Supreme Court refuses to grant appeal of joint enterprise murder conviction

In this determination (DPP v Martin Kelly), the Supreme Court refused Kelly leave to appeal against his conviction, under joint enterprise, for the murder of Andrew Burns in Donegal in February 2008. Dismissing his application, the Court determined that Kelly had not met the constitutional threshold for an appeal, as the law on joint enterprise is clear:

A person embarking on a joint enterprise and realising that a co-conspirator, meaning in this instance someone whom he is assisting, is armed with a deadly weapon may reasonably, depending on the circumstances, have an inference raised against that person that he knew that if necessary that deadly weapon would be used against a victim.

Background

On the 12th of February 2008, Kelly brought Andrew Burns to a location in County Donegal where he knew others intended to shoot Burns in the knee as a punishment. Once there, Burns tried to escape and was shot twice, in the shoulder and back. Burns died from those wounds. Kelly then drove the others involved away from the scene, and he assisted with the disposal of the weapon.

In December 2011, the Special Criminal Court convicted Kelly of the murder of Andrew Burns under joint enterprise. In 2016, the Court of Appeal (here) dismissed an appeal of that conviction. Kelly applied to the Supreme Court for leave to appeal to that court.

In his application for leave (here), Kelly claimed three grounds:

1. The Court of Appeal erred in law in failing to apply the legal principle in joint enterprise law that where death results from an action that “goes beyond what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of the unauthorised act.”; and in appearing to hold instead that “a murder conviction is recorded if there was an intention to cause at least serious harm and death results” – even if the action causing death went beyond specific agreement of the accused.

2. The Court of Appeal erred in law in upholding the Appellant’s conviction for murder having regard to the fundamental difference between the act which caused death and the act contemplated and agreed to by the Appellant.

3. The Court of Appeal erred in law in appearing to hold that it was not necessary for the trial Court to address whether the act of shooting into the chest deliberately to kill was fundamentally different to the act of shooting into the knee deliberately to cause serious injury but specifically not to kill; and in appearing to hold instead that the question for the Court of Appeal was whether the deliberate assassination “was so fundamental a departure as to absolve Mr. Kelly from responsibility for the murder.”

Refusing grant to appeal, the Court stated:

12. The situation with regard to this case is that the law under section 4 of the Criminal Justice Act 1964 is clear. The decision of the Supreme Court of the United Kingdom did not influence the law in this country because the law in this country has always been that there is no constructive liability in relation to murder. A person embarking on a joint enterprise and realising that a co-conspirator, meaning in this instance someone whom he is assisting, is armed with a deadly weapon may reasonably, depending on the circumstances, have an inference raised against that person that he knew that if necessary that deadly weapon would be used against a victim. The classic case of this is a bank robbery where someone waits in a car while his companions, armed with guns or a gun, go to hold up if a bank. It is knowledge of the presence of the weapons from which an inference may be made that the person in the car intended that anyone opposing the enterprise is to be met with deadly force. It is not, however, necessary to make that inference: it is one which may arise and not one which the court is in anyway obliged to make. It is all dependent on the evidence. Each person accused of murder must have intended to kill or cause serious injury for a murder conviction to result. This, however, was not a case where it was intended to shoot off the tip of someone’s finger, as the argument made on behalf of Martin Kelly has developed. Instead, it was a case where a group of people decided to cause someone a serious injury. When that person ran away and the gun jammed, the victim was shot twice, once to the shoulder and then in the back, perhaps as he fell or stumbled or was bent forward in running in terror. That is the same, as a matter of law, as a serious injury which leads to the death of someone by, for instance, blood loss.

13. There is therefore no lack of clarity in the law and it is not necessary to have a further consideration of this area through a further appeal.

Advertisements
Leave a comment

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: