Judgment -Regina v. Powell and Another
Regina v. English

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    In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder where, in an action unforeseen by the secondary party, another party to the criminal enterprise kills the victim by cutting his throat with a knife. The issue (which is one of fact after the tribunal of fact has directed itself, or has been directed, in accordance with the statement of Lord Parker in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, 120B) whether a secondary party who foresees the use of a gun to kneecap, and death is then caused by the deliberate firing of the gun into the head or body of the victim, is guilty of murder is more debatable although, with respect, I agree with the decision of Carswell J. on the facts of that case.

    Accordingly, in the appeal of English, I consider that the direction of the learned trial judge was defective (although this does not constitute a criticism of the judge, who charged the jury in conformity with the principle stated in Hyde) because in accordance with the principle stated by Lord Parker in Reg. v. Anderson, at p. 120B, he did not qualify his direction on foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle's part which English did not foresee as a possibility, then English should not be convicted of murder. As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Appeal held in Reg. v. Anderson, that English should not be found guilty of manslaughter.

    On the evidence the jury could have found that English did not know that Weddle had a knife. Therefore the judge's direction made the conviction of English unsafe and in my opinion his appeal should be allowed and the conviction for murder quashed.

    English was guilty of a very serious attack on Sergeant Forth, striking him a number of violent blows with a wooden post at the same time as Weddle attacked him with a wooden post. Therefore English was fully deserving of punishment for that attack, but it is unnecessary for your Lordships to give any further consideration to this point as English has already served a number of years in detention pursuant to the sentence of the trial judge.

    I have already stated that the issue raised by the second certified question in the appeal of English is to be resolved by the application of the principle stated by Lord Parker in Reg. v. Anderson, at p. 120B. Having so stated and having regard to the differing circumstances in which the issue may arise I think it undesirable to seek to formulate a more precise answer to the question in case such an answer might appear to prescribe too rigid a formula for use by trial judges. However I would wish to make this observation: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa.

    In conclusion I would wish to refer to a number of other points which arise from the submissions in these appeals. The first issue is what is the degree of foresight required to impose liability under the principle stated in Chan Wing-Siu [1985] A.C. 168. On this issue I am in respectful agreement with the judgment of the Privy Council in that case that the secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.

    Secondly, as the Privy Council also stated in Chan Wing-Siu, in directing the jury the trial judge need not adopt a set of fixed formulae, and the form of the words used should be that best suited to the facts of the individual case. In this judgment I have cited two passages from the judgment of Lord Parker in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110. One passage commences at p. 118F, the second passage commences at p. 120B. Trial judges have frequently based their directions to the jury in respect of the liability of a secondary party for an action carried out in a joint venture on the first passage. There is clearly no error in doing so. However in many cases there would be no difference in result between applying the test stated in that passage and the test of foresight, and if there would be a difference the test of foresight is the proper one to apply. I consider that the test of foresight is a simpler and more practicable test for a jury to apply than the test of whether the act causing the death goes beyond what had been tacitly agreed as part of the joint enterprise. Therefore, in cases where an issue arises as to whether an action was within the scope of the joint venture, I would suggest that it might be preferable for a trial judge in charging a jury to base his direction on the test of foresight rather than on the test set out in the first passage in Reg. v. Anderson; Reg v. Morris. But in a case where, although the secondary party may have foreseen grievous bodily harm, he may not have foreseen the use of the weapon employed by the primary party or the manner in which the primary party acted, the trial judge should qualify the test of foresight stated in Reg. v. Hyde [1991] 1 Q.B. 134in the manner stated by Lord Parker in the second passage in Anderson v. Morris.

    As I have already observed in referring to the decision in Reg. v. Gamble [1989] N.I. 268, in applying the second passage in Reg. v. Anderson there will be cases giving rise to a fine distinction as to whether or not the unforeseen use of a particular weapon or the manner in which a particular weapon is used will take a killing outside the scope of the joint venture, but this issue will be one of fact for the common sense of the jury to decide.


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Prepared 30 October 1997