R v Rafferty [2007] EWCA Crim 1846

Rafferty, aged 17, participated in an early stage assault and robbery of Ben Bellamy but left before co-defendants stripped, dragged and drowned the victim. The Court of Appeal held the drowning was a new intervening act, so Rafferty’s manslaughter conviction as a secondary party was quashed.

Facts

The appellant, Andrew Paul Rafferty, and two co-defendants, Joel Ison Taylor and Joshua Declan Thomas, encountered the 17-year-old deceased, Ben Bellamy, during the early hours of 17 September 2005 on Swansea seafront. All were of similar age.

The co-defendants subjected Ben Bellamy to a serious assault on the beach involving punching, kicking and stamping. The evidence conveniently divided the violence into two stages: pre-departure assaults (while Rafferty was present) and post-departure assaults (after he left).

Lord Justice Hooper summarised the sequence, noting that before being drowned the deceased:

The court described the pre- and post-departure assaults as follows:

During the pre-departure stage, eyewitness Matthew Jones observed Taylor and Thomas repeatedly kicking, stamping and punching Ben Bellamy on the beach while Rafferty was initially standing a few yards away on the path. Jones’ account, as summarised by the trial judge, included that Rafferty eventually came down onto the beach and intervened in the assault:

“Rafferty came onto the beach and he knelt down on the beach and as Ben Bellamy got onto his back to try to get up he elbowed him in the back to keep him down and he said: ‘This is all you had to do to keep him down’.”

The judge also directed the jury to Jones’ evidence that when Rafferty returned to the promenade he attempted to call off the others:

“That is when Rafferty got back onto the prom, he said to Taylor and Thomas: ‘Come on boys, leave it’.”

Shortly after Rafferty left with Ben Bellamy’s debit card, another witness, Timothy Parker, saw Taylor and Thomas on the beach continuing to stamp on a person lying on the ground, dragging him in a “rag dollish” manner and then engaging in apparently staged kicking. Parker assumed it was drunken horseplay and left. The medical evidence established that Ben Bellamy’s immediate cause of death was drowning: he had been stripped naked, dragged some distance and taken into the sea by Taylor and Thomas, probably while unconscious or severely weakened from the assault, and drowned at about 5.00 am. Rafferty returned some 40 minutes later, after unsuccessful attempts to use the stolen debit card, by which time Bellamy was dead and the co-defendants had left.

The pathologist and other medical experts agreed that some blunt force injuries were inflicted after Bellamy had been stripped naked, i.e. after Rafferty had departed. While death was caused by drowning, the pathologist noted that this did not mean the blunt force injuries, particularly to the head, were not implicated in the mechanism of death. It was possible that, but for the drowning, Ben Bellamy would have fully recovered from those injuries.

Rafferty had pleaded guilty to robbery of the debit card but denied knowledge of the stolen mobile phone. At trial he was acquitted of murder but convicted of manslaughter as an alternative on the indictment; Taylor and Thomas were convicted of murder. None of the defendants gave evidence.

Issues

The appeal concerned the criminal liability of a secondary party who has withdrawn from a joint attack before its conclusion. Specifically, the court had to consider:

1. Secondary liability after withdrawal

Whether a secondary party, who participated in an initial violent assault but then effectively withdrew and left the scene, can still be criminally liable for manslaughter based solely on the consequences of the pre-departure injuries, when the fatal act (drowning) was carried out by the principal offenders after his withdrawal.

2. Causation and novus actus interveniens

Whether the subsequent deliberate act of drowning by Taylor and Thomas constituted a novus actus interveniens that broke the chain of causation between any injuries for which Rafferty was responsible and Ben Bellamy’s death.

3. Scope of joint enterprise

On the joint enterprise route, whether, if Rafferty had remained party to a continuing enterprise to assault and rob, the deliberate drowning was a fundamentally different act from what he contemplated (kicking, punching and stamping) within the principles of R v Powell and English and later refined in Rahman.

The trial judge structured the case for the jury by two alternative routes for Rafferty’s possible liability: a “causation basis” and a “joint enterprise” (or “joint responsibility”) basis.

