No: 01/7022/Y3 
Neutral Citation Number: [2002] EWCA Crim 2858
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 3 December 2002
B E F O R E:

LORD JUSTICE MAY 

MR JUSTICE SILBER 
 
MR JUSTICE GRIGSON 

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CRIMINAL CASES REVIEW COMMISSION 
UNDER s.9 CRIMINAL JUSTICE ACT 1996

R E G I N A 

-v- 

SYDNEY MAIR
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
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MR JRW GOSS QC & MR WA HARRIS appeared on behalf of the APPELLANT
MR P PARKER QC appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE MAY:  Mr Sydney Mair is now aged 77.  As long ago as 27th June 1988 he appeared in the Crown Court at Birmingham before the late Hazan J, when he, together with a co-accused, was convicted of murder and sentenced to life imprisonment.  He was acquitted of wounding with intent and an alternative count of wounding.  The jury was discharged from returning a verdict on a fourth count, affray.  This is his appeal to this court on a reference from the Criminal Cases Review Commission.
2.	The case for the prosecution on which the appellant and his co-accused, John Bryce, were each convicted of murder is very helpfully summarised in the Reference in these terms.  On the evening of 20th November 1987 Sydney Mair, John Bryce and James Hayles were drinking at the bar at the Queen's Head public house, Winson Green in Birmingham.  James Shepherd was drinking in the pool room of the same pub.  Mr Shepherd was accompanied by his brother, Charles Mulholland, and their respective girlfriends, Margaret Gallagher and Sally Green.  Mr Mair made a comment to Miss Green as she made her way to the lavatory, which was situated outside the rear of the public house.  Miss Green returned to the pool room, where she told Mr Mulholland what had been said.  Mr Mulholland left the pool room, accompanied by Miss Green and confronted Mr Mair in the corridor.  Mr Mair and Mr Mulholland began to fight.  Mr Shepherd then joined in the struggle, punching Mr Mair in the face.  The fight was eventually broken up by the licensee, Gurjit Singh.  The three men involved in the fracas then returned to their respective rooms.
3.	A short time later Mair, Bryce and Hayles entered the pool room.  Mair pointed to where Mulholland and Shepherd were standing and said, "That's him".  A fight ensued, during the course of which both Shepherd and Mulholland were stabbed.  Miss Green stated that immediately after the scuffle she saw Mr Bryce holding a knife.  Shepherd collapsed some minutes after being stabbed and was taken to hospital.  He was pronounced dead shortly afterwards.  Mr Mulholland received hospital treatment for a stab wound.  The injury above his left hip was not life threatening.
4.	Mulholland gave evidence that Shepherd had merely been trying to defend himself in the pool room.  Both Mair and Bryce had advanced towards them.  Mair was shouting aggressively and took an active part, he said, in the attack.
5.	Miss Gallagher gave evidence that Bryce approached Shepherd and made a movement she described as "forwards and slightly upwards".  She then heard Shepherd say, "He's stabbed me".  Miss Gallagher did not actually see a knife in Bryce's hand.
6.	The pathologist gave evidence that Shepherd was killed by a single blow to the heart, angled at about 45 degrees to the vertical in an upward and outward direction.  A short knife with a blade length of about 5 inches would, in the opinion of the pathologist, have been capable of causing such an injury.
7.	The licensee and Tommy Scott, who had been drinking in the pub, both gave evidence that Mr Mair, the appellant, was holding a glass and a broken bottle in his hands while he was in the pool room.
8.	Stephen Gall, who had been drinking in the same room as the appellant and the others, gave evidence that he saw Bryce holding a lockknife with a 6-inch blade prior to the stabbing.
9.	A 14-year-old girl, Cheryl Adams, also saw Bryce with the knife, though this was outside the public house once the stabbing had occurred.
10.	The appellant was arrested on 21st November 1987.  When he was interviewed, he denied that he had spoken to a woman near the lavatories.  He had been attacked in the corridor for no reason.  He said that he had not seen a knife at any time before or during the attack.  He admitted that he had taken a broken glass into the pool room but had not been involved in the fight.  He said that he had probably taken the glass to cut the man who had "just beaten me up".  He pointed out that man to Bryce.  That, then, was a summary of the prosecution case.
11.	The appellant did not give evidence at his trial, nor did he call any witnesses.  Bryce did give evidence in exculpation of himself, saying that he had no knife, but the jury convicted him.
12.	After a trial lasting six days, both the appellant and Bryce were convicted of murder and sentenced to life imprisonment.  Both were acquitted of wounding with intent and of the alternative charge of wounding, and, as we have said, the appellant also faced a charge of affray, in respect of which the jury was discharged from returning a verdict.
13.	The appellant served a prison sentence until he was released on licence in April 1997.
14.	Following their trial and conviction, both Bryce and the appellant applied for leave to appeal against conviction.  That application was rejected by the single judge, Gatehouse J, on 28th November 1988.  In regard to the appellant's application, Gatehouse J wrote:
