I consider that the judge's summing up contained a misdirection to the extent that it could be read to suggest that participants in a joint venture which led to a killing would all be guilty of murder even if none of them possessed the intent to kill or do serious bodily harm. But I further consider, with respect, that the judgment of the Court of Appeal was erroneous to the extent that it suggests that if A kills with the requisite intent to kill or cause serious bodily harm, B a participant in the joint venture cannot be guilty of murder unless he also intends death or serious bodily harm to the victim.

Therefore the decision in Reg. v. Barr should not be followed in so far as it relates to the liability of a secondary party who is a participant in a joint enterprise.

    In Reg. v. Smith [1988] Crim.L.R. 616 it appears that Reg. v. Ward 85 Cr.App.R. 71 was not cited to the Court of Appeal and its decision in that case, that specific intent to cause grievous bodily harm must be proved against a secondary party to convict him of that offence where the grievous bodily harm has been caused by another party to the joint enterprise to attack the victim, is also erroneous and should not be followed. 

    Before setting out the terms in which the Court of Appeal rejected the argument on behalf of the appellants Powell and Daniels based on Reg. v. Moloney [1985] A.C. 905 and Reg. v. Hancock [1986] A.C. 455 I would first refer to the rejection of another argument advanced on behalf of the appellants in reliance on the judgments of Woolf J. at first instance and Lord Scarman in this House in Gillick v. West Norfolk and Wisbech Area Health Authority [1984] Q.B. 581; [1986] A.C. 112, 190E to the effect that whether or not a doctor who gives contraceptive advice or treatment to a girl under the age of 16 years could be guilty of aiding and abetting the commission of unlawful sexual intercourse would depend on his intention. The Court of Appeal rejected this argument in this case on the grounds that Gillick was a case where there was a civil claim for a declaration and the situations considered were remote from a common enterprise culminating in murder. My Lords, I agree, and I consider that a doctor exercising bona fide his clinical judgment cannot be regarded as engaging in a joint criminal enterprise with the girl.

    Returning to the rejection in the Court of Appeal of the appellants' argument in reliance on Reg. v. Moloney and Reg. v. Hancock, Lord Taylor of Gosforth C.J. stated, at p. 22A:

 "we feel bound to follow and apply the Hyde formulation having regard to the approval which it has received in a number of decisions in this court and to the fact that it is in accordance with the House of Lords' decision in Maxwell. If the result is an unacceptable anomaly, it must now be for the House of Lords or the legislature to say so."

    My Lords, I recognise that as a matter of logic there is force in the argument advanced on behalf of the appellants, and that on one view it is anomalous that if foreseeability of death or really serious harm is not sufficient to constitute mens rea for murder in the party who actually carries out the killing, it is sufficient to constitute mens rea in a secondary party. But the rules of the common law are not based solely on logic but relate to practical concerns and, in relation to crimes committed in the course of joint enterprises, to the need to give effective protection to the public against criminals operating in gangs. As Lord Salmon stated in Reg. v. Majewski [1977] A.C. 443,482E, in rejecting criticism based on strict logic of a rule of the common law, "this is the view that has been adopted by the common law of England, which is founded on common sense and experience rather than strict logic."

    In my opinion there are practical considerations of weight and importance related to considerations of public policy which justify the principle stated in Chan Wing-Siu and which prevail over considerations of strict logic. One consideration is that referred to by Lord Lane C.J. in Reg. v. Hyde [1991] 1 Q.B. 134, 139C, where he cited with approval the observation of Professor Smith in his comment on Reg. v. Wakeley:

 "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder."

A further consideration is that, unlike the principal party who carries out the killing with a deadly weapon, the secondary party will not be placed in the situation in which he suddenly has to decide whether to shoot or stab the third person with intent to kill or cause really serious harm. There is, in my opinion, an argument of considerable force that the secondary party who takes part in a criminal enterprise (for example, the robbery of a bank) with foresight that a deadly weapon may be used, should not escape liability for murder because he, unlike the principal party, is not suddenly confronted by the security officer so that he has to decide whether to use the gun or knife or have the enterprise thwarted and face arrest. This point has been referred to in cases where the question has been discussed whether in order for criminal liability to attach the secondary party must foresee an act as more likely than not or whether it suffices if the secondary party foresees the act only as a possibility.

    In Chan Wing-Sui v. The Queen [1985] A.C. 168 counsel for the Crown submitted, at p. 172:

  "Regard must be had to public policy considerations. Public policy requires that when a man lends himself to a criminal enterprise knowing it involves the possession of potentially murderous weapons which in fact are used by his partners with murderous intent, he should not escape the consequences to him of their conduct by reliance upon the nuances of prior assessment of the likelihood that such conduct will take place. In these circumstances an accomplice who knowingly takes the risk that such conduct might, or might well, take place in the course of that joint enterprise should bear the same responsibility for that conduct as those who use the weapons with the murderous intent."

Sir Robin Cooke stated, at p. 177D:

 "What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic."

    A somewhat similar viewpoint was stated by Professor Glanville Williams in Criminal Law, The General Part, 2nd ed. p. 397 (cited by Stephen J. in his judgment in the High Court of Australia in Johns v. The Queen (1980) 143 C.L.R. 108, 119): "It seems that a common intent to threaten violence is equivalent to a common intent to use violence, for the one so easily leads to the other."

    In McAuliffe v. The Queen (1995) 69 A.L.J.R. 621 the High Court of Australia referred to the decision in Johns and stated, at p. 626:

 "There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it."

    Therefore for the reasons which I have given I would answer the certified question of law in the appeals of Powell and Daniels and the first certified question in the appeal of English by stating that (subject to the observations which I make in relation to the second certified question in the case of English) it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm. Accordingly I would dismiss the appeals of Powell and Daniels.

    The second certified question in the appeal of English arises because of the last sentence in the following passage in the trial judge's summing up to the jury to which I have previously referred:

 "If he had the knife and English knew that Weddle had the knife, what would have been--must have been--in the mind of English, bearing in mind whatever condition you find that he was in as a result of drink? So you have to ask that question. If he did not know of the knife then you have to consider whether nevertheless he knew that there was a substantial risk that Weddle might cause some really serious injury with the wooden post which was used in the manner which you find it to have been used."

In Reg. v. Hyde [1991] 1 Q.B. 134, as already set out, Lord Lane stated, at p. 139C:

 "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture."

     However in Hyde the attack on the victim took place without weapons and the Crown case was that the fatal blow to the victim's head was a heavy kick. The problem raised by the second certified question is that, if a jury is directed in the terms stated in Hyde, without any qualification (as was the jury in English), there will be liability for murder on the part of the secondary party if he foresees the possibility that the other party in the criminal venture will cause really serious harm by kicking or striking a blow with a wooden post, but the other party suddenly produces a knife or a gun, which the secondary party did not know he was carrying, and kills the victim with it.

    Mr. Sallon, for the appellant, advanced to your Lordships' House the submission (which does not appear to have been advanced in the Court of Appeal) that in a case such as the present one where the primary party kills with a deadly weapon, which the secondary party did not know that he had and therefore did not foresee his use of it, the secondary party should not be guilty of murder. He submitted that to be guilty under the principle stated in Chan Wing-Siu the secondary party must foresee an act of the type which the principal party committed, and that in the present case the use of a knife was fundamentally different to the use of a wooden post.

    My Lords, I consider that this submission is correct. It finds strong support in the passage of the judgment of Lord Parker in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, 120B which I have set out earlier, but which it is convenient to set out again in this portion of the judgment:

 "It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today."

    The judgment in Chan Wing-Siu's case [1985] A.C. 168 also supports the argument advanced on behalf of the appellant because Sir Robin Cooke stated, at p. 175F:

 "The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend." (emphasis added).

    There is also strong support for the appellant's submission in the decision of Carswell J. (as he then was), sitting without a jury in the Crown Court in Northern Ireland, in Reg. v. Gamble [1989] N.I. 268. In that case the four accused were all members of a terrorist organisation, the Ulster Volunteer Force, who had a grievance against a man named Patton. The four accused entered upon a joint venture to inflict punishment upon him, two of them, Douglas and McKee, contemplating that Patton would be subjected to a severe beating or to "kneecapping" (firing a bullet into his kneecap). In the course of the attack upon him Patton was brutally murdered by the other two accused. His throat was cut with a knife with great force which rapidly caused his death. In addition he was shot with four bullets, and two of the bullet wounds would have been fatal had his death not been caused by the cutting of his throat. Douglas and McKee had not foreseen killing with a knife or firing of bullets into a vital part of the body. It was argued, however, on behalf of the prosecution that the joint enterprise of committing grievous bodily harm, combined with the rule that an intent to cause such harm grounded a conviction for murder in respect of a resulting death, was sufficient to make the two accused liable for murder notwithstanding that they had not foreseen the actions which actually caused death. After citing the relevant authorities Carswell J. rejected this argument and stated, at p. 283F:

 "When an assailant 'kneecaps' his victim, i.e. discharges a weapon into one of his limbs, most commonly into the knee joint, there must always be the risk that it will go wrong and that an artery may be severed or the limb may be so damaged that gangrene sets in, both potentially fatal complications. It has to be said, however, that such cases must be very rare among victims of what is an abhorrent and disturbingly frequent crime. Persons who take a part in inflicting injuries of this nature no doubt do not generally expect that they will endanger life, and I should be willing to believe that in most cases they believe that they are engaged in a lesser offence than murder.

 "The infliction of grievous bodily harm came within the contemplation of Douglas and McKee, and they might therefore be regarded as having placed themselves within the ambit of life-threatening conduct. It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder on the ground that it was outside the common design.
 "To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards a greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Sui. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting."