.  It was their intention to steal from vehicles.  This appellant tried to break in to Mr Matharu’s van in the car park whilst his brother, Albert, remained at the wheel of the motor car.  As the photographs demonstrate, the gateway forming the entrance to the car park is concealed from a view within the car park by a brick hut.  Mr Matharu saw the attempt to break into his van and shouted.  The appellant admitted, in evidence, that he had heard someone shout and ran back to the car driven by his brother.  His brother then drove to the entrance to the car park which required a left turn past the brick hut.  There they saw that their escape was barred by Mr Matharu.  He stood in front of the exit and courageously attempted to prevent their escape.  His bravery was witnessed by a taxi driver, Haviz Rahman.  He saw the deceased standing in front of the Mondeo just inside the car park entrance and more to the passenger side.  He saw the car edge forward but heard no revving of the engine or screeching of tyres.  Next he saw the deceased under the Mondeo.  His impression was that the incident lasted about ten seconds and that Mr Matharu had tripped.  He also said that Mr Matharu had banged on the bonnet and that the Mondeo had stopped and started whilst Mr Matharu remained in front.
3.	Albert Willett then drove forward, Mr Matharu went under the motor car and was dragged along Francis Street.  Albert Willett drove off with the appellant as passenger. 
4.	We shall turn to the evidence of this appellant’s behaviour after his escape later, since it is relevant to the way the way the prosecution put its case.  At this stage it is sufficient to record that the appellant gave evidence in which he explained that he and his brother had set out to steal in order to fund their drug habit.  He was trying to open the door of Mr Matharu’s white Mercedes van when he heard someone shout.  He ran and got back into the Mondeo.  Everything had happened very quickly.  An Asian gentleman came to the front of the Mondeo and banged on the bonnet.  The appellant did not realise that the motor car had run over Mr Matharu; he believed it might have clipped him and that Mr Matharu had fallen to the side.  He denied that Albert Willett had driven at Mr Matharu.
5.	He accepted, in cross-examination, that he wanted to get away and agreed that he and his brother understood that the escape would involve “foot down and away”.  But he said that there was no intention to hurt Mr Matharu, and he had not encouraged his brother to run him over, nor did he say “get out of the fucking way”.  
6.	Albert Willett gave evidence in his own defence.  He admitted he had panicked and nudged the car forward when Mr Matharu banged on the bonnet.  But neither of them had shouted to him to “get out of the fucking way”.  He said that if he had known Mr Matharu was under the motor car he would have stopped.  
7.	The evidence of PC Moseley, Fatal Accident Examiner, is that there would have been a change in the feeling of the steering, and driving over Mr Matharu’s body would have felt like driving over a speed bump.
8.	It is important to be clear as to the nature of the prosecution case against this appellant.  The prosecution did not know, until shortly before the trial, that Albert Willett would admit that he was the driver.  There was evidence that his brother, the appellant, was boasting that he was the driver.  Albert Willett entered a plea of guilty to manslaughter before the case was opened.  The prosecution case appears to have been put on the basis that the killing of Balbir Matharu was “pursuant to an agreement between two thieves that the driver would drive so as to escape attention and arrest, including, if necessary, driving at any individual in a way which would cause him really serious bodily harm or even death”.  The prosecution relied in support on admissions by this appellant that both he and his brother had shouted at Mr Matharu when in front of the vehicle and before it rode over him “if you don’t move, we’re going to run you over”.
9.	The nature of the case against this appellant appears, therefore, to have been that although the appellant did not agree to his brother killing or intentionally inflicting serious injury on Mr Matharu, he realised that Albert might do so with a murderous intention but nevertheless continued to participate in the venture.  Evidence of that participation consisted of his shouting at the unfortunate victim.  In short, the way the prosecution case relied on the principle that an accessory may be guilty where he does no more than foresee that the principal may kill or intentionally inflict serious injury, but nevertheless continues to participate (see Powell [1999] 1 AC 1 and Rahman [2009] 1 AC 129).
“Participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise.”  (Powell, p.21, cited in Rahman at [11])
10.	In Rahman the House of Lords rejected the submission that it was necessary to prove that the accessory foresaw or contemplated the intention of the principal.  All that must be proved is foresight of what the principal might do (Rahman at 21, 24).  
11.	The ruling of the judge at the close of the prosecution case summarised the prosecution case against Tommy Willett as follows:-
“The jury would have to consider and be sure that they can safely draw the inference from all the evidence that Tommy, realising what Albert was to do, nevertheless lends himself to that act by actual or tacit encouragement.”
12.	The judge continued by apparently relying not on any active encouragement but upon what he called “tacit encouragement”.  He said:-
“I remind myself that there is no direct evidence of actual encouragement in this case.  No evidence of any word spoken, for example, by Tommy to Albert touching upon Tommy’s attitude to what Albert apparently intended to do.  However, in my judgement, encouragement could be inferred by the jury – it is a matter entirely for them not for me – by the continued presence of Tommy in the car, by the lack of any evidence of any dissent by Tommy combined with his attitude to the incident after the event, which could itself be considered by the jury as relevant to their determination of his state of mind at the time of the events…”.
13.	The judge repeated his view that the case was fit to go the jury at the close of the evidence of both of the defendants.
14.	There seem to us substantial defects in the way the judge approached the case.  As Mr Johnson QC, on behalf of this appellant, pointed out, the circumstances of the escape demonstrated that there can have been no advance plan to injure, let alone kill, anyone during the course of the theft.  True it was that it was part of the plan to escape but it does not follow that it was part of the plan to cause anyone injury.  At the time this appellant heard shouting and was prompted to run back to the Mondeo, he could not have seen Mr Matharu.  Mr Matharu would have been hidden at the entrance to the car park and behind the brick hut.  
15.	When the appellant got into the car he could not have appreciated that anyone would stand in front of it because the position of Mr Matharu at the entrance to the car park was at this stage still invisible.  Mr Matharu would have only been visible to the brothers after the vehicle had turned left and approached the entrance to the car park.  
16.	In those circumstances, it seems to us that unless there was evidence that this appellant had encouraged his brother to drive the car at Mr Matharu in order to escape there was insufficient evidence upon which a reasonable jury could convict this appellant of murder, as an accomplice.
17.	At the time he ran back to the Mondeo this appellant cannot have appreciated that anyone would stand in a position in which he would be at risk should the brothers make their escape.  As we have emphasised, Mr Matharu would have been out of sight at the time he shouted.  The first opportunity to see him barring the way was when Albert Willett drove left around the corner and was faced with Mr Matharu at the entrance to the car park.  At that stage, but only at that stage, it was open to a jury to conclude that the appellant must have foreseen that his brother might drive at Mr Matharu and continue to drive, knowing that Mr Matharu was not clear of the car.  It was not necessary for the jury to go on to consider whether the appellant foresaw or contemplated his brother’s intention, although, in this case, if the appellant foresaw that his brother might drive at Mr Matharu, his brother’s intention would have been obvious.  But even if the jury concluded that at that later stage the appellant foresaw or contemplated his brother driving at Mr Matharu, how could the prosecution prove a continuing participation despite that foresight?  The essence of imposition of liability on a secondary party, in such circumstances, is that secondary party’s continued participation in a joint criminal enterprise despite his foresight or contemplation of the commission of another crime which is not the purpose of the enterprise (see Rahman in the speech of Lord Bingham at §§ 10 and 11).
18.	It is difficult to see that merely continuing to sit in the passenger seat of the Mondeo amounted to any encouragement to the driver to run over Mr Matharu.  Events happened fast.  There was an opportunity, at the last minute, we suppose, for the appellant to get out of the vehicle and remonstrate with Mr Matharu.  But his failure to do so cannot, we think, be said to be an encouragement to the driver to run him over.  The speed and turn of events makes such a suggestion unrealistic.
