“May Not” Is Not Enough: Burden of Disproving Self‑Defence for Secondary Parties and the Decisive Role of Route‑to‑Verdict Directions — Cunningham & Ors v R [2025] EWCA Crim 662

Note on reporting restrictions: The judgment records that section 45 Youth Justice and Criminal Evidence Act 1999 restrictions apply to the identification of under‑18 witnesses, and that a section 4(2) Contempt of Court Act 1981 order postpones publication of any report until the conclusion of any retrial. Any commentary should be read and used consistently with those restrictions.

Introduction

This appeal arises from the fatal stabbing of 16‑year‑old Mikey Roynon at a crowded birthday party in Bath on 10 June 2023. Three 16‑year‑old defendants (now 17) from Devizes — Shane Cunningham (“Shane”), Cartel Bushnell (“Cartel”), and Leo Knight (“Leo”) — were tried at Bristol Crown Court. Shane was convicted of murder; Cartel and Leo were convicted of manslaughter as secondary parties to a joint enterprise. Each had also faced and, in some instances, admitted bladed article offences.

At the heart of the appeal is a point of high practical importance in criminal trials: how the burden and standard of proof on self‑defence must be directed to the jury where the prosecution alleges secondary liability (assistance/encouragement) in a joint enterprise. The Court of Appeal held that a seemingly small wording choice in the Route‑to‑Verdict (“were not or may not have been acting defensively”) amounted to a material misdirection of law that reversed the Crown’s burden and rendered the manslaughter convictions of Cartel and Leo unsafe. Shane’s conviction was unaffected and his appeal was dismissed.

Beyond this pivotal holding, the Court also addressed submissions on “no case to answer” for Cartel and Leo, the proper scope of directions on self‑defence for Shane (particularly whether the first, subjective limb should have been withdrawn from the jury), and case management issues around whether Shane had sufficient time and support to decide if he would give evidence.

Summary of the Judgment

• Outcome:
  • Shane’s application for leave to appeal against conviction for murder was refused on both grounds advanced (self‑defence direction and time to decide to testify).
  • Cartel and Leo were granted leave and succeeded on the ground that the judge materially misdirected the jury on self‑defence in the Route‑to‑Verdict and Legal Directions. Their manslaughter convictions were quashed as unsafe.
  • Cartel’s and Leo’s other conviction grounds (principally “no case to answer”) were rejected on the merits.
  • Sentence appeals by Cartel and Leo fell away as a consequence of their convictions being quashed.
• Core legal holding: Where self‑defence (or defence of others) is in issue for alleged secondary parties, the prosecution must make the jury sure that the secondary party was not acting defensively. Directions that allow conviction if the jury are sure the secondary party “was not or may not have been acting defensively” reverse the burden and are a material misdirection, not cured by correct statements elsewhere, particularly when embedded in the Route‑to‑Verdict.
• No case to answer: The trial judge correctly left the cases against both Cartel and Leo to the jury, given the ABE account of the sole eyewitness, the surrounding circumstances, and in Leo’s case, the forensic blood spatter evidence and his subsequent conduct.
• Self‑defence for Shane: The judge properly left both limbs of self‑defence to the jury. On the evidence, the jury could rationally conclude Shane did not genuinely believe force was necessary at the moment of stabbing (limb 1 remained live). Exclusion of a witness’s opinion on why Shane acted was correct as inadmissible opinion.
• Case management: The judge afforded sufficient time and support for Shane to decide whether to give evidence; the court correctly declined to enter the arena by directly interrogating the defendant’s reasons.

Analysis

Precedents and Authorities Cited

• R v KL [2021] QB 831; [2021] EWCA Crim 200: Cited to confirm there is no statutory right of appeal against a post‑conviction reporting restriction ruling; the proper route is judicial review. The Court noted the point but it played no part in the substantive appeal.
• R v Miah [2018] EWCA Crim 563: Quoted for the fundamental importance of accurate directions on the burden and standard of proof. It underpins the Court’s conclusion that misstatements going to the Crown’s burden on self‑defence are fatal.
• R v Walsh [2021] EWCA Crim 825 and Kwan Ping Bong v R [1979] AC 609: Cited in argument regarding circumstantial evidence and the need for compelling inferences consistent only with guilt. The Court held that, in context, the evidential matrix against Leo met the Galbraith threshold to go to the jury.

The Legal Reasoning

1) The pivotal error: burden of proof on self‑defence for secondary parties

The Court scrutinised three interlocking directions. In the Route‑to‑Verdict, the judge asked whether the prosecution had made the jury sure that Cartel “intentionally encouraged/assisted” Shane and that his acts “were not or may not have been defensive.” An almost identical formulation appeared for Leo, and paragraph 31 of the Legal Directions used the same phrase.