Judgment

The trial judge’s directions

On the causation basis, the judge summarised the prosecution case in these terms:

The prosecution say, that despite the fact that the pathological cause, the medical cause, of Ben Bellamy’s death was drowning, the blunt force injuries, which Ben Bellamy suffered before he died from drowning, made a significant contribution to his death, because they either rendered him unconscious, so that he was unable to resist being drowned by Taylor or Thomas or if he remained conscious, those injuries reduced his ability to resist drowning.

The injuries to which Rafferty was party were inflicted with intent to cause really serious harm, one of the intents adequate for murder, and if you find that causal link between the injuries and the death, Rafferty the prosecution say will be guilty of murder.

The defence case as recorded by the judge included that Rafferty had withdrawn from any further violence, that he lacked intent to cause really serious harm, and that the drowning broke any causal link:

Fourthly, whatever Rafferty’s responsibility might be for the blunt force injuries sustained by Ben Bellamy, the drowning of Ben Bellamy by Taylor and Thomas was such a new and different intervening event that it breaks any connection between what Rafferty did and the death of Ben Bellamy

The judge also told the jury that Rafferty’s words on leaving the beach supported his alleged withdrawal:

On behalf of Rafferty, it is said that when he said to Taylor and Thomas: “Come on boys, leave it”, he was making it clear to them that he was dissociating himself and withdrawing from any further violence upon Ben Bellamy.

He gave a standard direction on withdrawal, including that:

If it is not practicable or reasonable to communicate the withdrawal, a withdrawal might be effective depending on the circumstances of the case by for example, ceasing to attack … or walking away from the attack.

On the causation route, the judge directed that Rafferty’s liability depended on whether the blunt force injuries for which he was responsible made a significant contribution to death and whether the drowning was not a new intervening act that destroyed the causal connection:

Before you could find Rafferty guilty of murder or manslaughter, on this causation basis, the prosecution would have to make you sure of each of the following matters. Firstly, that the blunt force injuries sustained by Ben Bellamy for which Rafferty bears responsibility if any, made a significant contribution to the death of Ben Bellamy. Now I emphasise the words ‘for which Rafferty bears responsibility’ because those injuries have to be identified by you if you can identify them and their effect on Ben Bellamy considered by you separately from any blunt force injuries caused to Ben Bellamy for which Rafferty bears no responsibility. Therefore, if you were to conclude for example that Rafferty bears responsibility only for injuries caused to Ben Bellamy, before Rafferty left the scene to go to the cash point, it would only be those injuries which you could consider in this context.

Secondly: that those injuries made a significant contribution to the death by drowning of Ben Bellamy, either by rendering him unconscious and unable to resist being drowned by Taylor and Thomas or if he remained conscious, by reducing his ability to resist drowning. The prosecution do not have to prove that the blunt force injuries for which Rafferty was responsible were the only cause of death or even the main cause of death. Nor does it matter that the injuries for which Rafferty was responsible would not themselves have caused the death of Ben Bellamy. However, it is necessary for the prosecution to prove so that you are sure that those injuries contributed significantly to Ben Bellamy’s death.

Thirdly, that the drowning of Ben Bellamy by Taylor and Thomas was not such a new and intervening act in the chain of events, which was so completely different from the injuries for which Rafferty was responsible, that it overwhelmed those injuries and destroyed any causal connection between them and the death of Ben Bellamy.

The judge made clear that this causation route was independent and could found liability even if the joint enterprise route failed.

The Court of Appeal’s analysis

The appellate court had to determine whether, on the assumption that the jury were not sure that Rafferty remained party to any post-departure violence, the “causation route” could nonetheless properly sustain the manslaughter conviction.

The court considered it likely, given the manslaughter verdict and acquittal of murder, that the jury were not sure Rafferty remained a party to the violence after he left the beach. If so, they must have accepted that he had effectively withdrawn from any joint enterprise to assault at that point, even if a joint enterprise to rob (involving the debit card) continued in a limited sense.

Both prosecution and defence accepted the general principle that a secondary party who withdraws can still be liable for the consequences of injuries inflicted before withdrawal, and that had Ben Bellamy died from those pre-departure injuries alone Rafferty could have been guilty of manslaughter. Equally, both accepted that if, after the assailants left, an independent third party later killed the victim, the original attackers would not be liable for homicide because the third party’s act would be a new and independent cause of death.

