Contextual Digital Communications Can Amount to a Case to Answer for Secondary Liability in a Planned Murder (R v Hibbert)

Case: Hibbert, R. v
Citation: [2025] EWCA Crim 1730
Court: England and Wales Court of Appeal (Criminal Division)
Date: 16 December 2025

1. Introduction

This appeal concerned a familiar but fact-sensitive question: when does circumstantial evidence—here, patterns of calls and coded text messages—cross the threshold from mere knowledge of a criminal plan to a case to answer for participation in it as a secondary party to murder?

The appellant had pleaded guilty to drugs supply offences but was convicted of murder on the second indictment. It was common ground that he was not present at the killing. The prosecution’s case was that he had intentionally assisted or encouraged the murder by participating in the planning (even if he did not attend the scene).

The sole ground of appeal challenged the trial judge’s refusal of a submission of no case to answer at the close of the prosecution case. The appellant argued that the evidence proved, at most, knowledge of a plan and its motive, and that the prosecution impermissibly conflated knowledge with encouragement/assistance.

2. Summary of the Judgment

The Court of Appeal (Holgate LJ) dismissed the appeal. It held that the trial judge was entitled to leave the case to the jury because a reasonable jury, properly directed and taking the prosecution case at its highest, could infer from the overall pattern and content of communications that:

• the appellant knew of the plan to kill the deceased, and
• the appellant participated in making that plan with the relevant mens rea, which amounted (at least) to encouragement.

The court emphasised that omissions to prevent or discourage the killing could not found liability, and post-event “condoning” communications could not create liability; the key was whether the evidence permitted a jury inference of prior participation in planning amounting to intentional encouragement/assistance.

3. Analysis

3.1 Precedents Cited

R v Galbraith [1981] 1 WLR 1039

The court treated R v Galbraith as the governing test. It reiterated the two-limb approach:

• Limb 1: if there is no evidence the defendant committed the offence, the judge must stop the case.
• Limb 2: if there is some evidence but it is tenuous, the judge must stop the case only if, taken at its highest, a properly directed jury could not properly convict on it.

In Hibbert, the appeal turned on limb 2: whether the communications evidence was too vague/speculative to permit a conviction, or whether it could support a permissible inference of participatory encouragement in a murder plan.

R v Jabber [2006] EWCA Crim 2694

The court relied on Moses LJ’s explanation that adverse inference reasoning requires rejection of “all realistic possibilities consistent with innocence,” but that the operative question for a no-case submission is whether a reasonable jury (not all reasonable juries) could draw the necessary adverse inferences on one possible view of the evidence.

That framing directly answered the appellant’s “speculation” argument: the issue was not whether innocence explanations existed, but whether a reasonable jury could reject them as unrealistic given the contextual pattern of communications.

R v GF [2012] EWCA Crim 1756

R v GF was cited for the proposition that the focus at no-case stage is on what a reasonable jury could do, recognising that fact assessment is not a purely logical exercise and that reasonable juries may differ about weight.

This supported the court’s approach of treating the meaning and significance of message sequencing, coded language, and patterns of contact as matters within the jury’s evaluative province, provided the inference of guilt was reasonably open.

R v F(S) [2011] EWCA Crim 1844; [2012] QB 703

The court invoked Lord Judge LCJ’s warning against judges usurping the jury’s fact-finding role. It stressed that at the no-case stage the judge should not ask whether it is “safe” to leave a case; safety is for appeal after conviction, not for the Galbraith threshold assessment.

This was particularly important in a circumstantial case where the defence criticised the strength of inferences: the Court of Appeal reinforced that “strength” questions typically belong to the jury if there is evidence on which they could properly convict.

R v Chauhan & Croft [2019] EWCA Crim 1111; (2019) 2 Cr App R 27

Cited to confirm that, on appeal against refusal of a no-case submission, the appellate court usually focuses on whether there was a case to answer, rather than conducting an over-close critique of the trial judge’s reasoning.

In Hibbert, this underpinned a restrained appellate posture: the court reviewed the sequence-of-events evidence itself and concluded the threshold was met, noting there was no allegation that the trial judge misdirected himself in law.

3.2 Legal Reasoning

The central legal issue was the boundary between:

• knowledge of a planned killing (insufficient by itself for secondary liability), and
• intentional encouragement/assistance (which may be proved by participating in planning).

