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

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44.  As my noble and learned friend, Lord Bingham of Cornhill, has pointed out at para 16 of his speech, in reaching this conclusion, Lord Hutton was not purporting to set the law off on a new course. On the contrary, he emphasised, [1999] 1 AC 1, 30F, that the appropriate test was to be found in the judgment of Lord Parker CJ in R v Anderson; R v Morris [1966] 2 QB 110, 120B-D:

“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.”

It is for the jury to determine, by applying this test, whether the person who carried out the killing departed completely from the concerted action of the common design. In the case of English, all that the House decided was that, on the evidence, this issue should have been left to the jury. His conviction for murder was accordingly quashed. The House does not seem to have been asked to consider whether a retrial would be appropriate.

45.  Lord Bingham has outlined the circumstances of the present case. In particular, there was evidence that the participants in the attack on the opposing group, which included Tyrone Clarke, knew that weapons such as baseball bats, a scaffolding pole and a knife or knives might be used to inflict serious bodily harm. There was also evidence on which the jury would have been entitled to conclude that the fatal stab wound was inflicted with the intention of killing Clarke. In these circumstances Wakerley J directed the jury that they could convict a particular defendant if they were sure that he 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.”

46.  Under reference to the decision in English, Mr Harrison QC submitted that this was a misdirection. The judge should have told the jury that, if they concluded that the principal had struck the fatal blow with the intention of killing the victim, then they should acquit the appellants if they considered that the intention to kill had taken the principal’s action beyond the scope of the common design and rendered it fundamentally different from anything contemplated by the appellants.

47.  I would reject that submission. It really rests on the proposition that, on a proper application of the approach in R v Anderson; R v Morris [1966] 2 QB 110, 120B-C, the deliberate killing of Tyrone Clarke by stabbing him with a knife could be regarded as a complete departure from anything which the appellants contemplated as part of their common design in attacking the opposing group of youths. But, in my view, the reference to the use of a different weapon is an integral part of Lord Parker CJ’s formula in that passage. In other words, the change to a more deadly weapon is one of the essential elements which can make the killer’s action a complete departure from anything contemplated by the other participants. That is made clear in Lord Brown’s formulation of the relevant approach in para 68 of his speech.

48.  In the present case the simple fact is that the appellants knew that they were taking part in a joint attack with the purpose of causing serious injury, in which one or more of the participants were armed with a knife. Obviously, those participants would not have had a knife with them unless they were prepared to use it in the attack, if the occasion arose. In the absence of any evidence to the contrary, the jury would have been entitled to conclude that the appellants must have realised this when they joined in the attack. Moreover, the appellants were in no position to control what would be done with the knife or knives during the attack. So, in no sense could killing due to the use of a knife be regarded as a complete departure from what the appellants contemplated as being involved in the common design.

49.  Suppose, however, that the appellants did not specifically contemplate that one of their number would use a knife with the intention of killing any of their opponents. Nevertheless, they participated in an attack in which, as they knew, they would have no control whatever over what those armed with a knife or any other weapon might do with it. In joining in the attack, the appellants therefore took the risk of anything that any of their number might do with the weapon at his disposal in the heat of the moment. In these circumstances any decision to kill did not “relegate into history” the events in which the appellants were involved. Rather, the killing flowed directly from the joint attack in which the appellants had decided to participate. The words of Sir Robin Cooke in Chan Wing-Siu [1985] AC 168, 177D-E, are apt to describe the appellants’ predicament:

“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.”

The considerations identified by Lord Bingham in paras 24 and 25 of his speech support this approach.

50.  For these reasons, and in agreement with your Lordships, I am satisfied that the appeals must be dismissed.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

51.  There are many more murderers under our law than there are people who have killed intentionally. The actus reus of murder is, of course, the killing of the victim; the mens rea (established in R v Cunningham [1982] AC 566) is the intention either to kill the victim or at least to cause him some really serious bodily injury—grievous bodily harm as it used to be called, gbh for short. As this appeal illustrates, moreover, there is a further group of murderers too, those who did not intend even gbh but who foresaw that others might kill and yet nonetheless participated in the venture.

52.  If more than one person participates, in whatever capacity, in attacking a victim, each intending that he be killed, then, if he dies, all are guilty of murder. That is what Lord Hoffmann in Brown & Isaac v The State [2003] UKPC 10 (para 13) called “the plain vanilla version of joint enterprise". But what if one or more of the participants intends merely a beating—injury less than death, perhaps gbh, perhaps actual bodily harm, perhaps not even that—yet the attack results in the victim’s death? Clearly, whichever assailant(s) inflicted the violence which actually caused the death, provided always he (they) intended at least gbh, will be guilty of murder. But what of the others, the secondary parties or accessories?

53.  Subject to an important qualification (the English qualification as I shall call it, established as it was in the second of the two linked cases: R v Powell (Anthony), R v English [1999] 1 AC 1), the position of accessories to murder is as stated by Lord Lane CJ in R v Hyde [1991] 1 QB 134, 139 as follows:

“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.”

The reference there to Professor Smith was to his comments on a number of earlier decisions including Chan Wing-Siu v The Queen [1985] AC 168 and R v Wakely [1990] Crim LR 119. Sir Robin Cooke in the former (at p175) had spoken of:

“the wider principle [wider than joint enterprise or common purpose liability] 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 . . . .The criminal culpability lies in participating in the venture with that foresight.”

54.  By the same token that if someone intentionally inflicts gbh he takes the risk that his actions may kill, whereby he will be held liable for murder, so too if he participates in a venture foreseeing that another may act so as to commit murder, he takes the risk that in that way also he may himself become guilty of murder.

55.  The House in Powell (subject, again, to the English qualification to which I shall shortly turn) confirmed the correctness of the statement of principle in Hyde. The facts of Powell, indeed, exemplified its application. They are simply told. The two appellants together with a third man went to purchase drugs from a drug dealer. One of the three (assumed to be the third man rather than either appellant), to the knowledge of the other two, was carrying a gun and on arrival at the dealer’s house shot him dead. The Recorder of London directed the jury in terms virtually identical to those set out above from Hyde. It was, of course, implicit in the appellants’ conviction that the jury were satisfied they had foreseen at least that the gunman might intend gbh. The question certified for the House’s opinion was:

“Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or with intent to cause grievous bodily harm or must the secondary party have held such an intention himself?”

It was answered adversely to the appellants so that their appeal failed.

56.  The qualification to that principle decided in English arose from a second question certified in these terms:

“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?”

57.  The brief facts of English were that during the course of an attack by English (then aged 15) and another man (Weddle, aged 25) with wooden posts upon a police sergeant, Weddle suddenly drew a knife and stabbed the sergeant to death. The jury was directed that even if English knew nothing of the knife, providing he “joined in an unlawful attack on the sergeant realising at that time that there was a substantial risk that in that attack Weddle might kill or at least cause some really serious injury to the sergeant” he would be guilty of murder.

58.  The House allowed English’s appeal because:

“[The judge] 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 R v Anderson [R v Anderson; R v Morris [1966] 2 QB 110], that English should not be found guilty of manslaughter.” (Lord Hutton at p 30 C-D)

59.  The essential facts of Anderson and Morris were much like those in English save that until Anderson drew his knife no weapons at all had been used in the assault. The jury was directed that even if Morris had no intention to kill or cause grievous bodily harm to the victim (Welch) and knew nothing of Anderson having a knife, provided he took part in the attack on Welch he was guilty of manslaughter. Lord Parker CJ giving the judgment of a five judge Court of Appeal said this:

“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.”

60.  An earlier allusion to the principle is to be found in the judgment of another 5 judge Court of Appeal in R v Smith (Wesley) [1963] 1 WLR 1200. Rejecting the appeal, the court found the fatal knifing there to have been “clearly within the contemplation of [the appellant].” Helpfully for present purposes, however, it added:

“In a case of this kind it is difficult to imagine what would have been outside the scope of the concerted action, possibly the use of a loaded revolver, the presence of which was unknown to the other parties . . .”

61.  Having decided to resolve English’s appeal by the application of the principle stated by Lord Parker in Anderson, Lord Hutton thought it “undesirable to seek to formulate a more precise answer to the [second certified] question in case such an answer might appear to prescribe too rigid a formula for use by trial judges". In short, English’s appeal, like Morris’s before it, succeeded on the basis that in each case the killer had “used a weapon and acted in a way which no party to [their] common design could suspect” (Morris and Anderson)—"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” (para 58 above).

62.  That, then, is the essential background to the present appeal. What is now postulated is that in the course of jointly attacking a victim one of the participants intentionally kills him, that intention being unknown to and unforeseen by a secondary party. The certified question then asks whether that intention is relevant:

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

(b) 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.”

63.  As it seems to me, the first question is misconceived. If the principal (the killer) was at all times intent on killing the victim and the secondary party was not, then it is simply unrealistic to talk in terms of their sharing a common purpose. But that matters nothing. Once the wider principle was recognised (or established), as it was in Chan Wing-Siu and Hyde, namely that criminal liability is imposed on anyone assisting or encouraging the principal in his wrongdoing who realises that the principal may commit a more serious crime than the secondary party himself ever intended or wanted or agreed to, then the whole concept of common purpose became superfluous. There really is no longer any need for judges to direct juries by reference both to whether the relevant actions were within the scope of the common purpose of those concerned and also by reference to whether the secondary party realised that the principal might commit the acts constituting the more serious offence. The second limb of such a direction effectively subsumes the first. If the relevant acts were within the scope of the principal’s and accessory’s common purpose, necessarily the secondary party would realise that the principal might thereby commit the more serious offence. And if the secondary party did not foresee even the possibility of the more serious offence, such could hardly have been within the scope of any shared purpose.

64.  That, indeed, seems to me what Lord Hutton was saying at the conclusion of his opinion in English (p 31 B-D):

“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 [in Anderson and Morris, a passage pointing out that those engaged in a joint enterprise are liable for the acts done pursuant to it including liability for unusual consequences if they arise from the execution of the agreed joint enterprise, but not for the consequences of an unauthorised act if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise]. 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 R v Anderson; R v Morris.”

65.  I turn, therefore, to the second limb of the question certified for your Lordships’ opinion which focuses on the all-important foresight test. I am of the clear view that the answer to it must be ‘no'. The qualification to the Hyde direction established by English concerns simply the secondary party’s foresight of possible acts by the principal constituting more serious offences than the secondary party himself was intending, acts to which he never agreed and which from his standpoint were entirely unwanted and unintended. But an act is an act and either its possibility is foreseen or it is not. I see no possible reason or justification for further complicating this already problematic area of the law by requiring juries to consider and decide whether the principal’s intent when killing the victim was the full intent to kill or the usual lesser intent to cause gbh. Whichever it was, the act was the act of killing and the only question arising pursuant to the English qualification is whether the possibility of killing in that way (rather than in some fundamentally different way) was foreseen by the accessory—whether the act which caused the death was, as Sir Robin Cooke had put it in Chan Wing Siu, “of a type” foreseen by the secondary party.

66.  Of course the secondary party can say in evidence that he was ignorant not merely of the principal’s possession of a knife or gun or whatever it was but also of his murderous intent. But if the jury conclude that he knew about the weapon and foresaw the possibility of its use to cause at least grievous bodily harm then they must convict him of murder whether he knew of the killer’s murderous intent or not. Powell itself is surely directly in point on this issue: no one suggested there that it mattered whether the appellants realised that the third man was intent on killing the drug dealer; it was sufficient and fatal to their defence that they knew he had a gun and foresaw he might use it at least to cause gbh.

67.  The one case amongst the many authorities discussed in Powell and English that I confess to having some difficulty with is R v Gamble [1989] NI 268 (considered by Lord Hutton at p 28 G-30B). It is not at first sight clear why, given that the bullet wounds would in any event have been fatal even had the two principals not then accelerated the victim’s death by cutting his throat, the secondary parties (who foresaw and indeed intended the use of a gun to inflict gbh by knee-capping) were not liable for the victim’s murder on precisely the same basis as the appellants in Powell. As, indeed, Lord Hutton himself observed (at p 30A-B), having just noted that the “action unforeseen by the secondary party” was the killing of the victim “by cutting his throat with a knife":

“The issue . . . whether a secondary party who foresees the use of a gun to knee-cap, 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".

But why, I wonder, is that merely “debatable"? Why is the secondary party in those circumstances not plainly guilty of murder, just as the appellants in Powell? And if that be right, why should it make all the difference that in fact the victim’s death was caused by a knife? After all, as Lord Hutton said just a few paragraphs later (at p 30 F-G):

“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.”

68.  Gamble to my mind stretches to breaking point the English qualification to the basic Hyde principle. As I have endeavoured to show, that qualification was founded squarely on Anderson and Morris and there was certainly nothing in that case—nor, indeed, in the determinative passage in Lord Hutton’s speech in English set out at para 58 above—to suggest any greater relaxation of the Hyde principle than was necessary for the success of English’s own appeal. Morris, it will be recalled, knew nothing of any weapon and did not intend even gbh. And Geoffrey Lane QC it was, after all, as your Lordships will have noted, who in 1966 acted for Morris on his successful appeal and who in 1990, giving the Court’s judgment as Lord Chief Justice in Hyde, applied Chan Wing-Siu and stated the basic principle governing the liability of secondary parties for murder as set out in para 53 above. It would be surprising if in those circumstances the basic Hyde principle required much in the way of modification. As now qualified it can surely be restated thus:

“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 unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A’s act is to be regarded as fundamentally different from anything foreseen by B.“ (The italicised words are designed to reflect the English qualification).

As I have indicated, I do not find the decision in Gamble easily reconcilable with this formulation.

69.  Whether or not my doubts about Gamble are well-founded, however, it would assist the appellants here only if it were to be explained on the basis that the killer’s intention actually to kill was indeed material to the assessment of whether the act was foreseen. Had that been Lord Hutton’s view of the matter, however, he would hardly have been in two minds with regard to the shooting scenario envisaged at para 67 above.

70.  On the narrow arguments now raised I am in full agreement with all that Lord Bingham of Cornhill says at paras 24 and 25 of his opinion. There is this further consideration too. At what point is it suggested that the killer’s actual intention is to be determined? He may have embarked upon the venture intending at most to cause gbh but later, in the heat of battle, for any one or more of a host of possible reasons, changed his mind and decided to kill or perhaps merely become reckless as to whether he killed or not. It is absurd that the criminal liability of secondary parties should depend upon such niceties as these.

71.  For the reasons given I would decline to answer the first part of the certified question. I would, however, answer the all-important second part in the negative and, in common with all your Lordships, dismiss these appeals.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

72.  The facts and issues in this appeal, and the judicial decisions bearing on them, have been fully described by my noble and learned friends Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood in their respective opinions which I have had the privilege of reading in draft. The central issue in this appeal arises out of the interrelationship of two important aspects of the English criminal law.

73.  The first aspect concerns the constituents of the crime of murder, which of course involves the actus reus of killing the victim. Crucially for present purposes, the mens rea required for murder is not limited to an intention to kill the victim; it suffices if the intention is to cause him really serious bodily injury (“serious injury”). That was decided by this House in R v Cunningham [1982] AC 566.

 
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