R v ARU & Ors [2024] EWCA Crim 1101
The Court of Appeal considered whether the principles from Gnango could be properly applied to a knife fight to establish a joint enterprise, following an appeal by the prosecution against a successful half-time submission in relation to three child defendants who were charged with attempted murder and murder.
Details
Four child defendants, ARU, AOC, BHL and TC, were charged on a five-count indictment with murder, manslaughter, attempted murder, s.18 GBH and violent disorder. Count 3, attempted murder, related to the attempted murder of ARU who had been stabbed multiple times by a male in the opposing group. He was not charged with his own attempted murder on public interest grounds.
At the close of the prosecution case, submissions were made that there was no case to answer in relation to counts 1-4. These were upheld in relation to AOC, BHL and ARU but not TC. The prosecution sought leave to appeal against the judge’s ruling on the ground that it was not one reasonably open to him to make. Leave was granted, but ultimately the appeal was dismissed.
The prosecution case at trial was entirely circumstantial. It was alleged that the defendants, young people, 15 and 16 years of age, had on 29 September 2023, all arranged to engage in a knife fight, where the intention was either to kill or seriously harm each other and that therefore when one of the number was stabbed to death with murderous intent, all parties were jointly liable for that person’s murder.
The submissions of no case to answer hinged on the proposition that there was insufficient evidence to show that the fight was either prearranged or a spontaneous joint fight.
The court held that:
- In order for ARU, AOC and BHL to be convicted of murder/ attempted murder, there had to be an agreement, either spontaneous or made in advance, between individuals or a group to stab or be stabbed at
- The reciprocal nature of the agreement had to be proved (R v Seed and others [2024] EWCA Crim 650)
- The act of carrying a knife was not probative without further agreement to engage in a knife fight
In this case, there was evidence that did not support agreement, such as a lack of indication from the opposite side that they would be in possession of knives, limited messages, the absence of prior enmity, and the fact ARU, AOC and BHL had run away when the opposing group ran at them with knives.
The Court of Appeal took the case of Gnango [2011] UKSC 59 as its starting point. In that case, there had been an agreement to participate in a shoot-out with another male. That male fired a bullet during the shoot-out, which killed a woman as she walked home. Gnango was convicted of her murder: the common intention had been to shoot and be shot at, as in a duel, which constituted the joint enterprise.
In this case, there was no evidence of such agreement. Accordingly, the prosecution appeal was dismissed as "ill-founded”. The court confirmed at paragraph 48 that “cases in which opposing sides engaged in violence have a common purpose of the kind required to fix all participants with liability for the death of anyone resulting…will be rare”.
Commentary
This judgment emphasises that there must be cogent evidence of a clear agreement between parties before liability for a death is shared. It confirms that the principles in Gnango are not to be widely applied and that even where a fight ends in fatality, it will be rare that all parties are liable for the death. In the present case, there was no evidence of an agreement to engage in a knife-fight, and a jury could therefore not properly convict the child defendants of murder or attempted murder when the victim was stabbed to death and where ARU was stabbed multiple times.
Where young people are charged jointly with serious violent offences, practitioners should take care to evaluate the circumstances of the case and remain vigilant to attempt to fix multiple parties with liability through joint enterprise. The cases of Gnango and Seed should be read by all those representing children accused of such offences.
Written by
Violet Smart, Doughty Street Chambers