(back to preceding text)

74.  The second aspect of criminal law relevant for present purposes is the law relating to accessories, that is, those who are liable for crimes primarily perpetrated by others. Accessory liability extends to render a person, B, criminally liable for an act primarily committed by another party, A, when B “participat[es] in a joint criminal enterprise [with A] with foresight or contemplation of [that] act as a possible incident of that enterprise” - per Lord Hutton in R v Powell (Anthony); R v English [1999] 1 AC 1, 21.

75.  Accordingly, when A and B embark on a joint enterprise which B intends or foresees could involve killing (or to causing serious injury to) a victim, V, and A actually kills V as A intended (or, as the case may be, as a result of A intending to cause him serious injury) then B, as well as A, is guilty of V’s murder, because B intended or foresaw that A would kill V (or, as the case may be, that A would cause V serious injury).

76.  The fundamental issue raised on this appeal can be reduced to the following facts. A and B jointly attack V. B intends to cause V serious injury, but not to kill him. B believes that A has the same intention. In the course of the attack A kills V, intending to kill him. Can B avoid conviction for murder by saying that he should not be criminally liable for V being killed as a result of A intending to kill him, rather than as a result of A intending seriously to injure him?

77.  Like many questions of principle, it may not be possible to answer this question in the affirmative or the negative without qualification. Having said that, I believe that, in the absence of special circumstances, the answer to the question should be in the negative. In other words, I consider that B should not be able to escape being convicted of murder in such a case, at least in the absence of special circumstances.

78.  I propose first to approach the question as a matter of principle. I will then consider whether, in the light of the previous cases, there could be special circumstances which give rise to exceptions to, or which even call into question, the conclusion I have reached in principle.

79.  When seeking to resolve a question of principle in criminal law, it appears to me that one should normally bear in mind legal coherence, protection of the public, fairness to defendants, and the realities of jury trials.

80.  So far as the authorities are concerned, they indicate that, where A and B are engaged on a joint criminal enterprise, B should be criminally liable for A’s acts, save insofar as any act of A involved his having “departed completely from the concerted action of the common design", to quote from Lord Parker CJ in R v Anderson; R v Morris [1966] 2 QB 110, 120 The same point was made in different words by Beldam LJ in R v Uddin [1999] QB 431, 441B-C, where he referred to “the actions” of A being attributable to B, unless they were “of a type entirely different from actions which [B] foresaw". This reflected the language of the certified question in what has been the leading case on the topic at least so far as the crime of murder is concerned, namely English [1999] 1 AC 1, 17C, where the expression used was “fundamentally different”.

81.  Accordingly, the issue on this appeal resolves itself into whether, on the bare facts described in para 76, the difference between B’s understanding of A’s intention and A’s actual intention could entitle a jury to conclude that A’s action “departed completely", or was “entirely” or “fundamentally” different, from what B foresaw, and therefore justified B being acquitted of V’s murder.

82.  The effect of this House’s decision in Cunningham [1982] AC 566 is that the law of murder is indifferent to whether a defendant intends to kill or to cause serious injury. That seems to suggests that, as a matter of legal consistency, an intention to kill, at least without more, should not be regarded as a “complete departure", or as being “entirely” or “fundamentally” different, from an intention to cause serious injury. In other words, given the definition of murder as established in Cunningham [1982] AC 566, it appears to me that it would be somewhat illogical if B could avoid liability for murder merely because he believed that A intended to cause really serious injury to V rather than to kill him.

83.  Of course, as has been recognised in more than one case (for instance. by Lord Hutton in Powell [1999] 1 AC 1, 25F and by Lord Parker in Morris [1968] 2 QB 110, 120D), the criminal law cannot always be strictly logical: practicality and efficacy are also important. Nonetheless, the fact that a particular result is consistent with principle is plainly an important factor. Further, the result also appears consistent with the formulation of Lord Lane CJ in R v Hyde [1991] 1 QB 134, 139C-E, where he referred to B realising that A “may kill or intentionally inflict serious injury” (although the precise point at issue here was not there in contention or under consideration).