"The learned judge correctly directed the jury on 'joint enterprise' -- it was not necessary for the jury to be sure that you knew Bryce had a knife -- and upon 'provocation'.  The summing-up was fair and was not vitiated by the error referred to in 3(d) of the Grounds of Appeal -- which could and should have been corrected by counsel at the time."
15.	The appellant's then grounds of appeal against conviction drafted by counsel included, but were not limited to, the following: 
"(a) The summing-up was deficient in that the judge failed to invite the jury to consider whether Mair knew that Bryce had a knife in his possession; 
(b) The summing-up was deficient in that the judge failed to remind the jury of all relevant extracts from the evidence which went to the issue of whether Mair did know that Bryce had a knife in his possession; 
... 
(e) The judge failed adequately to put before the jury Mair's defence that in the absence of knowledge on his part that Bryce had any weapon at all, the jury ought not to infer that Mair contemplated or foresaw death or grievous bodily harm being inflicted by Bryce." 
16.	Having been refused leave to appeal by the single judge on paper, both the appellant and Bryce renewed their applications for leave to appeal to the full court.  These applications were heard by a constitution presided over by Watkins LJ on 10th April 1989.  Coincidentally and sadly, the trial judge, Hazan J, had died by then.  Watkins LJ, in the course of giving judgment refusing each of these applicants leave to appeal, said this:
"The contention is that the judge did not effectively and properly direct the jury as to the law on joint enterprise in the circumstances of this case.  We repeat that we cannot agree with that.  That law as affecting Mair was explained by the Judge so that no jury could possibly have misunderstood it and have failed to apply it to the facts as they found them."
Watkins LJ also said that:
"[The summing-up of Hazan J was] conspicuous for the accuracy of its directions on the criminal law, especially in regard to the law on joint enterprise ... " 
He went on to say:
"Mair was convicted on the basis that he was a party to a joint enterprise.  In other words that there had been a determination by both him and Bryce before they entered the pool room that they were going to assault and harm seriously, if not kill, Shepherd or Mulholland or both."
17.	The appellant has been concerned about his conviction over the years and has made applications to the Home Office, who saw no grounds for intervention in April 1992.  But on 24th July 1998 the appellant applied to the Criminal Cases Review Commission for a review of his conviction in the light of a recent decision of the House of Lords relating to the law of joint enterprise and the directions which a court ought to give in those circumstances.
18.	The Commission has made its usual thorough investigations.  Despite those investigations, which have been extensive, the Commission has been unable to locate a copy of the late Hazan J's summing-up or his original notes for trial.  It has therefore been necessary to see whether a reconstruction or part reconstruction can securely be made of at least that part of the judge's direction to the jury central to this appeal, that is to say his direction in relation to joint enterprise.  The Commission have done that reconstruction with the aid of, firstly, the written reasons given by Gatehouse J to which we have already referred when he refused the application for leave to appeal on paper; secondly, what was said by this court, Watkins LJ, when the renewed application was heard by this court; and, thirdly, and coincidentally, by the fact that what was unearthed was some notes which a probation officer called Mr Kaye, for other reasons, made when he was given access to the trial papers of Hazan J by Birmingham Crown Court in July 1989.  Coincidentally, Mr Kaye made a written note or transcript of part of those papers.  The transcript includes a reference to the decision of Anderson and Morris (1966) 50 Cr App R 216; [1966] 2 QB 1.  It also includes these note:
"Assault -- Bryce pulls knife and kills.  Mair not liable.  But if jointly enters to cause GBH doesn't matter if one uses one weapon and other uses or is prepared to use a different weapon or even doesn't know precise nature of weapon other is carrying."
19.	To put it briefly, the reconstruction of Hazan J's direction on joint enterprise concludes that he gave what was a contemporarily correct direction as to joint enterprise but -- and this is accepted on behalf of the Crown on this appeal -- it is acknowledged that an inference can be drawn from material other than the absent transcript that the trial judge did not specifically put to the jury issues (1) whether the appellant knew Bryce had a knife in his possession and (2) whether a broken glass or bottle could be treated as fundamentally different from, or equally dangerous as, a small lockknife in the circumstances of the case.
20.	We recall that Gatehouse J had said "it was not necessary for the jury to be sure that you knew Bryce had a knife" and, as we have just mentioned, that the note which Mr Kaye, the probation officer, made of the trial judge's note included the words "but if jointly enters to cause GBH doesn't matter if one uses one weapon and the other uses or is prepared to use a different weapon or even doesn't know the precise nature of the weapon other is carrying". 
21.	In the absence, as we are satisfied there was, of directions as to the two matters to which we have just referred, it is necessary briefly to refer to recent authority.
22.	The first matter may be taken from the decision of this court in the case of Bentley [2001] 1 Cr App R 307.  That was a case where the court was invited to consider what was regarded as a shift or change in the substantive law.  The Lord Chief Justice, Lord Bingham, said at page 310:
"Rarely has the court been required to review the safety of a conviction recorded over 45 years earlier.  In undertaking that task we conclude: 
(1  We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide 1957.  
(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood.  
(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.  
(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.  
Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time."
23.	In the present case, as indeed in the case of Bentley, a shift in the law has occurred.  It is not necessary to trace the shift in detail but to observe that it centres upon the case of R v Powell and English [1999] 1 AC 1.  In the case of Bentley at page 337, Lord Bingham summarised the present position as to the law in these terms:
"75. It seems to us, in the light of those authorities binding on the trial judge, that his direction to the jury was in accordance with the law as it then stood and was, if anything, favourable to the appellant.  But it was argued that later developments in the law governing the liability of secondary parties to joint criminal enterprises, in particular the recent decision of the House of Lords in Powell and English, rendered his direction unsound.  The relevant law is in our judgment summarised with sufficient accuracy for present purposes in the following propositions advanced on behalf of the Crown: 
(i) Where two parties embark on a joint enterprise to commit a crime and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise."
And some cases are referred to, including Powell and English. 
"(ii)Where the principal kills with a deadly weapon, which the secondary party did not know that he had and of which he therefore did not foresee use by the principal, the secondary party is not guilty of murder. 
(iii)If the weapon used by the primary party is different to but as dangerous as the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill or vice versa (R v English, a reference to the speech of Lord Hutton).
(iv)The secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible."
24.	Accordingly, as is rightly accepted on behalf of the Crown in this case, the question whether the appellant knew Bryce had a knife in his possession and/or the question whether a broken glass or bottle could be treated as fundamentally different from, or equally dangerous as, a small lockknife in the circumstances of the case were matters which it was necessary for the jury to consider and were matters which it was necessary for the judge, in contemporary terms, to give them directions about.
25.	On questions of fact, and taking such material as this court has to be able to look at, a suggestion is made in the skeleton argument prepared on behalf of the prosecution in this case, not only that the appellant had in his possession at the time of this fight a broken glass and/or broken Guinness bottle which he intended to use to cut the person who had struck him in the passageway, but it is also suggested that the evidence could have been sufficient for the jury to be sure that the appellant knew that Bryce had a knife.  For reasons which will appear, it is not, we think, pertinent for this court to reach any conclusion about that. But in our view, and reading the material that is before this court, we think it only a contentious possibility that the appellant knew that Bryce had a knife.  The evidence that anybody knew or saw that Bryce had a knife before it was actually used was, we think, pretty thin.  If we had to do so, we could scarcely conclude that we were sure that a jury properly directed would have reached that conclusion.
26.	As to the question as to whether a broken bottle or glass was fundamentally different from, or equally dangerous as, a small lockknife in the circumstances of the case, we take the view that that was a matter which might have been argued and considered either way.
27.	The relevance of those considerations takes us to a decision of this court in the case of Greatrex and Bates [1999] 1 Cr App R 126.  That was another case which concerned responsibility of one participant in a joint enterprise.  The judgment of the court was given by Beldam LJ, and this is a pertinent passage from page 140 of the report.  He said this:
"In such circumstances, as Lord Hutton pointed out, fine analysis and legal theory have to yield in part to commonsense and more flexible formulation.  Cases in which parties embark upon a criminal enterprise knowing that one or other of them is armed with a potentially lethal weapon are more easily analysed.  Nevertheless it seems to us that upon the basis of Lord Hutton's speech [that is a reference to Lord Hutton's speech in Powell and English] the question whether the actions of one participant went so beyond the common design of the parties is a question to be decided by the tribunal of fact, in this case the jury, after direction in accordance with the formulation of Lord Parker CJ in Anderson and Morris, including the test of foresight at page 120.  The direction given to the jury in Powell was held to be inadequate because the judge at pages 285 and 980: 