19.	The question therefore is whether there was some evidence of encouragement other than mere continued presence in the vehicle.  It is in that connection we turn to the further evidence given at trial.  Nicola Nolan lived with this appellant in what she described as “a squat”.  They were taking heroin and crack cocaine together.  She said that the appellant told her about the murder when they were together in the squat.  This, she said, was a few days after she had first met him.  She said that the appellant told her that he had tried to steal a stereo from the car but that a man had come out and caught them in the act.  She continued:-
“Tommy said that he got back into the car, and the man stood in front of it and said ‘you have to stop and wait for the police’ and that they (that’s Tommy and the other person) said, ‘if you don’t move, we’re going to run you over’.”
20.	She then described the appellant’s attitude when he heard that the events were described on a Crimewatch programme.  He appeared to be excited.  
21.	There was some support for her evidence from a prisoner in custody with this appellant in HMP Pentonville in 2006.  That witness, who gave evidence cloaked in anonymity, said that the appellant described the victim in an offensive and racist manner.  The appellant had described the victim going under the car and being dragged along.  The witness said that the appellant was laughing.  He had the impression that the appellant was the driver.  He told this witness that the police had “jack shit” on him. 
22.	Mr Johnson QC underlined, as he emphasised before the judge, the unsatisfactory source of this evidence.  Nicola Nolan’s evidence, given in 2008, related to what the appellant had said two years earlier when both were long-term drug addicts.  Moreover, at that time the appellant was claiming to be the driver and the apparent admission on which the prosecution rely was wholly unclear as to who was speaking when she reported that the appellant said that “they” had uttered the threat to Mr Matharu.
23.	Although the source of this evidence was plainly unsatisfactory, it was evidence on the basis of which a jury could conclude that this appellant had realised that his brother might drive over Mr Matharu and had actively encouraged him to do so.  Whilst the appellant’s continued presence in the vehicle was not of itself enough to establish encouragement the words he had admitted using, if the evidence of Nicola Nolan was accepted, were words which would have encouraged the driver to run Mr Matharu over.  The appellant did use the pronoun “they”.  But the jury was entitled to conclude that he was accepting and indeed boasting that he had used those words even if he was also saying his brother had made a similar threat.  That admission, coupled with his attitude to what happened, was evidence, in our judgment, upon which a reasonable jury could conclude participation in the sense of encouragement once this appellant realised that his brother might drive at Mr Matharu and continue to drive.
24.	The difficulty in the judge’s ruling lies in his apparent acceptance that “tacit” encouragement would be enough.  We do not agree.  Indeed, we are not sure what he meant by “tacit encouragement” in the context of this case.  The danger with that expression is that it suggests that this appellant’s continued presence was sufficient.  For the reasons we have given, it was not.  However, the judge was right to rely upon the evidence of what he describes as the appellant’s “attitude to the incident after the event”.  In our judgment, that evidence was more than evidence of an “attitude”.  It was capable of being evidence of a confession that he had encouraged his brother to drive over Mr Matharu in joining in the threat “if you don’t move, we’re going to run your over”.
25.	In those circumstances we take the view that the judge was correct to refuse to withdraw the case against this appellant from the jury.
26.	We must then consider whether the jury was properly directed as to matters of which they had to be satisfied before they could convict this appellant of murder.  At the outset of his directions the Judge instructed the jury in relation to the appellant as follows:-
“If, but only if, you convict Albert of murder, then you would only convict Tommy of murder if you were sure that he deliberately encouraged Albert in his actions in the sense that I will explain to you in a moment, and that he, too, appreciated that death or really serious bodily harm to the deceased was a virtual certainty as a result of Albert’s actions.”
In relation to manslaughter, the judge again referred to participation on the part of the appellant “by encouraging Albert in the way which I shall explain in the next paragraph”.
