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Judgments - R v Rahman and others (Appellants) (On Appeal from the Court of Appeal (Criminal Division))


SESSION 2007-08

[2008] UKHL 45

on appeal from: [2007]EWCA Crim 342




R v Rahman and others (Appellants) (On Appeal from the Court of Appeal (Criminal Division))

Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury



Michael Harrison QC

Yunus Valli

(Instructed by Sharpe Pritchard )


Robert Smith QC

Paul Greaney

(Instructed by Crown Prosecution Service)

Hearing date:

23 and 24 APRIL 2008






R v Rahman and others (Appellants) (On Appeal from the Court of Appeal (Criminal Division))

[2008] UKHL 45


My Lords,

1.  On 4 March 2005 the four appellants were convicted in the Crown Court at Leeds before Wakerley J and a jury of murdering Tyrone Clarke on 22 April 2004. The indictment contained a second count, of violent disorder, on which no verdict was returned. It was not alleged or proved that any of the appellants had personally struck the fatal blow or blows and they were convicted as accessories or secondary parties to the joint enterprise which culminated in the death of the deceased. The Criminal Division of the Court of Appeal (Hooper LJ, Gibbs and Roderick Evans JJ) dismissed their appeals against conviction on 23 February 2007, for reasons given by Hooper LJ: [2007] EWCA Crim 342, [2007] 1 WLR 2191. Their appeals to the House raise a narrow but significant question on the direction to be given to the jury concerning the liability of an accessory on facts such as arose in the present case.

The facts

2.  There was, it seems, a history of confrontation between the deceased and some of his friends on one side and a group of young Asians including two of the appellants on the other. In a chance encounter involving minor violence on 20 April 2004 some members of the latter group were worsted. There was talk of revenge, and on the afternoon of 22 April the deceased and some of his friends were sighted by the opposing group. A number of young Asians gathered. They were carrying a variety of weapons including baseball bats, a cricket bat, a scaffolding pole, a metal bar, a table leg and pieces of wood. Their numbers increased, and as they walked through the streets there were two groups, one of 10 to 12 with a group of about 5 to 7 shortly behind. The deceased and his friend armed themselves with pieces of wood taken from a fence and fighting broke out between the two groups. A further group of Asian men arrived and the deceased and his friend were pursued as they sought to escape through lanes and a ginnel (the Rock ginnel), until they reached a grassy area at the back of some houses in Brett Gardens, Beeston in Leeds. The deceased tried to enter the rear gate of one of the houses, but was caught there and attacked by a group of between 7 and 15 persons. After he collapsed to the ground some members of the group were seen to assault him with blunt instrument weapons and kicks. The attack lasted a short time, estimated at less than a minute. The police arrived quickly at the scene, and the group dispersed and ran off, save for two of the appellants who were arrested at the scene. There was some evidence that one member of the Asian group had been seen with a knife.

3.  On post mortem examination of the body of the deceased it was found that he had sustained three knife wounds. One of these, on the left side of the back between the shoulder blade and the midline, just to the right of the left shoulder blade, was made by a knife which entered the body relatively straight and penetrated to a depth of 8 centimetres, causing massive haemorrhage, rapid collapse, rapid unconsciousness and death. The evidence was that this wound required severe force and was the principal injury of the deceased, from which he stood no chance of survival. There was another knife wound in a similar position on the right side of the back, which penetrated to a depth of 9 centimetres. It also required severe force and was potentially a fatal wound. The third wound, to the left shoulder, penetrated soft tissue and did not penetrate the chest. The evidence was that the first two of these wounds were probably caused by the same knife in similar movements, and it was possible that one knife had been used to inflict all three wounds. The knife was estimated to have a blade of 8 to 9 centimetres and a maximum width of 1.5 centimetres at the hilt. Scientific evidence suggested that the deceased was still standing when stabbed. A number of recent soft tissue injuries were also found on the body of the deceased, but these were not significant and would not have required hospital treatment. Some of these injuries could have been caused by a blunt instrument such as a baseball bat or a piece of wood.

4.  There was no evidence that any of the appellants inflicted the fatal injuries. The participant who did was probably not apprehended. The prosecution alleged that the role of each appellant in the attack involved either the deliberate and intentional infliction of serious physical harm to the deceased or, by their conduct, the intentional encouragement of others to do likewise; that each appellant shared a common intention that serious bodily harm should be inflicted; and that the circumstances of the attack were such that each of them knew that weapons such as baseball bats, a scaffolding pole and a knife or knives might be used to inflict serious bodily harm.

5.  The evidence of each appellant was that he had joined the enterprise with at most an intention to cause serious harm, without knowledge or foresight that anyone else involved in the assault intended to kill, that he did not have a knife and did not know or foresee that anyone else had a knife and that, accordingly, the acts of the primary offender were outside the scope of any joint enterprise to inflict serious bodily harm. The first, second and fourth-named appellants denied participation in the fatal assault. The third-named appellant admitted being present, wearing a balaclava, with intent to join in the assault, but said that before striking any blow he had been stunned by a blow to his head caused by a brick thrown by the deceased’s friend.

6.  It is accepted that the jury must have found that each appellant participated in the attack either (i) by using violence to the victim, or (ii) by surrounding him to enable others to use such violence, or (iii) by being present intending that his presence should encourage others to attack the victim.

The criminal liability of accessories

7.  In the ordinary way a defendant is criminally liable for offences which he personally is shown to have committed. But, even leaving aside crimes such as riot, violent disorder or conspiracy where the involvement of multiple actors is an ingredient of the offence, it is notorious that many, perhaps most, crimes are not committed single-handed. Others may be involved, directly or indirectly, in the commission of a crime although they are not the primary offenders. Any coherent criminal law must develop a theory of accessory liability which will embrace those whose responsibility merits conviction and punishment even though they are not the primary offenders.

8.  English law has developed a small number of rules to address this problem, usually grouped under the general heading of “joint enterprise". These rules, as Lord Steyn pointed out in R v Powell (Anthony), R v English [1999] 1 AC 1, 12, are not applicable only to cases of murder but apply to most criminal offences. Their application does, however, give rise to special difficulties in cases of murder. This is because, as established in R v Cunningham [1982] AC 566, the mens rea of murder may consist of either an intention to kill or an intention to cause really serious injury. Thus if P (the primary offender) unlawfully assaults V (the victim) with the intention of causing really serious injury, but not death, and death is thereby caused, P is guilty of murder. Authoritative commentators suggest that most of those convicted of murder in this country have not intended to kill.

9.  As the Privy Council (per Lord Hoffmann) said in Brown and Isaac v The State [2003] UKPC 10, para 8,

“The simplest form of joint enterprise, in the context of murder, is when two or more people plan to murder someone and do so. If both participated in carrying out the plan, both are liable. It does not matter who actually inflicted the fatal injury. This might be called the paradigm case of joint enterprise liability".

It is (para 13) “the plain vanilla version of joint enterprise". Sir Robin Cooke had this same simple model in mind when, giving the judgment of the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168, 175, he said:

“… a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert".

Countless juries have over the years been directed along these lines, the example of a bank robbery in which the masked robbers, the look-out man and the get-away driver play different parts but are all liable being often used as an illustration. In this situation the touchstone of liability is the intention of those who participate.

10.  But there is what Sir Robin Cooke in Chan Wing-Siu v The Queen, p 175, called a “wider principle". In R v Powell (Anthony), R v English, above, as Lord Hutton made plain in the opening sentence of his leading opinion (p 16), the House had to consider a more difficult question: the liability of a participant in a joint criminal enterprise when another participant in that enterprise is guilty of a crime, the commission of which was not the purpose of the enterprise. In the first appeal, that of Powell and Daniels, three men (including the two appellants) had gone to the house of a drug dealer in order to buy drugs, but when he had come to the door one of the three men (it was not clear which) had shot him dead. Since neither Powell nor Daniels could be identified as the gunman, they could be convicted only as accessories, but it was submitted on their behalf that they could not be convicted as accessories unless it was proved against them, to the criminal standard, that they had had the mens rea necessary for murder, namely an intention to kill or to cause really serious injury. An accessory could not, it was argued, be convicted on a basis which would not suffice to convict the primary killer.

11.  While acknowledging an element of anomaly in its decision (Lord Steyn, p 14; Lord Hutton, p 25), the House rejected that submission. Drawing on a strong line of authority which included R v Smith (Wesley) [1963] 1 WLR 1200; R v Anderson; R v Morris [1966] 2 QB 110; Chan Wing-Siu v The Queen, above; Hui-Chi-ming v The Queen [1992] 1 AC 34; and McAuliffe v The Queen (1995) 69 ALJR 621 the House held (p 21) that “participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise". Thus the House answered the certified question in the appeal of Powell and Daniels and the first certified question in the appeal of English by stating that (subject to the ruling on the second certified question in 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". Thus in this context the touchstone is one of foresight. In the case of Powell and Daniels the Crown case was that the two appellants knew that the third man was armed with a gun, and the Crown accepted that if the jury did not find that they knew this they would not be guilty of murder (p 17). Since the jury convicted, it may be inferred that they found the appellants did have this knowledge. Possession of the gun was not of itself conclusive, but it was evidence from which the jury could infer that the appellants foresaw (or “realised” or “contemplated”) that the gun might be used to inflict, at least, really serious injury.

12.  In the case of English there was what proved to be a significant factual variant. English and an associate, Weddle, combined to attack a police officer with wooden posts and cause injury to him. In the course of the attack, Weddle used a knife and stabbed the officer to death. The question was whether, as a participant in the joint enterprise to attack and injure the officer, English was liable for the fatal injury inflicted by Weddle with the knife. The factual variant was that, as the Crown accepted, English might have been unaware that Weddle had the knife (pp 10, 16, 30). The Crown contended that even if English did not know that Weddle had a knife, English foresaw that Weddle would cause really serious injury to the officer, and that this foresight was sufficient to impose criminal liability upon him for the murder (p 17). Thus the second certified question in his case was (p 17): “is it sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts foreseen or intended by the secondary party?". The question on the facts of the case, as Lord Hutton said (p 17), was in essence whether the secondary party was guilty of murder if he foresaw that the other person taking part in the enterprise would use violence that would cause really serious injury, but did not foresee the use of the weapon that was used to carry out the killing.

13.  In R v Smith (Wesley), above, pp 1206-1207, it had been recognised that a radical departure by the primary killer from the foreseen purpose of an enterprise might relieve a secondary party of liability. This had also been accepted in R v Anderson; R v Morris, above, p 120, where Lord Parker CJ, giving the reserved judgment of a five-member court, said:

“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 most recent and detailed consideration of this question was, however, found in the judgment of Carswell J in a non-jury trial in Northern Ireland in R v Gamble and Others [1989] NI 268.

14.  In that case four members of the Ulster Volunteer Force had combined to inflict punishment on an allegedly delinquent member of the organisation. The punishment was to consist of knee-capping (the firing of a bullet or bullets into a knee or other joint, so as to cripple but not kill the victim) and a beating. In the event he was killed. A number of bullets were found to have caused wounds which could, but need not, have proved fatal. The cause of his death was the extremely forceful cutting of his throat. One of the four defendants (Gamble) pleaded guilty after his statements were ruled admissible, and another (Boyd) was found guilty by the judge. The substance of the judgment as reported concerns the other two defendants, Douglas and McKee. In their cases the judge was not satisfied to the requisite standard that they had in contemplation the possibility that the punishment squad would deliberately kill the victim (pp 276) or that the operation involved the murder of the victim (p 279). The issue, as the judge held (p 282) after reviewing the authorities, was whether the actions of Gamble and Boyd went beyond what was expressly or tacitly agreed as part of the common enterprise, with the consequence that their acts went beyond the contemplation of Douglas and McKee and the authority given by them. It was necessary in considering that to have regard to the nature of the act contemplated and that which was in fact committed. The Crown argued (p 282) that since there was an intention to inflict grievous bodily harm, and that satisfied the mens rea requirement of murder, the deliberate killing of the victim was not very different in kind from what Douglas and McKee contemplated. But Carswell J did not accept that. He said:

“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-Siu. 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.”

Thus Douglas and McKee were acquitted of murder and convicted of wounding with intent to do the victim grievous bodily harm.

15.  In R v Powell (Anthony); R v English, above, p 29, the House held this decision to be correct. The submission for English in that case (p 28) was that to be guilty under the principle in Chan Wing-Siu v The Queen, above, the secondary party must foresee an act of the type which the principal party committed, and that in English’s case the use of a knife was fundamentally different to the use of a wooden post. It seems clear that counsel’s use of the expression “fundamentally different” mirrors the language of the second certified question in English’s case, quoted above in para 12, and counsel’s submission was accepted as correct (p 28). But Lord Hutton thought it undesirable to formulate a precise answer to the second question. It is, however, clear that his answer to the question was in the negative. The trial judge’s direction to the jury was held to be defective because (p 30)

“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 Criminal Appeal held in Reg v Anderson, that English should not be found guilty of manslaughter.”

16.  The decision of the House in R v English did not lay down a new rule of accessory liability or exoneration. Its significance lies in the emphasis it laid (a) on the overriding importance in this context of what the particular defendant subjectively foresaw, and (b) on the nature of the acts or behaviour said to be a radical departure from what was intended or foreseen. The greater the difference between the acts or behaviour in question and the purpose of the enterprise, the more ready a jury may be to infer that the particular defendant did not foresee what the other participant would do.

The trial judge’s direction to the jury

17.  The trial judge in this case gave the jury a very detailed and carefully considered direction on joint enterprise as applicable to the case, which he reduced to writing and took the jury through orally with minimal alteration. He had previously, and very properly, discussed this direction with counsel, although the text was not agreed.

