Where jury directions introduce a basis of liability (extended joint criminal enterprise) that was not the Crown case and impose a lesser burden on the Crown, the misdirection goes to an element of liability in issue and precludes application of the proviso to s 6 of the Criminal Appeal Act 1912. Leave under Rule 4 should usually be granted where a necessary element of a fair trial according to law was overlooked, even where defence counsel failed to object at trial. The case also illustrates that where the Crown case depends on joint criminal enterprise, the agreement must be proved to include the requisite mental element for murder — an agreement merely to assault is insufficient.
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