27.	The judge continued by describing the essence of joint responsibility for a criminal offence where:-
“Each defendant shared the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim.”
He then warned the jury that:-
“Mere presence at the scene of a crime is not enough to prove guilt.”
But he continued:-
“In this case, the Crown say in support of their case against Tommy for murder that his presence in the car was anything but innocent in the sense that he shared Albert’s intention to kill or cause really serious injury to the deceased.  He, too, appreciated, say the Crown, that barring some unforeseen intervention, death or really serious bodily harm was a virtual certainty in the case of the deceased, and nevertheless, he lent himself to and even, if only by his presence, encouraged the actions of Albert.  In support of the alternative charge of manslaughter, they say that Tommy realised that Mr Matharu would be subject to the risk of sustaining some injury, albeit falling short of really serious harm.  Put shortly, the Crown say that the defendants were in it together.”  (our emphasis)
28.	The judge then handed to the jury written steps to verdict.  In the introduction to the document (at 2.3) the judge directed the jury:-
“Tommy Willett, the passenger in the car, is said to have encouraged his brother, Albert, to drive at Mr Matharu and then to drive on (knowing that Mr Matharu was not clear of the car) in order that they might both get away.”
The written directions continued, in relation to this appellant:-
“In order for Tommy Willett to be guilty of the murder of Mr Matharu, the prosecution must prove so you are sure that:
a)		Albert Willett is guilty of murder; 
AND
b)		Tommy Willett realised that Albert Willett might drive at Mr Matharu and continue to drive knowing that Mr Matharu was not clear of the car;
AND
c)	Tommy Willett realised that Albert Willett intended either to kill Mr Matharu or at least cause him really serious harm;
AND
d)	Tommy Willett nonetheless participated in the offence by encouraging Albert Willett.” 
29.	It is clear both from the oral passages and the written directions that the jury was directed that in order to convict the appellant it had to be sure that he had “deliberately encouraged his brother in his actions”.  The judge did direct them that they had to be sure that he had participated by encouraging.  If by that he meant positive encouragement more than by merely returning and remaining in the car then his directions cannot be properly impugned.
30.	The difficulty, however, lies in the judge’s recitation, without any criticism, of the way the prosecution put their case.  The prosecution appeared to be saying that his continued presence in the car was capable of amounting to deliberate encouragement to his brother to drive over Mr Matharu.  For the reasons we have given, that was not enough.  It seems to us that the only basis upon which the jury was entitled to convict this appellant of murder was if they were sure that he had given deliberate and positive encouragement to his brother to drive over Mr Matharu by uttering the threat which, according to Nicola Nolan, he had admitted, namely “if you don’t move, we’re going to run you over”.
31.	Nowhere in his directions did the judge draw to the jury’s attention the need to be sure that this appellant had joined in the threat to Mr Matharu before his brother drove on.  On the contrary, the judge appeared to be endorsing the Crown proposition that he could be guilty merely on the basis that he had remained in the vehicle.  That is, no doubt, what is meant by “he lent himself to and even, if only by his presence, encouraged the actions of Albert”.  The judge himself had earlier said that he would explain what he meant by “deliberate encouragement” and that is the only passage which affords any such explanation.
32.	In a case such as this, it would be all too easy for a jury to convict a passenger, escaping from a crime, of murder merely on the basis that the escape was part of the crime and the appellant, participating in the crime of theft and participating in the escape, had chosen to remain in the vehicle.  Yet, on the facts of this case, as we have sought to demonstrate, that was not enough to establish murder.  Difficulties and dangers in a case such as this arise when any member of the public would be outraged not only at the conduct of the driver but also at the passenger whose criminal activity had led to the consequence of the death of Mr Matharu.  Accordingly, careful directions were required so as to identify those parts of the evidence which might establish guilt and those parts which by themselves would be insufficient.  It was, we think, incumbent upon the judge to emphasise to the jury that they could not convict this appellant of murder unless and until they were sure that he had joined in the threat to Mr Matharu and by joining in that threat had encouraged the driver to drive at and over the victim.  We are far from saying that the evidence of Nicola Nolan, coupled with the evidence of Witness B, was not a sufficient basis on which the jury could convict.  But we remain concerned that the jury would not have been clear that that was the only basis upon which they could convict.
