R v O’Flaherty [2004] EWCA Crim 526

Key point

  • Withdrawal from a joint enterprise that is spontaneous rather than pre-planned can be possible by disengaging without communication to other perpetrators

Facts

  • Three defendants, F, R and T joined in an attack on the victim
  • Subsequently, there was a second attack on the victim by others during which the victim sustained fatal injuries
  • F stood by the second attack but did not join in, R and T had left
  • All three were convicted murder

Held (Court of Appeal)

  • Appeal allowed for R and T – they had not been part of the second attack
  • Appeal dismissed for F – F’s presence during the second attack was enough to show that he aided and abetted in the murder

Mantell LJ

  • ‘Whether the defendant had done enough to withdraw from a joint enterprise is a question of fact and degree for the jury. Account will be taken inter alia of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal’: [60]
  • It is not necessary for reasonable steps to be taken to prevent the crime for there to be effective withdrawal: [60]
  • While communication of withdrawal is a necessary condition for disassociation from pre-planned violence it is not necessary when the violence is spontaneous: [62]