R v Hawthorn & Anor [2026] EWCA Crim 1058: When Specific Joint-Enterprise Directions Make “Departure” Directions Unnecessary, and Call-Pattern Evidence Can Properly Go to the Jury

1. Introduction

The Court of Appeal (Criminal Division) determined renewed applications for permission to appeal against conviction and sentence by two applicants convicted after a jury trial. One applicant (“W.”) was convicted of murder and multiple related serious offences arising from four ammonia attacks in August 2023; the other (“H.”) was convicted of murder and robbery limited to the final attack, in which the victim died after ammonia was thrown into his face inside his home.

The appeals raised: (i) the admissibility of hearsay evidence under the Criminal Justice Act 2003 relating to an earlier assault count; (ii) whether the trial judge should have directed the jury on “departure” from an agreed plan (scope of authority); (iii) whether there was a case to answer against H. given an inference-based prosecution built primarily on call/text evidence; and (iv) whether minimum terms were wrong in principle or manifestly excessive.

2. Summary of the Judgment

The Court refused all renewed applications:

• W. (conviction): (a) hearsay evidence was properly admitted under CJA 2003 s.116; (b) no “departure direction” was required because the trial judge gave clear, tailored directions requiring the jury to be sure W. intentionally instructed/assisted/encouraged the ammonia assault and, for murder, intended death or really serious injury.
• W. (sentence): the 33-year minimum term was not arguably excessive; findings about the drug context were open to the trial judge and did not materially alter the correctness of the term; extension of time (111 days) was refused.
• H. (conviction): the “no case to answer” ruling was correct; the call/text pattern before and after the fatal attack was capable of supporting culpable inferences and was not merely consistent with ordinary drug dealing.
• H. (sentence): the 22-year minimum term was not arguably wrong or excessive; the judge’s factual findings were justified and the 30-year robbery-murder starting point (with substantial reduction) was open on these facts.

3. Analysis

3.1 Precedents cited and their role

• R v Ibrahim [2012] EWCA Crim 837
  Used by the trial judge as a fallback analytical framework when considering whether hearsay was “sole or decisive” and whether there was “proper justification” for admitting untested hearsay. The Court of Appeal endorsed the judge’s approach: even if the evidence had been sole/decisive (which the judge doubted), it was supported by justification, reliability indicia and safeguards.
• R v Riat [2012] EWCA Crim 150; 2013 Cr App R 2 and R v BOB [2024] EWCA Crim 1494; [2025] 1 WLR 101
  Cited for the modern structure to hearsay admissibility: not only gateway satisfaction (e.g., s.116), but also the need for counterbalancing safeguards to ensure fairness. The Court accepted the trial judge’s reliance on safeguards (cross-examination of the ABE interviewee, ability to adduce unreliability evidence about the declarant, and correct jury directions on hearsay).
• R v G and F [2012] EWCA Crim 1756 (summarising Galbraith)
  Central to H.’s “no case to answer” argument. The Court stressed the correct emphasis: the question is whether a reasonable jury could draw adverse inferences (taking the prosecution case at its highest), not whether all juries would do so.
• R v Masih [2015] EWCA Crim 477
  Refined the inference-based “no case” inquiry to: whether a reasonable jury could exclude all realistic possibilities consistent with innocence. The Court applied this to the call/text chronology and found it was plainly capable of excluding innocent explanations.
• Fearon [2021] EWCA Crim 1706
  Relied on by H. to argue for a 15-year starting point as a secondary party. The Court distinguished it as fact-specific: in Fearon the robbery arose spur-of-the-moment after injury, whereas here the killing occurred in the course/furtherance of robbery (“murder for gain”), engaging the 30-year framework.

3.2 Legal reasoning

A. Hearsay admission (CJA 2003 s.116) and the importance of the Defence Statement

W. challenged hearsay evidence from (i) a witness present shortly after an earlier assault and (ii) an ABE interview of the deceased’s partner describing what she had been told, said to be unreliable because the deceased was involved in drug dealing and could not be tested in cross-examination.

The Court upheld admission because:

• Statutory gateway: the declarant was deceased, clearly identified as the source, and the evidence would have been admissible if he had lived.
• Corroboration and reliability markers: two accounts supporting each other, plus contemporaneous photographs consistent with injury and scene.
• Counterbalancing safeguards: the ABE interviewee could be cross-examined; unreliability evidence could be adduced; the jury was directed on how to approach hearsay.
• Critical practical point: W.’s own Defence Statement substantially accepted the event and its drug-money context; the live dispute (self-defence) was not advanced by W. giving evidence, and the hearsay witnesses could not speak to self-defence anyway.

The Court treated this alignment as a powerful reason why the alleged unfairness and “decisiveness” complaints lacked force: where underlying facts are effectively admitted, the hearsay risk the rule is designed to manage is materially reduced.

B. “Departure direction” and scope of authority in joint enterprise

W. argued that even if he authorised a “drug taxing”, he should not be liable if the principals selected different victims or otherwise went outside the plan—seeking a “departure direction”.

The Court’s answer was functional: the judge did not need an abstract “departure” instruction because he directed the jury to decide the specific allegation: whether W. intentionally instructed/assisted/encouraged the squirting of ammonia, and (for murder) whether he intended death or really serious injury.

On that approach, the “scope of authority” question was not left vague; it was framed by the act and mental element required for guilt. The Court regarded any additional “departure” direction as potentially “long and convoluted” without adding legal clarity, because the jury could not convict unless sure W. intentionally participated in the very conduct that occurred.

C. Alternative verdicts (manslaughter/lesser assaults)

W. also criticised the absence of directions allowing alternative verdicts. The Court rejected this as “all or nothing” on the evidence: there was no evidential basis for a middle position between intentional participation in the ammonia attack with the requisite intent (murder) and no guilt. This reflects an appellate tendency to tie alternative verdict directions to evidential foundation rather than theoretical possibility.

D. No case to answer against H.: call/text patterns as circumstantial proof

H.’s application essentially replayed the no-case submission: that communications with a co-defendant were as consistent with routine drug dealing as with involvement in the fatal attack.

Applying Galbraith as explained in R v G and F and refined by R v Masih, the Court emphasised:

• the prosecution case must be taken at its highest;
• the judge’s task is whether a reasonable jury could draw the adverse inference and exclude realistic innocent possibilities;
• communications must be assessed cumulatively rather than call-by-call.

The Court accepted the trial judge’s reasoning that the timing, frequency, tone and urgency—especially immediately after the attack—were capable of supporting the inference that H. was a point of coordination and then crisis-management, rather than a supplier in an ordinary low-level drug transaction. The absence of drug-transaction content in the messages, and the lack of evidence that the caller was a drug user, further reduced the plausibility of the innocent explanation.

E. Sentencing: Schedule 21 starting points, fact-finding, and secondary parties

For W., the Court endorsed a 30-year starting point (murder in the course/furtherance of robbery) and held that the additional attacks and serious injuries justified an uplift to a 33-year minimum term. It also reinforced a key appellate restraint principle: trial judges who preside over the evidence are “uniquely placed” to make factual findings for sentence, and such findings will not be disturbed absent lack of any evidential foundation.

For H., the Court rejected two lines of challenge:

• Findings of fact: it was open to the judge to find a drugs/“taxing” context and to characterise post-attack conduct as seeking assistance when the plan went wrong, based on the communications evidence and the immediacy of the victim’s respiratory distress.
• Starting point (15 vs 30 years): while secondary-party cases are fact-sensitive, this was “murder for gain” linked to robbery, justifying a 30-year starting point with a substantial reduction for role and exceptional mitigation. The judge’s reduction to 22 years (well below co-defendants) demonstrated a non-mechanistic application.

The Court also noted an alternative analytical route: if the 25-year “weapon taken to the scene” starting point were used, the 22-year minimum term could be viewed as generous given the jury’s finding of intentional participation in an ammonia assault.

3.3 Impact

Hearsay challenges in practice

This decision underscores that hearsay appeals are particularly difficult where: (i) the statutory gateway is clear (death); (ii) there is independent supporting material (photos; mutual support between accounts); (iii) safeguards are demonstrably available and used; and (iv) the defence’s own formal case narrative substantially aligns with the hearsay. The Court’s reasoning suggests that a Defence Statement can operate as a practical “anchor” diminishing the claimed prejudice of hearsay, even where the declarant’s credibility is attacked in the abstract.

Directions on secondary liability: preference for specificity over abstraction

The judgment signals a pragmatic appellate preference: if the jury is directed to decide whether the defendant intentionally assisted/encouraged the precise criminal act that occurred (and with the required intent), then adding a “departure from plan” direction may be unnecessary. This may influence how trial judges respond to defence requests for additional complexity in routes to verdict in joint enterprise cases.

Inference-heavy prosecutions and “no case” submissions

The Court’s treatment of H.’s arguments is a reminder that plausibility contests about inferences are usually for the jury if the call/text chronology is sufficiently compelling. In modern cases, call pattern evidence—frequency, urgency, proximity to the offence, and content—can constitute the kind of circumstantial matrix that makes a no-case submission hard to sustain.

Minimum terms and secondary parties

The decision also illustrates that the Schedule 21 starting point may be applied to secondary parties where the jury’s verdict entails intentional participation in the robbery-murder mechanism, with reductions achieved through role assessment and mitigation rather than by automatically selecting a lower starting point.

4. Complex concepts simplified

• Hearsay (CJA 2003): evidence of what someone said outside court, relied on to prove the truth of what was said. Section 116 allows it when the witness cannot testify (e.g., death), but the court must still ensure fairness (reliability indicators and safeguards).
• “Sole or decisive” evidence: a shorthand risk marker—if the hearsay is the only or main basis for conviction, stronger justification and safeguards are expected.
• Joint enterprise / secondary liability: a person can be guilty if they intentionally assist or encourage the principal offender. The key is intentional participation, not mere association.
• “Departure direction”: an instruction that if the principal goes outside what was agreed/authorised, the alleged secondary party may not be liable. The Court held it was unnecessary where the jury must be sure the secondary party intentionally encouraged the precise act committed.
• No case to answer (Galbraith): at half-time, the judge asks whether a reasonable jury could convict on the prosecution evidence taken at its highest. In inference cases, the question becomes whether a reasonable jury could exclude realistic innocent explanations.
• Minimum term and Schedule 21 (Sentencing Act 2020): for life sentences in murder, the court sets a minimum term before parole eligibility. Schedule 21 provides starting points (e.g., 30 years for murder in the course/furtherance of robbery; 25 years where a weapon is brought), then adjusts for aggravating/mitigating factors and total criminality.

5. Conclusion

R v Hawthorn & Anor is a fact-driven but instructive CACD decision confirming: (1) corroborated hearsay under CJA 2003 s.116 will be upheld where fairness safeguards exist and the defence’s own case narrative materially overlaps the hearsay; (2) trial judges may legitimately prefer crisp, fact-specific joint enterprise directions over additional “departure” complexity where the route to guilt is already tightly defined by act and intent; (3) inferences from communications data—considered as a pattern—can properly take a case past “no case to answer”; and (4) Schedule 21 starting points in robbery-murder can apply to secondary parties, with role and mitigation addressed through calibrated reductions rather than automatic lower starting points.