33.	In those circumstances, we are reluctantly driven to the conclusion that the verdict of murder was unsafe.  We have considered whether it would be open to us to substitute a verdict of manslaughter by an unlawful and dangerous act.  A case could be made against the appellant that the escape, being part of the theft, was an unlawful act, intentionally performed, in circumstances rendering it dangerous in the sense that a reasonable and sober person would have been aware of the circumstances which made the escape dangerous.  It is arguable that a verdict of manslaughter on that basis would be almost inevitable.  
34.	But we are not entitled to substitute a verdict of manslaughter on that basis unless the jury could, on the indictment, have found him guilty of that offence and:-
“On the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which prove him guilty of the other offence.”  (See s.3(1) Criminal Appeal Act 1968.)
35.	We are unable to say that on its verdict of murder the jury must have been satisfied of “unlawful act” manslaughter, particularly in light of difficulties and controversy in identifying the ingredients of that offence.  
36.	For those reasons we shall quash the verdict of murder and have in mind ordering a re-trial.  Before making such an order, we shall, however, give the appellant the opportunity of making submissions to the contrary in writing within fourteen days of handing down this judgment.  The prosecution shall have seven days after to reply and we shall announce our decision thereafter. 
Sentence
37.	Albert Willett was sentenced to imprisonment with a minimum period of 27 years specified under s.269(2) of  The Criminal Justice Act 2003.  He was 26 at the time and although he had a poor record for one of his age, now 28, with thirty-three previous convictions, he did not have convictions for grave or serious violence.  
38.	The appellant Albert Willett had been sentenced to 6 years for conspiracy to supply a Class A drug on 28 August 2007.  The judge made it clear in his sentencing remarks that he intended to order a minimum period of 25 years in respect of both appellants but added 2 years to reflect the previous sentence passed upon Albert Willett.
39.	The appellant contends that the judge adopted too high a starting point of 30 years, pursuant to Schedule 21 of the Criminal Justice Act 2003.  The judge accepted that the murder was done for gain in the sense of a murder committed in the course of furtherance of robbery or burglary (Paragraph 5(2)(c)).  Although it is true that the murder was not committed in order to facilitate the theft but rather to facilitate his escape, the judge was entitled to take the view that the events fell within § 5(2)(c) (see R v Bouhaddaou [2006] EWCA Crim 3190 at § 15).  Lord Phillips,  Chief Justice, pointed out that escaping after a burglary was an integral element of the criminal enterprise and if a murder is committed to facilitate escape from burglary whose object is gain, then it can properly be said to be committed for “gain”.  He drew attention to the contrast between the words “in the course of” and “in furtherance of” in Paragraph 5(2)(c) of Schedule 21 (see § 15).
40.	It does not seem to us to make any difference that the murder was committed in the course or furtherance of theft.  Admittedly, it was a less serious offence, but Paragraph 5(2)(c) makes it clear that the references to robbery or burglary are merely examples of offences in the course of which or furtherance of which murder is committed (“such as”).  We take the view that 30 years was the appropriate starting point.  However, there was substantial mitigation, even though this was a terrible offence.  As Mr French pointed out, there was neither intention to kill nor any significant period of premeditation.  In those circumstances we think that a sentence of 25 years was appropriate.  We think the judge ought to have had greater regard to his age and absence of previous convictions for any serious violence.  We do not think it appropriate to have added 2 years in respect of the drug offences, having regard to the very long time before which any question of his release could possibly arise.  In those circumstances we shall allow his appeal against sentence to the limited extent of reducing the specified minimum of 27 years to one of 25 years.