(back to preceding text)

19.  The main argument for the appellants, persuasively advanced by Mr Michael Harrison QC, took as its starting point the pathological findings summarised in para 3 above. Those, it was said, showed that the stab wound which caused the death of the deceased was inflicted with the intention to kill and not merely to cause really serious injury. The location and direction of the wound, and the force with which it was delivered, showed that to be so, or at least raised a strong possibility that it was so. But the appellants intended and foresaw no more than the infliction of really serious injury. In consequence, it was strongly arguable that the principal’s intention to kill, if found by the jury, took his (the principal’s) action outside the scope of the common design and rendered it fundamentally different from anything the appellants had foreseen or contemplated. These were not inferences which the jury would necessarily draw, but inferences which, properly directed, they might draw. The trial judge had, however, declined to direct the jury along these lines, and this non-direction was a misdirection which deprived the appellants of a chance of acquittal they should have enjoyed.

20.  Mr Harrison relied on two authorities in particular to support this contention. The first was the passage from Lord Parker CJ’s judgment in R v Anderson; R v Morris, p 120, quoted in para 13 above:

“… 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 …".

Secondly Mr Harrison relied on a passage in the judgment of Beldam LJ (for the Court of Appeal) in R v Uddin [1999] QB 431, 441 where he said:

“Notwithstanding these difficulties, we think that the principles applicable to a case such as the present are as follows:

(i)  Where several persons join to attack a victim in circumstances which show that they intend to inflict serious harm and as a result of the attack the victim sustains fatal injury, they are jointly liable for murder; but if such injury inflicted with that intent is shown to have been caused solely by the actions of one participant of a type entirely different from actions which the others foresaw as part of the attack, only that participant is guilty of murder.

(ii)  In deciding whether the actions are of such a different type the use by that party of a weapon is a significant factor. If the character of the weapon, e.g. its propensity to cause death, is different from any weapon used or contemplated by the others and if it is used with a specific intent to kill, the others are not responsible for the death unless it is proved that they knew or foresaw the likelihood of the use of such a weapon.”

Mr Harrison also drew attention to R v Gilmour [2000] 2 Cr App R 407, 415, where Sir Robert Carswell LCJ, giving the judgment of the Court of Appeal in Northern Ireland, accepted it as conceivable that the nature of the principal’s mens rea may change the nature of the act committed by him. Reference was also made to Attorney General’s Reference (No 3 of 2004) [2005] EWCA Crim 1882, [2006] Crim LR 63. The plan in that case had been to discharge a firearm near the victim so as to frighten him, and in the event it had been fired at him and killed him. What had changed (Mr Harrison argued) was the intention of the principal, showing it to be relevant.

21.  It was, inevitably, common ground between the parties that an accessory may only be criminally liable for a crime which the principal has committed, in murder unlawful killing with intent to kill or cause really serious injury. It was also common ground that the test of an accessory’s liability under the wider principle explored in R v English is one of foresight. The crucial divide between the parties was: foresight of what? The appellants’ answer would include foresight of the principal’s intention. The respondent’s answer, clearly given by Mr Robert Smith QC for the Crown, was: foresight of what the principal might do. On the Crown’s analysis the principal’s undisclosed intention is beside the point. It is his acts which matter.

22.  The appellants’ argument derives little assistance, in my opinion, from authority. In R v Anderson; R v Morris, above, the principle advanced by Mr Geoffrey Lane QC (pp 113-114) and accepted by the court (pp 118-119) concentrated on the unauthorised act of the principal and on “what was done". The case turned on the use of a knife, which the successful appellant denied knowing his associate had. In R v Uddin the facts were somewhat similar: the case did not turn on the intention with which the knife was used but on its unforeseen production and use. It is, with respect, clearly inappropriate to speak of a weapon’s “propensity to cause death", since an inanimate object can have no propensity to do anything. But of course it is clear that some weapons are more dangerous than others and have the potential to cause more serious injury, as a sawn-off shotgun is more dangerous than a child’s catapult. Sir Robert Carswell’s observation in R v Gilmour cannot, I think, be read as laying down any principle. In Attorney General’s Reference (No 3 of 2004) it was the radically different nature of the act, not the principal’s change of intention, which dictated the result.

23.  I regard the respondent’s submission as consistent with existing authority. In describing the wider principle in Chan Wing-Siu v The Queen, above, p 175, Sir Robin Cooke referred to “acts by the primary offender of a type which the former foresees but does not necessarily intend". In R v Gamble, above, p 282, Carswell J emphasised the need to have regard to “the nature of the act contemplated and that which was in fact committed". In R v English, above, p 28, the submission of counsel which Lord Hutton accepted was that “the secondary party must foresee an act of the type which the principal party committed …", and the judge’s direction was defective (p 30) in failing to invite the jury’s attention to the use of the knife by Weddle and the action on his part. As Laws LJ pithily observed in R v Roberts, Day and Day [2001] EWCA Crim 1594, [2001] Crim LR 984, para 52:

“The subject matter of a joint enterprise is not a state of mind or intention but an objective act which it is contemplated will or might be done".

24.  Authority apart, there are in my view two strong reasons, one practical, the other theoretical, for preferring the respondent’s contention. The first is that the law of joint enterprise in a situation such as this is already very complex, as evidenced by the trial judge’s direction and the Court of Appeal’s judgment on these appeals, and the appellants’ submission, if accepted, would introduce a new and highly undesirable level of complexity. Given the fluid, fast-moving course of events in incidents such as that which culminated in the killing of the deceased, incidents which are unhappily not rare, it must often be very hard for jurors to make a reliable assessment of what a particular defendant foresaw as likely or possible acts on the part of his associates. It would be even harder, and would border on speculation, to judge what a particular defendant foresaw as the intention with which his associates might perform such acts. It is safer to focus on the defendant’s foresight of what an associate might do, an issue to which knowledge of the associate’s possession of an obviously lethal weapon such as a gun or a knife would usually be very relevant.

25.  Secondly, the appellants’ submission, as it seems to me, undermines the principle on which, for better or worse, our law of murder is based. In the prosecution of a principal offender for murder, it is not necessary for the prosecution to prove or the jury to consider whether the defendant intended on the one hand to kill or on the other to cause really serious injury. That is legally irrelevant to guilt. The rationale of that principle plainly is that if a person unlawfully assaults another with intent to cause him really serious injury, and death results, he should be held criminally responsible for that fatality, even though he did not intend it. If he had not embarked on a course of deliberate violence, the fatality would not have occurred. This rationale may lack logical purity, but it is underpinned by a quality of earthy realism. To rule that an undisclosed and unforeseen intention to kill on the part of the primary offender may take a killing outside the scope of a common purpose to cause really serious injury, calling for a distinction irrelevant in the case of the primary offender, is in my view to subvert the rationale which underlies our law of murder.

26.  I would accordingly reject the appellants’ submission on this point. I would also reject a subsidiary submission that the judge should have explained to the jury what was meant by “fundamentally different". This is not a term of art. It may, or may not, be regarded as a helpful turn of phrase, but its meaning is plain and cannot be misunderstood by a jury to whom the governing principle has been explained, as it was here. In any event, it is hard to see how the judge could have explained his meaning more clearly than when he said (in his direction quoted in para 18 above):

“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".

27.  The Court of Appeal dismissed the appellants’ appeals for reasons with which I agree. In para 69 of their judgment they tentatively suggested a series of questions which a trial judge might invite a jury to consider in a case such as this. There is, and can be, no prescriptive formula for directing juries. Having made clear the governing principle, it is for trial judges to choose the terms most apt to enable juries to reach a just decision in the particular case. I would for my part, however, prefer the judge’s four questions (amended to remove the overly favourable direction in question 3) to the questions proposed in para 69.

28.  The Court of Appeal certified the following point of law of general public importance as involved in its decision:

“If in the course of a joint enterprise to inflict unlawful violence the principal party kills with an intention to kill which is unknown to and unforeseen by a secondary party, is the principal’s intention relevant,

(i)  to whether the killing was within the scope of a common purpose to which the secondary party was an accessory?

(ii)  to whether the principal’s act was fundamentally different from the act or acts which the secondary party foresaw as part of the joint enterprise?”

I would answer both parts of the question in the negative, and would accordingly dismiss these appeals.

29.    Since drafting this opinion I have had the benefit of reading the opinions of my noble and learned friends. I do not, with respect, share their doubts about the correctness of the decision in R v Gamble and Others [1989] NI 268, which on its special facts was unanimously approved by the House in R v English. There was nothing to suggest that either Douglas or McKee had any knowledge of a knife. Had they known of it, they would have been alerted to the fact that this was no ordinary knee-capping operation on which they were engaged: that requires a gun but not a knife. The use of a knife suggested something different and, potentially, even more sinister. The gun was of course to be used to cause really serious injury and might have had fatal consequences. But what, as I understand, was held to exonerate Douglas and McKee was that the violence in fact inflicted with the knife was of an entirely different character in an entirely different context from that which they had foreseen and, in that sense, bargained for. The result seems to me consistent with authority.

LORD SCOTT OF FOSCOTE

My Lords,

30.  I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill and for the reasons he gives, with which I am in full agreement I, too, would dismiss these appeals.

31.  Having had the further advantage, however, of reading in draft the opinions of my noble and learned friends Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury I want to add a few words of my own on what I take to be the principal question in this appeal, namely, whether an intention by the primary party to kill must be either known to or foreseen by a secondary party if the secondary party is to be held criminally liable for the killing. The premise to this question is that the two parties have joined in an enterprise to inflict serious bodily harm to the victim. My noble and learned friends have referred to the authorities that bear upon this question and cited the important passages from the judgments and there is no point in my adding to the citations. I wish simply to say that that if parties join together in an enterprise to inflict serious bodily harm on some victim, bodily harm of a degree that makes the death of the victim a foreseeably possible consequence, and if the victim is killed in the carrying out of this joint enterprise, there is no doubt but that he, or she, who struck the killing blow is guilty of murder regardless of whether there was an intent to kill (R v Cunningham [1982] AC 566) and it seems to me just that the secondary party too should be held guilty. It seems to me beside the point that the secondary party may not have known the killer to have been carrying the weapon actually used to effect the killing and I do not understand how his criminality can be held to depend on whether the killing stroke was effected by the club the killer was known to have carried or by the knife that he was not known to have carried. It would, of course, be necessary that the killing stroke should have been an act within the scope of the joint enterprise on which the parties had embarked but if parties embark on a punishment exercise that carries with it the foreseeable possibility of death of the victim, the instruments used for that purpose seem to me of much less importance than the purpose itself. I share, therefore, Lord Brown’s difficulty with R v Gamble [1989] NI 268 (para. 67 of his opinion) and concur in his suggested restatement of the Hyde principle ([1991] 1 QB 134) (para. 68 of his opinion).

32.  The circumstances attending upon a murder may cover a very broad spectrum, and, since the abolition of the death penalty and the introduction of specified minimum terms of imprisonment to be served by those on whom the mandatory sentence of life imprisonment is passed, the degree of culpability and responsibility of those convicted of an unlawful killing can be reflected by the length of that specified minimum term. This constitutes, in my opinion, a far more satisfactory means of dealing with those whose liability for the unlawful killing is secondary than a rule which would exonerate them from criminal liability on the ground that they did not know or suspect that the primary party was carrying the particular weapon that delivered the fatal blow.

LORD RODGER OF EARLSFERRY

My Lords,

33.  If A and B agree to kill their victim and proceed to attack him with that intention, they are both guilty of murder, irrespective of who struck the fatal blow. In Lord Hoffmann’s words, they are engaged in a “plain vanilla” joint enterprise. It can, in my view, make no difference if A and B agree to kill their victim by beating him to death with baseball bats, but in the course of the attack A pulls out a gun and shoots him. B must still be guilty of murder: since he intended to bring about the death of the victim, B cannot escape guilt on the ground that he did not foresee that A would kill him by using a gun instead of a baseball bat. The unforeseen nature of the weapon is immaterial. If, instead of a baseball bat, in the course of the attack A unforeseeably used an explosive and killed people in addition to the intended victim, then B would still be guilty of the murder of their intended victim - but not, I would think, of the murder of anyone else who was killed by the explosive.

34.  Go to the other end of the spectrum. Half a dozen youths engage in a fist fight with another group, but one of their number suddenly produces a knife and stabs one of their opponents to death. If the others on his side did not know that he had the knife, then they are not parties to its use and are not guilty of murder or manslaughter: Davies v Director of Public Prosecutions [1954] AC 378, 401 per Lord Simonds LC, adopted by the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168, 177E-H; R v Anderson; R v Morris [1966] 2 QB 110, 120B, per Lord Parker CJ.

35.  Moving up the scale of violence, if I attack someone with the intention of causing serious injury and I do in fact cause a serious injury from which he dies, then I am guilty of murder, even though I did not intend to kill him. R v Cunningham [1982] AC 566 settled the point. It follows that, if, for instance, A and B agree to use baseball bats to inflict serious injuries on their victim and do so, and the victim dies as a result, then both A and B are guilty of murder, even though they did not intend to kill him.

36.  What is the position, however, if in the course of the joint assault A produces a gun and shoots the victim with the intention of killing him? B’s position depends on what he contemplated when deciding to take part in the joint enterprise. Suppose that, knowing what A is like and that he tends to carry a gun, B contemplates that A may take a gun and use it in the course of the attack on the victim. Then, even if B is vehemently opposed to the use of a gun and tries to dissuade A from carrying one, nevertheless, if, being aware of the risk, B takes part in the joint assault, he will be guilty of murder if A shoots the victim. As Sir Robin Cooke explained, when delivering the judgment of the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168, 175G-H, B’s liability depends on the 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.

That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight”

That principle was restated and applied by Lord Lane CJ in R v Hyde [1991] 1 QB 134, 139C-E:

“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 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.”

Lord Hutton endorsed and applied that approach in dismissing the appeal of Powell and Daniels, R v Powell [1999] 1 AC 1, 25-26. Like my noble and learned friend, Lord Brown of Eaton-under-Heywood, I consider that a direction to the jury based on this approach will often be all that is required.

37.  The report and the speeches in the appeal of Powell and Daniels reveal little about the facts - but, presumably, all that the House considered necessary for determining the appeal. Three men went to the house of a drugs dealer in order to buy drugs. When he came to the door, however, one of the men immediately shot the dealer dead. The Crown case proceeded on the basis that, if the third man fired the shot, Powell and Daniels had known that he was carrying a gun and had realised that he might use it to kill or cause really serious injury. In such a case, there is clearly a risk that the person with the gun will kill someone - perhaps in order to get the drugs, perhaps to overcome some opposition, perhaps so that the participants should get away undetected. Exactly when and how the gun will be used is unpredictable, but there is a real risk of a shooting of some kind in the course of the criminal enterprise - why else would the third man be carrying a loaded gun? By going along with the armed man and so lending themselves to the enterprise, Powell and Daniels ran the risk that, for some reason, in the course of the enterprise he would use the gun, with fatal results. So, when he shot the man dead the moment the door was opened, they were guilty of murder.

38.  The circumstances in R v Gamble [1989] NI 268 were different. The victim was a member of the Ulster Volunteer Force who was apparently suspected of having given information about its activities to the police. He was shot twice, but died from having his throat cut. Four men were charged with his murder. One pleaded guilty and one was convicted of murder - the evidence pointed to his actual participation in the killing. The remaining two were acquitted. The judge, Carswell J, found that the two whom he acquitted had realised that, by way of punishment, the victim might be kneecapped with the use of a firearm or have his limbs broken, but not that he would be deliberately killed.

39.  Carswell J was satisfied, of course, that these two defendants were party to an enterprise to inflict serious injury (grievous bodily harm): indeed, he convicted them both of assaulting the victim with the intent to do him grievous bodily harm. His Lordship also accepted that it could be said that the two defendants must be taken to have had within their contemplation the possibility that the victim’s life might be put at risk, even though he considered that death due to complications from kneecapping must be very rare. So, if the victim had died from injuries sustained in the kneecapping, Carswell J would have convicted the two defendants of murder. In fact, however, he acquitted them of murder because the victim’s death had been caused by one of the other two participants deliberately cutting the victim’s throat. Although the mens rea of murder included intending to inflict grievous bodily harm, at p 284B-C, Carswell J did not consider it “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.” Citing the opinion of Lord Parker CJ in R v Anderson; R v Morris [1966] 2 QB 110, 120E-F, Carswell J proceeded, at p 284C-285A, on the basis that cutting the victim’s throat amounted to “an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors.” So he concluded that “the killing did not follow directly as the result of the crime to which the [two defendants] lent themselves as accessories.”

40.  The facts of Gamble were unusual, involving a situation where the two defendants could point to a definite limited purpose for which they contemplated that violence would be used. Those unusual facts lent themselves to a possible conclusion, which Carswell J in fact reached, that there had indeed been a break in causation between the assault on the victim, with the intention of inflicting grievous bodily harm, and his murder by cutting his throat. In effect, for Carswell J, it was as if the two defendants whom he acquitted of murder had been about to kneecap the victim when two other men suddenly emerged from the undergrowth and cut his throat. The decision must be regarded as turning on the judge’s assessment of the very special facts.

41.  For the reasons I have given, no such approach would have been open to the defendants Powell and Daniels in R v Powell [1999] 1 AC 1: use of the gun to kill was a risk that was bound up with the whole enterprise on which the three men had embarked.

42.  Along with the appeal of Powell and Daniels, the House considered the appeal of English. It arose out of circumstances where English and an older man, Weddle, had embarked on a joint enterprise to use wooden posts to attack and cause injury to a police officer. In the course of the attack Weddle used a knife and stabbed the officer to death. So, as with the two defendants in Gamble, the evidence showed that English had been participating in an attack with the intention of causing serious injury to the victim. He would accordingly have been guilty of murder if the officer had died from injuries caused by a blow or blows with the wooden posts.

43.  There was, however, evidence on which the jury could have concluded that English did not know that Weddle had a knife. Lord Hutton, with whom the other members of the committee agreed, referred with approval to the passage in Gamble [1989] NI 268, 283, 284, where Carswell J concluded that the two defendants should not be convicted of murder, even though they had participated in an assault with intent to inflict grievous bodily harm: [1999] 1 AC 1, 29B-30B. In the circumstances of English’s case Lord Hutton held, at p 30C-E, that the judge should have directed the jury that, if they 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.”