The crucial question therefore became whether Taylor and Thomas’s later act of drowning, committed after Rafferty had withdrawn, was properly to be regarded as a new and intervening act (novus actus interveniens) that broke the chain of causation attributable to Rafferty’s earlier assistance or encouragement.

The court examined leading academic commentary, including Glanville Williams and Hart & Honoré, emphasising that where a subsequent actor intervenes deliberately but is not acting in concert with the first actor or in complicity with him, the first actor is normally relieved of criminal responsibility for the ultimate harm. Reliance was placed on formulations that distinguished between interventions by independent actors and acts done “in concert” or “in complicity” with the original defendant.

Mr Spencer for the Crown argued that some joint enterprise remained in being between Rafferty and the co-defendants because Rafferty and they intended to meet again on the beach to share the proceeds or secure the right PIN, so they were still, in a sense, acting together. The Court of Appeal rejected that reasoning, holding that if Rafferty had withdrawn from the joint enterprise to assault, there was no relevant violent joint enterprise still running. The residual agreement concerning the robbery proceeds did not suffice to maintain complicity in the post-departure violence.

In light of this, and given that the immediate cause of death was the deliberate drowning by Taylor and Thomas after Rafferty had left, the court concluded that the drowning was indeed a new and intervening act by the principals that broke the causal chain as regards Rafferty’s earlier participation as a secondary party. The direction that allowed the jury to convict on the causation basis, even assuming effective withdrawal, was therefore unsustainable.

The court expressed its conclusion on the novus actus question directly:

We have reached the conclusion that no jury could properly conclude that the drowning of Ben Bellamy by Taylor and Thomas was other than a new and intervening act in the chain of events.

The court further reasoned that, even if Rafferty had remained party to a joint enterprise to assault, his liability as a secondary party would have been governed by R v Powell and English and the later analysis in Rahman. On that approach, the jury would have needed to ask whether the fatal drowning was fundamentally different in nature from the type of harm (kicking, punching, stamping) that Rafferty foresaw his co-defendants might inflict. The Court of Appeal agreed with defence counsel that, on the unusual facts, no properly directed jury could conclude that a deliberate drowning was not of a fundamentally different nature from the earlier assault. This reinforced the conclusion that Rafferty could not properly be held liable for homicide as a secondary party.

The court also rejected an argument that Rafferty could be treated as a principal offender to the killing. Applying the conventional distinction between principals (those who cause the prohibited result) and accessories (those who encourage or assist), and drawing on academic authority, the court held that Rafferty’s role, at most, made him a principal to an assault but only a secondary party in relation to the later killing.

Disposition

Because the causation route, as left to the jury, wrongly permitted conviction notwithstanding effective withdrawal and an intervening deliberate killing by the principals, the manslaughter conviction was unsafe. The joint enterprise route could not sustain a conviction on these facts either, given the fundamentally different nature of the drowning and the likelihood that the jury had not been sure he remained party to the post-departure violence.

The Court of Appeal therefore allowed the appeal and quashed Rafferty’s conviction for manslaughter.

Implications

This decision clarifies the limits of secondary liability where a participant in a joint assault withdraws before the fatal act and the principals then commit a further, qualitatively different act of violence that directly causes death.

First, it confirms that while a withdrawing secondary party may remain liable for homicide if death results from injuries inflicted before withdrawal, he is not liable where a later deliberate killing by the principals constitutes a novus actus interveniens, breaking the chain of causation.

Secondly, the case illustrates that the existence of some continuing agreement related to another offence (such as sharing robbery proceeds) does not preserve complicity in later unanticipated violence once effective withdrawal from the violent enterprise has occurred.

Thirdly, the judgment applies and reinforces the principles in Powell and English and Rahman on joint enterprise: a secondary party is not liable for a killing where the fatal act is of a fundamentally different nature from what he foresaw the principals might do.

Overall, R v Rafferty underscores the importance of carefully distinguishing between liability for prior assaults and liability for a subsequent, significantly different fatal act, and of ensuring that juries are properly directed on withdrawal, causation, and the concept of a new intervening act.

Verdict: Appeal allowed; the conviction for manslaughter was quashed.

Source: R v Rafferty [2007] EWCA Crim 1846