		   '... did not qualify his direction on foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle's part which English did not foresee as a possibility, then English should not be convicted of murder.'
In the present case Sedley J did not invite the jury to consider whether the appellant Greatrex foresaw as a possibility the use by Bates of the bar or an equally dangerous weapon.  His direction left it open to the jury to convict Greatrex of murder if they were satisfied that he had an intent to do serious harm and that Bates struck the fatal blow with a similar intent.  Whilst it would have been open to the jury to conclude that the shod foot is as much as a weapon as a bar, and equally dangerous in the sense of being capable of inflicting really serious injury and so not beyond the contemplation or foresight of Greatrex when he joined in the attack, it was for the jury to decide whether that was so or whether the actions of Bates in using the bar were not foreseen by Greatrex at the time when the fatal blow was struck and so were outside the combined purpose.  On the evidence of the pathologist none of the kicks administered to the deceased contributed to his death so that the jury could have concluded that although Greatrex took part in this combined attack intending to do really serious harm (and of this the jury were clearly satisfied) he was not a party to the murder in the sense that his actions did not actually assist or encourage Bates' attack with the bar.  It seems to us that the question framed by the judge in giving Greatrex leave to appeal confirms that he thought such a view was open to the jury in this case.  
As these questions were not left to the jury, we consider that the conviction of Greatrex cannot be upheld."
28.	In our judgment, those considerations apply in the present appeal.  In the present appeal, the jury must, we think, have concluded that they were sure that the appellant was party to a joint enterprise whose joint intention was to cause really serious harm to one or other of the two men, one of whom was murdered.  The victim died from a single knife wound plainly inflicted by Bryce.  There was ample evidence from what he said in interview that the appellant joined in the attack, brandishing a broken bottle with the intention of cutting the person who had struck him in the passageway.  He did not in fact use the bottle because he did not get close enough.
29.	For the appellant to be guilty upon a joint enterprise of murder the jury would need to be sure either that the appellant knew that Bryce had a knife and in that knowledge participated in the joint enterprise; or that, in the circumstances, a broken glass or bottle was equally dangerous as a small lockknife.  These are both questions of fact for the jury.  We are satisfied, for the reasons that we have given, that the jury was not directed to consider either of these matters.  The reason for that is plain to see, because, in the contemporary understanding of the law, such a direction was not required.
30.	As we have said, in so far as it is appropriate for this court to consider them, our tentative summary conclusions would be: firstly, that the jury could not have been sure on the evidence that the appellant knew that Bryce had a knife; secondly, that it was debatable whether a broken glass or bottle was equally dangerous as a small lockknife.  The jury, upon an appropriate direction, might have concluded that it was, but they could well have concluded that it was not.  The important point, however, is that they were not directed to consider these matters and, as Beldam LJ said in Greatrex, the decision was theirs.
31.	As Lord Hutton said in concluding his opinion in the case of Powell and English at page 31 of [1999] 1 AC:
"... there will be cases giving rise to a fine distinction as to whether or not the unforeseen use of a particular weapon or the manner in which a particular weapon is used will take a killing outside the scope of a joint venture, but this issue will be one of fact for the common sense of the jury to decide."
32.	In this case, for the reasons which we have indicated, the jury was not invited or directed to do so.  In these circumstances, we have concluded upon the contemporary understanding of the law that this conviction was not safe.  Accordingly, the appeal against the conviction of murder is allowed, and that decision is set aside.
33.	In those circumstances, there is no dispute but that, upon the evidence which was plainly accepted by the jury, the appellant would properly, had the matter been put before them, have been convicted of affray.  In those circumstances, under section 3 of the Criminal Appeal Act 1968, we substitute for the verdict of guilty of murder a verdict of not guilty of murder but guilty of affray.
34.	In the circumstances that we have described, any sentencing consequence of that is in a sense academic, but that does not render it unimportant.
35.	The maximum penalty for an offence of affray in 1989, as now, was a sentence of three years' imprisonment.  Mr Goss QC has told us that if Bryce had pleaded guilty to murder or even manslaughter, the prosecution, back in 1988, would have accepted a plea to the count 4 of affray from this appellant, and although it was not formally offered he would in those circumstances have offered it.  It is pointed out that, although he was brandishing a very dangerous weapon in circumstances of this fight in a public house pool bar, he did not in fact inflict any injury on anybody and it is suggested that he was not the leader of what became a murderous attack.  He himself at the time was aged 62 and was of previous good character.  He was himself injured in the fracas; and we have been shown a photograph of that injury.  In the circumstances, in our judgment, the right sentence for the substituted verdict of affray is one of eighteen months' imprisonment.  In the circumstances, as we say, that is, for practical purposes, academic, but nevertheless it is the sentence which we substitute.
36.	We are grateful to both counsel.  Thank you very much.
37.	MR GOSS:  My Lords, would you consider the granting of a defendant's costs order in this case?  I appreciate that the appeal has succeeded in part, but not entirely.
38.	LORD JUSTICE MAY:  What are the practical effect of that, Mr Goss?
39.	MR GOSS:  That the appellant's costs will be met out of a different part of public funds than under the existing representation order. 
40.	LORD JUSTICE MAY:  We think the practice is not to do so unless the represented person is actually paying themselves.
41.	MR GOSS:  That is not the case here.  
42.	LORD JUSTICE MAY:  If any sums have been paid under a contribution order, maybe they can be refunded, but, if not, it is academic.