Although other parts of the directions correctly explained that the prosecution bears the burden and must make the jury sure, the Court held these “may not” formulations were fatal for three reasons:

• Reversal of the burden: Saying the jury can convict if they are sure a defendant “may not” have been acting defensively impermissibly lowers the Crown’s burden. The correct test is that the Crown must make the jury sure the defendant was not acting defensively. If the jury think the defendant may have been acting in self‑defence, they must acquit (self‑defence being a complete defence once raised).
• Route‑to‑Verdict primacy: The Route‑to‑Verdict is the decision tool the jury is expressly directed to use sequentially. An error within it is not neutralised by correct statements elsewhere; it guides the ultimate answers. The Court quoted the judge’s own oral emphasis that jurors should work through each question.
• Materiality: This misdirection went to a central live issue (self‑defence of alleged secondary parties) and to a matter of principle (the Crown’s burden). Per Miah, such errors undermine safety of the verdict.

Result: Manslaughter convictions of Cartel and Leo quashed as unsafe.

2) Self‑defence for the principal (Shane): limb 1 was properly left to the jury

Shane argued the judge should have withdrawn the first limb of self‑defence (the defendant’s subjective belief that force was necessary) and left only proportionality. The Court rejected this. On the sole eyewitness J’s evidence, there was a time gap between Mikey’s swing (which did not connect and occurred when Mikey was not within touching distance) and the fatal stab. The jury could rationally infer revenge or mutual fighting, rather than a genuine belief that force was necessary at the moment of the stab. Therefore both limbs of self‑defence had to be left.

The Court also upheld the exclusion of J’s ABE statement expressing an opinion on why Shane acted (“anyone else would have done the same”). That was inadmissible opinion from a lay witness on an ultimate issue.

3) “No case to answer” for Cartel and Leo: properly rejected

Cartel argued that J’s change of account (ABE vs trial) removed any evidential basis that Cartel had drawn a knife before the stabbing, while Leo argued that the totality of evidence could not place him on the decking with a knife at the crucial moment. The Court held:

• Cartel: A reasonable jury could prefer J’s near‑contemporaneous ABE account (that Cartel had a knife out on the decking) over his trial testimony, and contextual evidence (including the wounding of Stacey Davies and Cartel’s own statements) supported the inference. The issue was for the jury.
• Leo: Although J did not place Leo on the decking, his account did not exclude the possibility, and the forensic evidence (Mikey’s blood on the back and front of Leo’s hoodie, airborne spots on Leo’s knife, and blood on his trousers) taken with the surrounding facts (group travel with knives; “mandem come” call; disposal of jacket and knife; inconsistencies and lies) provided a case to answer that a jury could properly find proved.

In short, the Galbraith threshold was met for both. The misdirection point, not the sufficiency of evidence, necessitated quashing Cartel’s and Leo’s convictions.

4) Time/support for Shane’s decision whether to testify

Given Shane’s vulnerabilities, the defence argued he needed more time and judicial intervention to reconsider his last‑minute decision not to give evidence. The Court disagreed: the prosecution case had closed over a week earlier; the judge allowed time that morning; counsel, the intermediary, YOT workers and his mother (by telephone) were engaged; and it was not for the judge to interrogate the defendant’s reasons or to “enter the arena.” There was no unfairness rendering the conviction unsafe.

5) The joint enterprise framework applied

The Court endorsed the trial judge’s orthodox direction that secondary liability requires assistance or encouragement with the requisite intent; mere presence is not enough, but presence with intent to provide backup or to add to a hostile “force of numbers” can suffice. The core misdirection was not about what amounts to “participation,” but about the self‑defence overlay and who bears the burden when that defence is in issue for secondaries.

Impact and Significance

• For trial judges:
  • Extreme care is required when embedding defences into Routes‑to‑Verdict. A single phrase such as “were not or may not have been acting defensively” can invert the burden. Where self‑defence is raised for secondary parties, ensure the Route‑to‑Verdict states the prosecution must make the jury sure the defendant was not acting defensively.
  • Correct general directions elsewhere will not necessarily cure a misstatement in the decision tree the jury are instructed to follow.
  • Where evidence supports competing inferences (retaliation vs defence), do not withdraw limb 1 of self‑defence; it remains for the jury.
• For prosecutors:
  • Scrutinise proposed written directions and Route‑to‑Verdict for inadvertent burden shifts, especially in joint enterprise cases and where defensive vs offensive use of a weapon is live.
  • Be ready to justify reliance on near‑contemporaneous ABE accounts where a witness’s trial account diverges, by pointing to timing, detail, and corroborative context.
• For defence practitioners:
  • In joint enterprise cases, insist on a clean formulation: if the defendant may have been acting defensively, the jury must acquit of principal and secondary liability alike.
  • Where the evidence arguably compels the conclusion that force was necessary at the relevant moment, seek withdrawal of limb 1; but recognise the Court’s caution against removing that issue where revenge or a break in the immediate threat can sensibly be inferred.
• For appellate courts and case management:
  • This case illustrates that material misdirections embedded in a Route‑to‑Verdict are likely to be decisive notwithstanding earlier correct statements of law.
  • Courts will be slow to criticise case management decisions that avoid judicial “entering the arena,” provided counsel have adequate opportunity to advise and special measures are appropriately considered.
• Substantive law consolidation:
  • The judgment re‑emphasises that self‑defence for the principal, if proven or left in reasonable doubt, is a complete defence and exculpates secondary parties alleged to be assisting/encouraging the principal’s unlawful violence.
  • It confirms the Crown’s unyielding burden to disprove self‑defence beyond reasonable doubt for each defendant for whom the defence is live, including alleged secondaries.

Complex Concepts Simplified

• Self‑defence: two limbs:
  • Limb 1 (subjective): Did the defendant believe (or may he have believed) that it was necessary to use force to defend himself or another at that moment?
  • Limb 2 (objective/proportionality): If so, was the force used reasonable in the circumstances as the defendant believed them to be?
  • If the jury think the defendant may have been acting in self‑defence, they must acquit of offences requiring unlawful force.
• Secondary liability (joint enterprise):
  • A person can be guilty as a secondary party if, by words or conduct, they assist or encourage the principal to commit the offence with the requisite intent. Mere presence is not enough, but presence with intent to back up or contribute to a hostile group can be.
  • If the principal was acting in lawful self‑defence, there is no “unlawful” offence for the secondary to join in; alleged secondaries are likewise not guilty.
• Route‑to‑Verdict: A written set of sequential questions given to the jury to structure deliberations. Because jurors are told to follow it step‑by‑step, an error here can be critical even if earlier directions were correct.
• “No case to answer”: A submission that, taking the prosecution’s case at its highest, no reasonable jury properly directed could convict. If rejected, the case goes to the jury.
• ABE interview: “Achieving Best Evidence” — a recorded interview protocol for vulnerable witnesses. ABE accounts close in time to events can be powerful; but opinion statements (e.g., why a defendant acted) are usually inadmissible.
• Material misdirection: A legal error in jury directions on a central issue (e.g., who bears the burden) that risks an unsafe verdict.
• Reporting restrictions:
  • s.45 YJCEA 1999: Protects the identity of under‑18 witnesses/defendants.
  • s.4(2) Contempt of Court Act 1981: Permits postponing publication to avoid prejudice to future proceedings (e.g., a retrial).

Practical Drafting Takeaways (for Directions and Routes‑to‑Verdict)

• When self‑defence is live:
  • Use: “Are you sure the defendant was not acting in self‑defence/defence of another?”
  • Avoid: “Are you sure the defendant was not or may not have been acting defensively?”
• Mirror the burden consistently across:
  • General Legal Directions
  • Written Legal Directions
  • Route‑to‑Verdict questions
  • Oral summing‑up
• Audit for consistency whenever revised drafts are circulated; late edits often introduce subtle inversions.

Conclusion

Cunningham & Ors v R sharpens a critical point of trial practice and substantive principle: when self‑defence is in play for alleged secondary parties, the prosecution must disprove it beyond reasonable doubt. Directions that allow conviction because a defendant “may not” have been acting defensively impermissibly dilute and invert that burden. Because juries are directed to follow the Route‑to‑Verdict step‑by‑step, an error within it will seldom be cured by correct formulations elsewhere. On that basis, the Court of Appeal quashed the manslaughter convictions of Cartel and Leo.

On the other issues, the Court endorsed the trial judge’s approach: self‑defence’s first limb remained a live jury issue on the evidence; exclusion of a witness’s opinion on the defendant’s motive was correct; there was a case to answer for both secondaries; and the judge’s case management of Shane’s decision whether to testify was unimpeachable.

The decision will resonate in joint enterprise prosecutions, particularly those involving spontaneous, chaotic violence with weapons: it reinforces the absolute clarity needed when translating burdens and defences into the practical, sequential language that juries use to reach verdicts.