84.  The result does not appear to me to be unfair to defendants in the position of B, at least in the normal run of cases. If, as in the present case, B joins with other parties in a violent attack which he appreciates involves one or more of those parties intending to cause serious injury to V and V is killed, B is guilty of murder because, in a sense, he is to be treated as assuming the risk of liability for murder if V is killed. To put the point another way, in such a case, the law may be seen as effectively treating B as appreciating that V may be killed as a result of the attack. At least in the absence of special circumstances it appears to me that it reasonably follows that, if B foresees that A intends to cause V serious injury, he ought to appreciate that matters may escalate so that A may move from intending serious harm to V to intending to kill him. There is, in my view, nothing surprising or inappropriate that this eventuality should also be within the scope of the risk which B is deemed by the criminal law to accept by taking part in such an attack.

85.  In a case such as the present, involving a concerted and relatively unplanned vicious attack., I consider that it would be unacceptable to most law-abiding people if B escaped conviction for murder, when he appreciated that A had a knife which would probably be used with a view to causing serious injury to V, purely because the jury thought it possible that, in the heat of the moment, A may have used the knife on V with the intention of killing, rather than seriously injuring, him. The essence of the matter is that B joined with A in attacking V with a view to causing V serious injury, and B knew that P had a knife for that purpose. It would seem unrealistic and over-indulgent to B, at least in the absence of other facts, if he were acquitted of murder on the ground that a jury concludes that he may have thought that A was bent on causing V serious injury (with the obvious risk of death) rather than killing him.

86.  In my view, this conclusion also has the merit of simplicity and clarity, which is plainly desirable, both in itself and from the standpoint of a jury. Where A and B (often with others) have embarked on a joint enterprise of a criminal nature, the issues for the jury will often be demanding, in terms of number, complexity and inter-relationship, as is well demonstrated by the extract from the summing-up in this case, set out in para 18 of Lord Bingham’s opinion. It would be unfortunate if juries in such trials also had routinely to consider precisely what B thought about A’s intentions and precisely what A’s intentions were at the time V was killed, and, if they differed, whether A’s intention “completely departed” from what B had foreseen or intended. I agree with what Lord Bingham and Lord Brown say in this connection in para 25 and para 70 respectively.

87.  Accordingly, in the absence of special factors, and subject to any good reason to the contrary, I consider that, even if the primary perpetrator intended to kill the victim, an alleged accessory should not escape a murder conviction simply because he only foresaw or expected that the perpetrator intended to cause serious injury. The mere fact that the perpetrator intended to kill does not render his actions “entirely” or “fundamentally” different from what the alleged accessory foresaw or intended. It follows that, subject to any further arguments persuading me otherwise, I consider that Wakerley J’s summing up in the present case cannot be impugned on this score.

88.  Having reached that conclusion in principle, I now turn to consider whether, in the light of the cases to which your Lordships have been taken, there are or should be exceptions to this conclusion, and, indeed, whether such exceptions justify reconsidering that conclusion. The cases where B did not foresee or intend serious bodily harm to the victim can be put on one side: they are irrelevant for present purposes. As to the other cases, they establish one clear and significant class of exception to the conclusion I have reached, namely where the weapon used by A is different from and more lethal than any weapon whose use was foreseen by B. The obvious and leading example is English [1999] 1 AC 1, the facts of which have been examined by Lord Bingham and Lord Brown.

89.  The fact that A uses a different and more lethal weapon to attack V from that foreseen by B is, as a matter of ordinary language and common sense capable of rendering the attack “entirely” or “fundamentally” differently from what was foreseen by B. Of course, it all depends on the facts of the particular case, and, at least normally, resolution of the issue would be appropriately left to the jury. But that is not inconsistent with the conclusion that the fact that A intended to kill, whereas B believed that he only intended to cause serious injury, cannot, without more, render A’s attack “entirely” or “fundamentally” different from what was foreseen by B.

90.  Unlike the issue in the present case, the issue in a case such as English [1999] 1 AC 1 does not cut across the definition of murder. Also unlike the issue in the present case, the issue in English [1999] 1 AC 1 requires consideration of the physical means of attack, not of the precise state of mind of A. In addition, it would, I think, rarely, if ever, lead to particular difficulties for juries if they had to decide whether the use of the weapon may have been unforeseen by B, and, if so, whether its use “completely departed", or was “entirely” or “fundamentally” different, from what he had foreseen. Nor, I think, would a verdict against B of not guilty of murder, on appropriate facts in such a case, be thought to be inappropriate by most law-abiding citizens.

91.  Greater difficulties arise, however, from the reasoning and decision in R v Gamble and Others [1989] NI 268 as discussed by Lord Hutton in English [1999] 1 AC 1, 28G - 30B. The facts of Gamble [1989] NI 268 are set out in para 14 of Lord Bingham’s opinion. The victim in that case was killed by cutting his throat, whereas the two relevant defendants, Douglas and McKee, apparently foresaw, indeed intended, that he should be “kneecapped” and beaten. In those circumstances, the Judge sitting without a jury, Carswell J, held they were not guilty of murder.

92.  At least at first sight, this decision can be justified on the classic ground that the primary perpetrators, Gamble and Boyd, “completely departed” from the actions foreseen and intended by Douglas and Mckee, because of the difference between the weapon actually used, a knife, and the weapons foreseen and intended, namely a gun and (presumably) fists. However, the actions foreseen and intended by Douglas and McKee plainly involved serious injury to the victim, and it is hard to say that a knife is more lethal than a gun. Indeed the two weapons were specifically equated in terms of potential lethalness by Lord Hutton in English [1999] 1 AC 1, 30F-G, and in the passage cited by Lord Brown from R v Smith (Wesley) [1963] 1 WLR 1200, 1206-7, it was, to my mind correctly, implied that by using “a loaded revolver” A could (not, I emphasise, would) render the murder of V “outside the scope of the concerted action", if B foresaw only the use of a knife. Accordingly, while the actual decision in Gamble [1989] NI 268 can be justified in theory, it seems to me to have been a rather generous outcome for Douglas and McKee on the facts

93.  However, Gamble [1989] NI 268 was expressly said by Lord Hutton to have been rightly decided - see [1999] 1 AC 1, 29H. Although I am very doubtful about the point, it may just be that the difference in weapon can justify the acquittals in Gamble [1989] NI 268 because of the very limited and specific nature of the use of the gun foreseen by Douglas and McKee, namely to kneecap the victim. This analysis seems to me consistent with that proffered by Lord Rodger in paras 39 and 40 Having said that, it is only right to add that, despite its approval in English [1999] 1 AC 1, I share the strong reservations about the reasoning and outcome in Gamble [1989] NI 268 expressed by Lords Scott and Brown.

94.  In that connection, I note that in Morris [1966] 2 QB 110, 120B-C, Lord Parker suggested that it would “revolt the conscience of people today” if A were convicted of manslaughter in circumstances where P “has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to [the] common design could suspect". That was an adverse comment on Salisbury’s case (1553) 1 Plow 100. Insofar as it is relevant to the point at issue here, I think it goes no further than this: if B believed that he was accompanying A to assault V by “pistol whipping” him, and, to that end, A, to B’s knowledge, had a gun, B may very well have a defence to murder if, unanticipated by him, A loaded the gun and shot V dead with it. B’s case would be that he foresaw the use of the weapon, but as a bludgeon, not as a source of bullets. Although it may be a matter for the jury, I would have thought that, on such facts, there might be a strong case for saying that A had “completely departed” from what B had understood and foreseen. In truth, it would be an example of A using a different and more lethal weapon than that foreseen by B.

