On 11 June 2024, the Judicial Committee of the Privy Council advised His Majesty to allow the appeal against the conviction for the murder of Mr Bastian: a conviction that was recorded on a joint enterprise basis.

Lord Lloyd Jones delivered the opinion of the Board on the case of Bastian v The King [2024] UKPC 14, which originated in The Bahamas.

Philip Rule KC, Daniel Henderson (of No5 Chambers), and Ryszard Humes (of Munroe & Associates in The Bahamas), instructed by Kilian Moran and Bethany Jackson of the Death Penalty Project, represented the appellant before the Privy Council.

In addition to allowing the appeal, the Board has accepted that there should not be any retrial for murder.

The context to the case

On 12th May 2013, the Appellant (aged just 19 years old at the time) was part of a group of young men who were alleged to have taken part in an armed robbery outside a bar in Nassau, The Bahamas. The allegation was that he and others each took part in a robbery of two handbags being carried by two women. The Appellant was unarmed. The bags were snatched by the Appellant and another male who both ran off. However, another, a male named Johnson, then became involved in an altercation with a bystander who remonstrated and pushed him. During the course of that altercation, Johnson produced a gun and shot and killed the deceased.

The Appellant (who handed himself in) and others were later arrested and subsequently charged with murder and armed robbery, both on a joint enterprise basis.

At trial, at the close of the Prosecution case, the only evidence against the Appellant was said to be a confession within two oral statements he was said to have made to two Bahamian Police Officers. He was said therein to have admitted knowing there was a gun, though it was unclear as to when he became aware of that, and he denied shooting the deceased. Mr Bastian denied making the statements at all.

Following oral directions given by the trial judge, including those concerning the ingredients of joint enterprise murder, on 3rd November 2015, the jury convicted Mr Bastian and two others of murder and armed robbery. A further man (Dorfevil, who drove the vehicle involved) was acquitted of murder and armed robbery and convicted of simple robbery.

The Appellant was sentenced to 40 years’ imprisonment. An appeal to the Court of Appeal of The Bahamas was dismissed. The Appellant’s appeal came before the Judicial Committee of the Privy Council on 15 April 2024.

The decision of the Privy Council on the appeal

The Board allowed the appeal on two grounds, each of which was sufficient to demonstrate the unsafety of the conviction.

Firstly, the trial Judge had not given adequate directions to the jury as to the specific intention required for murder and armed robbery in the course of a joint enterprise.

The direction given was one that reflected the error as to the common law principles of joint enterprise (the error of equating foresight with intention, that resulted from Chan Wing-Siu v The Queen [1985] AC 168 and R v Powell and R v English [1999] 1 AC 1) that was subsequently corrected by the judgments of the Privy Council and Supreme Court in R v Jogee; Ruddock v The Queen [2017] AC 387.

That direction that foresight could constitute specific intent itself had never been in accordance with the law of The Bahamas, which was established in Farquharson v The Queen [1973] AC 786, an appeal to the Privy Council from the Court of Appeal of the Bahama Islands in 1973.

The judgment on this appeal has clarified and made certain the broader questions about the proper approach in Bahamian law to joint enterprise, and the matters to be within the scope of any agreement or common purpose that the secondary party has with the principal. It is undoubtedly such as is entirely consistent with the common law elsewhere as confirmed following the judgment of the Supreme Court and Privy Council in R v Jogee; Ruddock v The Queen.

The Privy Council accepted the ground of appeal that the trial judge misdirected the jury as to the necessary ingredients for a common purpose offence. In particular:

1. The judge “erred by directing the jury at a number of points that it was sufficient in law to found a conviction for murder that the appellant realised, foresaw or knew that [the principal] might use the gun to kill or use the gun with an intention to kill” [29]. These misdirections in the summing up were sufficient alone to undermine the safety of the appellant’s convictions [36].

In the course of reaching this conclusion, the Board considered the proper ambit and application of section 12(3) of the Penal Code of The Bahamas (“a difficult provision which has given rise to complications in other proceedings” [32]) which was relied upon by the Court of Appeal, and the Prosecution. At [33] Lord Lloyd-Jones observed that the provision did not assist the Prosecution because:

“it is concerned with the foreseeability of the consequences of a particular act that was intended by an accused person and whether those consequences were intended. In this ground of appeal we are concerned with the prior question whether such an act was intended by the accused person. As Mr Rule put it in his written case on behalf of the appellant, section 12(3) cannot convert an act that one accused did not intend a co-accused to commit (i.e. one not within an agreed common purpose) into one the accused did intend. …before section 12(3) can have any application to a secondary party, that secondary party must be shown to have intended that the principal should act in that particular way. If it is shown that the conduct falls within the scope of the joint enterprise in this way, section 12(3) may then be relevant to the question whether the secondary party intended the consequences of that conduct. However, section 12(3) cannot fix a secondary party with liability for an act by a principal which the secondary party did not intend.”

