Shirley Banfield and Lynette Banfield: Conviction for Murder 'Joint Enterprise' Quashed
A jury would have been unable to properly decide between 5 logical outcomes, not all of which supported the guilt of any or all parties. Accordingly the Judge should have upheld the submission of no case to answer.
Shirley Banfield, 65, and daughter Lynette, 41, were given life sentences in 2012 for the murder of Don Banfield.
Regina v Shirley Banfield and Lynette Banfield
This was an alleged joint enterprise murder with no body, no suggested mechanism of death, no identified day when the murder was said to have occurred, no time and no place and no suggestion of what happened to the body.
The appeal turns on whether there were evidence at the close of the case for the Crown from which the jury could infer that the two defendants must have killed together and not one in the absence of the other.
It is true that the test for the Judge hearing a submission was whether a jury could infer joint responsibility, not whether it were obliged so to do. The test for the jury was whether the Crown had made it sure of joint responsibility. The Crown's difficulty is readily apparent. If at the close of its case the evidence were consistent both with inculpation and exculpation of either defendant then it had not established a prima facie case of murder, against either.
If circumstantial evidence, upon which much of this case was built, were to allow of but one interpretation, then a jury would be driven to a finding of guilt. That was not the position here.
The Crown relied on animus [intense dislike; hatred; animosity]. It contended it had proved the intention to cause grievous bodily harm, and that each Appellant had both opportunity and motive. Mr Aylett accepted it was unusual that the Crown had pleaded so narrow a range of dates.
The Crown also argued that one Appellant woman alone would have found it difficult to kill DB. We were unpersuaded. The courts regularly see proved allegations of homicide against a woman acting alone. A moment's reflection demonstrates the fallacy in the Crown's argument - for example a knife used whilst the victim is unwary or asleep. Disposal of the body is more readily argued as difficult for one woman alone but post mortem activities are not capable without more of proving guilt of murder. If it were otherwise, every relative assisting in the disposal or delayed finding of a body would be guilty of murder. The Crown is entitled to suggest such activities give rise to suspicion but suspicion without more does not equate to proof.
Given its decision to indict murder but not conspiracy to murder (which latter would at the very least significantly have modified the submissions open to the Appellants, as Mr Clegg readily conceded) the Crown's consequential difficulty was its inability to prove that the two women acted in concert to bring about DB's death. It could, many would accept, prove that they had a motive so to do, and that each, singly and with the other, had in his life done enough to suggest animus. It could fortify that in reliance upon the post mortem dishonesty of both, jointly. What it could not do was prove a joint enterprise to be present when he was murdered either as killer or as participant in a joint enterprise.
As the authors of Smith and Hogan's Criminal Law, 13th Ed, para 22.214.171.124 remark, if all that can be proved is that the principal offence was committed either by the first or the second accused, each must be acquitted: Richardson (91785) 1 Leach 387; R v Abbott  2 QB 497. We have reminded ourselves of the example given by Finnemore J and referred to in the judgment of Croom-Johnson LJ in Lane: If two sisters were provably in the room when X was murdered, and either both together or one alone were responsible, there is no prima facie case against either since the Crown would be unable to exclude either. We have reminded ourselves too that in that case there had been no suggestion that two had acted in concert, rather that one or the other was responsible. Nevertheless, the logic of the approach is not weaker as a consequence.
In our judgment the words of Farquharson LJ in Strudwick resonate as powerfully in this case as then they did: It was proved that [the Appellants] had told lies, but these did not lead to the inference of [a single] Appellant's presence, let alone participation. These Appellants by their pleas and in evidence admitted lies, but the subject-matter even allied to motive came nowhere near proving their presence at the killing of DB.
We were grateful for the sharp focus on reality of Mr Clegg QC who accepted that the likelihood is that one or other appellant murdered DB. This case however demands the application of established law to fact even if the outcome appears troubling. As the LCJ said in Abbott:
"Although it is unfortunate that a guilty party cannot be brought to justice, it is far more important that there should not be a miscarriage of justice and that the law should be maintained rather than that there should be a failure in some particular case."
The five postulations as to what might have explained the death, lucidly set out by Mr Clegg QC, are an useful guide to the problem the Crown's choice of a count of murder not of conspiracy to murder created.
i) SB killed him and LB encouraged her.
ii) LB killed him and SB encouraged her.
iii) SB killed him absent LB.
iv) LB killed him absent SB.
v) The applicants acted in concert.
The first four show how obvious were the tenable alternatives which could have led to DB's death. Once the Crown was unable to identify of which of the four options the jury could be sure, the fifth could not on the evidence provide a backstop.
The submission of no case to answer should have been allowed. These appeals will be allowed and both convictions will when we complete this judgment be quashed.
Source <> Crimeline, 02/08/13