Armed Group Violence: Joinder, Secondary Liability at Half-Time, and the Limits of Fresh Psychiatric Evidence on Appeal

1. Introduction

This appeal concerned fatal and serious knife violence arising from a fast-moving street confrontation involving a group of four young men (“the group”). After a trial at the Central Criminal Court, one appellant (the principal stabber) was convicted of murder; the others were convicted as secondary parties. Two victims were central to the case: the deceased (“J.”) who was stabbed through a car door/window, and a second victim (“M.A.”) who was stabbed while fleeing.

The principal issues on appeal were:

• Joinder: whether an earlier violent disorder (two days before, same area, same group, knives) was properly tried together with murder/GBH counts.
• No case to answer (secondary liability): whether the evidence could support that the non-stabbers intentionally assisted/encouraged the principal offences, despite spatial separation at key moments.
• Summing-up fairness: whether the judge’s recap of evidence was “gravely unbalanced”, including complaint about not summarising an interview where an appellant did not give evidence.
• Self-defence and secondary parties: whether (post-R v Cunningham and others [2025] EWCA Crim 662) the jury needed a distinct direction on what the secondary party believed about defensive force.
• Fresh evidence: whether new psychiatric material justified adding diminished responsibility on appeal (Criminal Appeal Act 1968, s.23; Homicide Act 1957, s.2).
• Sentence: whether minimum terms for murder/detention at His Majesty’s Pleasure were manifestly excessive, particularly applying totality for additional serious offences.

2. Summary of the Judgment

Conviction

• Joinder upheld: sufficient factual/legal “nexus” justified trying the earlier violent disorder with the later homicide/GBH counts.
• No case submissions rejected: the evidence, taken at its highest, was capable of establishing secondary liability for murder/GBH in an armed group confrontation; analysing precise positioning and moments was for the jury, not a half-time stop.
• Summing-up complaint rejected: no unfairness; no timely complaint at trial; the jury were directed to relevant materials and the judge offered counsel opportunities to correct omissions.
• Cunningham-type direction not required on these facts: because no secondary party case was advanced asserting a belief that the principal’s stabbing (to cause really serious harm) was necessary and reasonable defensively.
• Fresh psychiatric evidence refused: the proposed diminished responsibility route had no realistic prospect on the balance of probabilities and was contradicted by contemporaneous material and the appellant’s own trial account.
• All renewed applications for leave to appeal conviction refused.

Sentence

• Principal stabber: minimum term reduced from 29 years (less remand) to 27 years (less remand) on totality; Court found the original minimum term manifestly excessive.
• Youth offender (attempted murder principal): minimum term reduced from 23 years to 20 years (before remand deduction) given age/mitigation and proportionate uplift for additional offences.
• Youth offender (secondary party): minimum term reduced from 16 years to 14 years (before remand deduction) reflecting childhood exploitation and mental health vulnerabilities making custody harder.
• Other sentences left unaltered; Court also noted an administrative recording error (a concurrent term wrongly entered as 6 months instead of 6 years) requiring correction.

3. Analysis

3.1 Precedents Cited and Their Role

3.2 Legal Reasoning

A. Joinder: “series” and prejudice

The Court applied the statutory/rules framework (Indictments Act 1915, s.4; Criminal Procedure Rules 2020, r.3.29(4)) through the lens of Kray and Ludlow. It treated “nexus” as a practical evaluation: close timing (two days), same group, continued association, same weapons, and geographic proximity transformed the earlier violent disorder from mere “bad character” atmosphere into probative context about how the group operated when confronted by a car-based rival/hostile group.

The Court’s reasoning indicates a relatively robust tolerance for joinder where: (i) the same participants reappear; (ii) weapons and modus are consistent; and (iii) the earlier event helps the jury evaluate whether later violence was an isolated self-defensive reaction or part of an “armed readiness” to use serious violence.

B. Half-time submissions in armed group violence: why this case went to the jury

The Court’s most practically significant reasoning lies in its approach to Galbraith in the context of secondary liability post-Jogee. It rejected “snapshot” arguments (who stood where at the second of the fatal stabbing) as determinative at half-time. Instead it endorsed a “whole-body-of-evidence” approach: the prior violent disorder, the group travelling together while armed, the coordinated response to hostility, and the division of roles (two chasing, two at the car) were capable of supporting inferences of intentional assistance/encouragement and conditional intent to cause really serious harm.

This is not a relaxation of Galbraith; it is an application of it to situations where the evidence is circumstantial, multi-stranded, and inferential. The Court effectively treated “armed presence and continued participation” as potentially constituting assistance/encouragement (depending on intention), particularly where the group’s conduct foreseeably isolates victims and enables a principal’s stabbing.

C. Self-defence and secondary parties after Cunningham

The Court acknowledged that the jury directions did not explicitly ask, for each secondary party, whether that secondary party believed the principal’s stabbing to be necessary and reasonable defensively. However, it found the omission immaterial because the case was not run on that basis: no appellant asserted (in evidence or interview) that they believed it was necessary and reasonable for the principal to stab with intent to cause really serious harm for defensive purposes.

The Court’s approach is therefore conditional: Cunningham-style granular directions for secondary parties are required when the issue is live on the evidence and the way the case is advanced, not merely because self-defence is raised in general terms.

D. Fresh psychiatric evidence and diminished responsibility: why section 23 failed

The Court structured the section 23 analysis around: (i) whether the evidence could afford a ground for allowing the appeal; and (ii) whether diminished responsibility (Homicide Act 1957, s.2 as amended) had a realistic prospect on the balance of probabilities.

Even assuming a recognised condition, the Court saw no prospect of proving substantial impairment (rational judgment or self-control) at the time. It relied heavily on contemporaneous psychiatric opinion (earlier report explicitly rejecting schizophrenia/psychosis at the time) and, critically, the appellant’s detailed and rational trial account of perceptions and choices during the incident.

The Court treated the application as an example of the caution flagged in CCRC ex parte Pearson [2000] 1 Cr.App.R 141: late mental abnormality evidence “contradicted by evidence available at the time”. It also implicitly engaged the Foy [2020] EWCA Crim 270 finality principle: appeal is not a second trial where a materially different defence is mounted without compelling foundations.

E. Sentencing: youth, armed group aggravation, and totality

On sentence the Court accepted:

• Schedule 21 starting points: for the adult appellant, 25 years was correct (weapon taken to scene and used); for youths detained at His Majesty’s Pleasure, the 17-year starting point applied where a weapon was taken to the scene.
• Armed group aggravation: the Court endorsed the judge’s approach that murder seriousness increases where the offender acts as part of an armed group because of “co-ordination and confederacy”.
• Totality for additional offences: the Court’s core intervention was that, given already very long life minimum terms (and for youths, the particular weight of age), the judge did not sufficiently moderate the “uplift” for concurrent serious offending; the overall minimum terms became disproportionate.

The result was targeted reductions to minimum terms (without disturbing concurrent determinate terms), reflecting a totality recalibration rather than a re-evaluation of culpability for the murder itself.

3.3 Impact

1) Joinder applications in “two-incident” knife cases

The decision supports prosecution arguments that earlier “weapons out / group confrontation” episodes can properly be joined with a later homicide where they show continuity of association, arming, and operational method—reducing the force of defence submissions that such counts are merely prejudicial “propensity” material.

2) Secondary liability and half-time submissions in multi-handed violence

The Court provides clear appellate-level guidance that in armed group confrontations, Galbraith applications will often fail where: (i) the defendant remains part of the violent episode; and (ii) the prosecution case is that roles were split but mutually enabling. The emphasis on “conditional intent” and “whole-event inference” is likely to be cited against future no-case submissions that rest solely on momentary physical separation.

3) Cunningham directions: issue-dependent, not automatic

Post-Cunningham practice has sometimes encouraged broad challenges to directions whenever self-defence is in play. This judgment signals restraint: unless there is evidential/case-theory support that a secondary party believed the principal’s severe stabbing was necessary/reasonable, the appellate court may treat the omission as non-material.

4) Fresh psychiatric evidence and diminished responsibility on appeal

The Court’s refusal is likely to be influential where: (i) contemporaneous psychiatric material and the defendant’s own account at trial indicate rational decision-making; and (ii) later diagnostic developments are offered retrospectively to reframe culpability. The decision underscores that diagnosis alone is insufficient; the appeal will turn on provable substantial impairment at the time and a convincing causal explanation for the killing.

4. Complex Concepts Simplified

• Joinder: trying multiple charges together. Allowed where offences are linked (a “series”) and fairness is not undermined.
• Submission of no case to answer (Galbraith): at the close of the prosecution case, the judge stops the case only if the evidence (taken at its highest) could not allow a properly directed jury to convict.
• Secondary liability after Jogee: guilt depends on intentional assistance or encouragement of the principal offence; “foresight” alone is not enough. The intent may be conditional (e.g., “if necessary we will use serious violence”).
• Self-defence (and defence of another): force must be necessary and reasonable as the defendant honestly believed the circumstances to be. In secondary liability, what the secondary party believed can matter if that is how the case is put.
• Diminished responsibility (Homicide Act 1957, s.2): a partial defence reducing murder to manslaughter if a recognised medical condition caused an abnormality of mental functioning that substantially impaired specified abilities and explains the killing. The defendant must prove it on the balance of probabilities.
• Fresh evidence on appeal (Criminal Appeal Act 1968, s.23): the Court may admit new evidence if it is credible, admissible, reasonably not adduced at trial, and (critically) could provide a ground to allow the appeal—bearing in mind finality.
• Detention at His Majesty’s Pleasure: the mandatory life-type sentence for murder committed under 18; the court sets a “minimum term” before the Parole Board may consider release.
• Totality: sentencing principle ensuring the overall sentence is proportionate to the total criminality, avoiding excessive cumulative punishment where multiple offences are sentenced together.

5. Conclusion

Odunewu & Ors v R [2026] EWCA Crim 444 reinforces three practical propositions in modern serious violence litigation: (1) joinder is readily justified where the same armed group commits closely timed, closely located, methodologically similar confrontations; (2) in armed multi-handed violence, secondary liability will commonly be a jury question and half-time “no case” arguments based on momentary separation will often fail where group participation and conditional intent can be inferred; and (3) late-stage psychiatric reframing via section 23 will be rejected where contemporaneous evidence and the defendant’s own rational narrative undermine any realistic prospect of proving substantial impairment for diminished responsibility.

On sentence, the Court’s intervention was not about minimising culpability but about proportionate totality—particularly where very long minimum terms are imposed on young offenders and additional serious offending risks pushing overall punishment beyond what is just.