2. The judge failed properly to direct the jury as to the nature of the common intention or scope of the agreement necessary between the parties. [37]-[38]. The jury ought to have been invited to decide what precisely had been agreed between the appellant and his co-defendants. They should have been invited to decide the scope of any common purpose or design (if any) beyond a plan to rob. The judge ought not to have attempted to describe the content of the agreement herself. There was no attempt to distinguish robbery, armed robbery and murder in defining the scope of the agreement.

3. The Appellant’s further submission was well-founded: that the judge, having identified the specific issue of the presence of a weapon, failed to direct the jury as to the proper approach [40]-[42]. In a number of passages in the summing up knowledge of the gun was presented not as evidence from which an inference of intention might be drawn but sufficient of itself to prove guilt of armed robbery or murder. Knowledge was erroneously equated with intention [41]. Further, the judge erred in failing to direct the jury as to the necessity of determining when the appellant became aware that Johnson was in possession of a gun. Knowledge of the gun could have probative value only if the appellant was aware of it before it had been fired [42].

    The judge’s directions on joint enterprise were seriously defective. Furthermore, while the Court of Appeal acknowledged the principles, it failed to apply them to the summing up in this case. The Board would therefore allow the appeal on this first ground of appeal [43].

    The Appellant’s second ground of appeal was also successful. The judge had wrongly failed to leave lesser alternative counts of robbery or manslaughter to the jury in the Appellant’s case.

    On behalf of the Appellant, it was submitted that the failure to leave these matters to the jury rendered the convictions obtained on an “all or nothing basis” unsafe and unsatisfactory. Both manslaughter and robbery were obvious alternative verdicts within Lord Bingham’s formulation in R v Coutts [2006] 1 WLR 2154, HL. It was submitted that while the prosecution contended for the most serious of criminality, and while the defence at trial averred mis-identification and alibi, there was plainly a middle course that was open to the jury depending upon factual findings that should have been left to the jury to make and apply: [45].

    The judge appeared to have proceeded on the assumption that the Appellant’s statement to police (if made) had only one meaning and was an admission that he had prior knowledge that Johnson was in possession of a gun. In the Board’s view, the judge was not entitled to make any such assumption. The meaning of the statement, if made, was a question which the judge was required to leave to the jury. Not only did the judge withhold that issue from the jury, but she directed the jury on the basis that if the statement was made it was an admission of knowledge of the gun sufficient to found a case of joint enterprise. This was a further reason to conclude that the conviction of the appellant is unsafe [49]. The Board would therefore also allow the appeal on this ground [51].

    Per curiam, the Board also made an observation of practice, which the Appellant’s counsel had invited it to make. At [57] it noted:

    “The trial in these proceedings raised complicated issues of law and fact, including complex issues of joint enterprise, alternative verdicts, cross-admissibility of evidence and inculpatory and exculpatory statements in interview. In the Board’s view the jury would have been assisted and clarity would have been promoted had the judge reduced the necessary directions of law to writing and, after hearing (and where appropriate responding to) any submissions about them from counsel, provided copies to the jury during the summing up. This procedure has now become the norm in most criminal trials in Crown Courts in England and Wales. This course has the advantage of allowing counsel to make submissions in advance of delivery of the summing up on what may be disputed points of law. It encourages clear and concise explanation of complex issues. It is likely to reduce the risk of repetition or contradiction in directions. It assists the jury in understanding and retaining the legal directions and can provide a sound basis for discussion when they retire to consider their verdict. The Court of Appeal may wish to consider whether such a procedure should be followed in The Bahamas”.

    Disposing of the appeal, the Board (humbly advising His Majesty) concluded that:

    1. The errors in the judge’s summing up identified under Grounds 1 and 2 undermined the safety of the convictions for murder and armed robbery, which must be quashed [58].
    2. The directions on joint enterprise were so flawed as to make it impossible for the Board to substitute a conviction for manslaughter on a joint enterprise basis [59].
    3. In the unusual circumstances of this case the appellant should not be retried for murder. The Board accepted that the only evidence capable of supporting the proposition that the Appellant had prior knowledge that Johnson had a gun was so tenuous as to be incapable of supporting a safe conviction for murder [61].
    4. Different considerations applied in the case of joint enterprise manslaughter, where it is sufficient that death has been caused by the infliction of unlawful harm. Accordingly, the matter would be remitted to the Court of Appeal with a direction that it consider whether it is appropriate to order the retrial of the appellant for manslaughter [61].
    5. Similar considerations applied to the conviction for armed robbery. In the circumstances of this case, a retrial for armed robbery would be inappropriate. The judge should have accepted the submission of no case to answer on behalf of the Appellant on the armed robbery charge. However, in returning their verdicts, the jury must have been sure that he was party to a joint plan to rob. Furthermore, the jury must have concluded that the alibi was false and that he was present at the scene with Johnson, Williams and Dorfevil. In the circumstances, the Board considered that the appropriate course was to substitute a conviction for robbery and to remit the matter to the Court of Appeal for sentence on that charge [62].

      The judgment is available here

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