18.  He concluded his direction in this way:

“So you must decide what was the common purpose of those participating in the attack on Tyrone Clarke in Brett Gardens and to which a Defendant joined up (if, but only if, you are sure that he did participate in the attack). You may think that the attack on Tyrone Clarke was not entirely spontaneous, the result of a chance encounter in the Rock ginnel. Amongst those who had gathered at Sholay’s; or who were in the group advancing up Hill Street, or who were seen at the bottom of Ladypit Lane or in Beeston Road or in the Rock ginnel, must there have been some comment or discussion as to what the group was about? And what the weapons on show were for? What matters should you have in mind in deciding whether the production and use of the knife which stabbed Tyrone Clarke were within the scope of the common purpose of the attackers in Brett Gardens? The question is entirely a matter for you but they may include: Is the character of a knife e.g. its propensity to cause death, fundamentally different from the other weapons being openly carried? If those other weapons were, in your judgement, equally likely to inflict fatal injury when used as the attackers implicitly agreed, then the mere fact that a different weapon, a knife, was used by one of them may be immaterial. Was the common purpose of the attackers to use lethal weapons so as to kill or to cause really serious injury by any such means at their disposal? If you are sure that the common purpose to which the Defendant whose case you are considering joined, included the use of lethal weapons to be used with the intention of killing the victim or causing him really serious injury, then it is open to you to conclude that the use of a knife in the attack was within the scope of the unlawful enterprise. But if you conclude that to stab with a knife in the back was in a different league to the kind of battering to which the attackers implicitly agreed upon by the use of those other weapons, then the others are not responsible for the consequences of the use of the knife unless in the case of the Defendant whose case you are considering he actually foresaw the use of a knife to kill Tyrone Clarke.

The mere fact that by attacking the victim together, each participant in the attack had an intention at least to cause really serious injury, is insufficient to make each responsible for the death of the victim caused by the use of a lethal weapon used by one of the attackers with the same intent. The prosecution must go further as I have indicated and prove in the case of each defendant, that he took some part in the attack on Tyrone Clarke in Brett Gardens and either that the use of lethal weapons, including a knife, was within the scope of that criminal enterprise which he joined as I have described above; or that because of circumstances within his particular knowledge, he himself realised that a knife might be used in the attack with the intention of killing Tyrone Clarke or causing him really serious injury.

Thus, if you are sure that the Defendant whose case you are considering:

???????????????  Was himself carrying a knife and produced it in the attack; or

???????????????  Knew before the stabbing that one or more of the attackers had a knife in his possession and realised that he or they might use it in the attack; or

???????????????  During the actual attack on Tyrone Clarke and before he was fatally stabbed, saw another attacker with a knife out ready to use it in the attack, yet he continued to play a part in it;

any of these matters would, you may think, be powerful evidence of his joint responsibility for the death of Clarke by the use of a knife because, quite apart from the scope of the common purpose of the attackers, that defendant himself foresaw the use of a knife to kill in the attack.

So your approach to the case should therefore be as follows:

1.  Are you sure that the man, whoever he was, who stabbed Tyrone Clarke with a knife so as to cause his death, intended, at the very time of the stabbing, to kill him or to cause him really serious injury; i.e. was he guilty of murder?

If not sure: not guilty and go to Count 2 because as a matter of law, none of these defendants can be guilty of murder unless you are sure that the knifeman committed the offence of murder.

If sure: go to question 2.

2.  Are you sure that the Defendant whose case you are considering took some part in the attack on Tyrone Clarke in Brett Gardens? Participation in the confrontation in the Rock ginnel is not enough; such participation, if proved, may or may not help you as to the facts of subsequent events in or on the way to Brett Gardens. Did the Defendant use violence to Tyrone Clarke at the rear of Brett Gardens? Did he chase and there, with others, surround Tyrone Clarke intending to enable others to use such violence? As I have directed you, mere presence at or very near the scene of the attack is not enough to prove participation. But if you find that a particular defendant was on the scene and intended and did by his presence alone encourage the others to attack Tyrone Clarke, that would amount to participation in it.

If not sure: not guilty and go to Count 2.

If sure: go to question 3.

3.  Are you sure that in taking part in the attack on Tyrone Clarke, the Defendant whose case you are considering, either shared the intention to kill him or to cause him really serious injury; or that he realised that one of the attackers might use such violence by the use of lethal weapons to Tyrone Clarke as to kill him with intent to kill or to cause him really serious injury?

If not sure: not guilty and go to Count 2.

If sure: go to question 4.

4.  Are you sure either that the actions of the knifeman in producing the knife and stabbing Tyrone Clarke as he did with it were within the scope of the common purpose of those attacking him which that defendant joined; or that the Defendant whose case you are considering because of particular matters within his knowledge, realised that one or more of the attackers might produce and use a knife in the attack and that such attacker might kill with the intention of killing Tyrone Clarke or causing him really serious injury.

If not sure: not guilty and go to Count 2.

If sure: guilty of murder and go no further.”

It has been pointed out, correctly, that the reference in the third question to sharing the intention to kill was too favourable to the appellants, since if any of them had had that intention he would have been guilty of murder on the simple basis described in para 9 above and the jury would have had no need to consider any further question.

The argument