The Court of Appeal accepted and reiterated three critical constraints—important in secondary liability cases:

• Mere omission to prevent or discourage the crime cannot found liability.
• Post-event association/condoning cannot create liability for the prior murder.
• The prosecution must prove an intentional act of assistance/encouragement (here, alleged through participation in the plan) with intent that the victim be killed.

The court then asked the Galbraith question: could a reasonable jury infer participatory encouragement from the evidence? It held yes, relying on the cumulative, contextual significance of:

• Sequenced contacts immediately after Towell’s return to the UK (calls to Hill and then the appellant; early-hours visit to the appellant) in the context of a shared risk of police exposure.
• Coded language indicating a planned killing (“holiday”) and stabbing (“splash him”), communicated to the appellant in a way that presupposed shared understanding.
• “Plan made yesterday” text and repeated urgency (“time’s ticking for this ting”), sent to the appellant not merely as Hill’s friend but as someone Towell treated as already inside the plan.
• Patterns around 20 June (multiple lengthy calls; message sequencing between the group; the “Signal encrypted” reference) from which the jury could infer planning communications.
• Appellant’s later conduct that evening (airplane mode, going to Hill’s, photographing cash/drugs/knife) as part of the contextual matrix supporting an inference of involvement rather than passive awareness.
• Appellant’s attempt to contact Towell after waking and seeing frantic messages, which the jury could read as concern about execution of the plan (consistent with participation) rather than mere curiosity or belated alarm.

3.3 Impact

Although the decision applies established principles rather than creating a wholly new test, it is significant in practice for cases involving digital communications and alleged secondary liability:

• Threshold reinforcement: coded messages and communication patterns can be sufficient to cross the Galbraith threshold even without direct evidence of an explicit “agreement” or a physical act at the scene.
• Context matters: the admissible meaning of messages may be inferred from timing, sequencing, shared criminal jeopardy, and repeated references that presuppose common understanding.
• Jury primacy in decoding: where inferences depend on interpretation of language (“holiday”, “splash”) and interaction patterns, those are classic jury questions, provided the inference is not purely speculative.
• Clear boundary preserved: the court’s express acceptance that omission and post-event condoning cannot found liability guards against overextension of secondary liability—future prosecutions still must identify evidence capable of supporting intentional encouragement/assistance before the offence.

4. Complex Concepts Simplified

• No case to answer: a mid-trial submission that the prosecution evidence is insufficient in law to allow the jury to convict. If upheld, the case is stopped without the defence having to answer.
• Galbraith limb 1 vs limb 2: limb 1 is “no evidence at all”; limb 2 is “some evidence but arguably weak/tenuous”—in limb 2, the case only stops if no reasonable jury could convict on the evidence taken at its highest.
• Secondary liability: criminal responsibility for assisting or encouraging another to commit the offence. It is not enough to know about the offence; there must be intentional assistance/encouragement with the requisite intent.
• Mens rea: the mental element—here, intent that the victim be killed (or the necessary intent that corresponds to the prosecution’s secondary liability case).
• Inference vs speculation: an inference is a conclusion the jury may reasonably draw from proven facts; speculation is a guess without sufficient factual foundation. Hibbert holds that the communications evidence provided a sufficient foundation for inference.
• “All realistic possibilities consistent with innocence”: at trial, juries must not convict if a realistic innocent explanation remains; but at the no-case stage the question is whether a reasonable jury could reject innocent explanations as unrealistic on one possible view of the evidence.

5. Conclusion

R v Hibbert is a clear application of orthodox Galbraith principles to a modern evidential landscape dominated by phones, encrypted apps, coded language, and interaction patterns. The Court of Appeal held that, where messages and sequencing plausibly presuppose shared knowledge and involvement in a murder plan, a reasonable jury may infer participatory encouragement sufficient to establish a case to answer for secondary liability—even in the absence of the defendant at the scene and without direct evidence of an express instruction or agreement.

The decision’s broader significance lies in its insistence on (i) the jury’s constitutional primacy in drawing inferences from circumstantial communications evidence, and (ii) maintaining principled limits: knowledge, omissions, and post-event association are not enough unless the evidence can support an inference of intentional encouragement/assistance before the offence.