95.  Beyond that, I do not consider that Morris [1966] 2 QB 110 assists in the present context, even though it was relied on by Lord Hutton in English [1999] 1 AC 1, 28E-F. First, Lord Parker’s observations were made in connection with manslaughter, not murder: Morris [1966] 2 QB 110 was not a case where the defendant was said to have the mens rea appropriate for murder. Secondly, in the passage at [1966] 2 QB 110, 120B-C, where Lord Parker referred to A “us[ing] a weapon and act[ing] in a way which [B] could [not] suspect", the use of the conjunction “and” suggests that, if anything, a significant difference from the weapon foreseen by B was a necessary ingredient of the defence sought to be raised in the present case.

96.  The contention that the acquittal of Douglas and McKee in Gamble [1989] NI 268 could be justified even if the victim had been killed by being shot in the head appears to have been left open by Lord Hutton in English [1999] 1 AC 1, 30A-B. However, it seems to me that if that were right, it would be hard to justify the conclusion I have reached. The contention could only be reconciled with my conclusion on the basis of the following argument. Where A and B had an expressly agreed and limited purpose (in Gamble [1989] NI 268, kneecapping), then a deviation by A, albeit with the contemplated weapon, from that purpose (in Gamble [1989] NI 268, shooting in the head) can be said to “depart completely", or to render the action “entirely” or “fundamentally” different, from what was foreseen or contemplated by B.

97.  Having initially been attracted by that argument, I have reached the conclusion that it can and should be rejected. It can be rejected because, as I have mentioned, the point appears to have been left open in English [1999] 1 AC 1, having been described as “debatable” by Lord Hutton. It was unnecessary for it to be decided in that case, but I consider that it would be wrong not to face up to it in this case.

98.  I turn to the reasons why the argument should be rejected. Where B joins with A in what he intends to be a kneecapping of V, he foresees, indeed intends, that V should be seriously injured with a gun. The “departure” he relies on is A’s intention to kill with the gun combined with the fact that A aims at V’s head rather than at his knees. On the face of it, that appears to be no more than a specific example of the type of case summarised in para 76, and not sensibly distinguishable from the facts as they are said to be by the appellants in the present case. Here, the jury must have found that the appellants foresaw that Tyrone Clarke would be attacked with a knife with the intention of seriously injuring him, and the alleged “departure” is said to be that the principal perpetrator intended to kill him, and that that is demonstrated by the nature of the wounds inflicted as described by Lord Bingham in para 3. Such reliance on the nature of the wounds appears to be no different in principle from the reliance on the shooting to the head rather than the knees in the kneecapping case.

99.  The point of distinction is said to be that, in Gamble [1989] NI 268, what was foreseen by B resulted from an expressly agreed, specific and limited, if very violent, attack, whereas here there was no such express agreement. But all such an agreement does is to provide an outward justification or explanation for B’s state of mind. It does not alter the facts that he foresaw A causing serious injury to V with a gun, and that A, intending to kill V, then did so with the gun.

100.  To my mind, the conclusion that B is guilty of murder on facts such as those in this case and on facts such as those in Gamble [1989] NI 268 (on the assumption that V was killed by shooting him in the head) can be justified on the basis of policy and principle. As to the principle, I have already dealt with it: given that intention to cause serious injury is sufficient mens rea for murder, if B foresaw that serious injury will be caused to V by A using a particular weapon, he should not escape a murder conviction merely because A intended (or may have intended) to kill V when he attacked him with that very weapon.

101.  As for policy, as already mentioned, it seems to me that the established principle is that, by embarking on a venture which he foresees involves A attacking V with a particular weapon with intent to injure him seriously, B is effectively treated as having accepted the risk of criminal responsibility for V’s death as a result of A’s attack on V with that weapon. If A remains motivated by an intention to cause V serious injury, B will be guilty of murder if A’s attack unexpectedly or unintentionally leads to V’s death, as a result of A’s mistake, mischance, A’s excessive violence, or V’s unexpected vulnerability. In those circumstances, it seems far from illogical to conclude that B should be guilty of murder if V is killed as a result of A’s intentions moving from causing V serious injury to killing V. Indeed, it appears to me to be a consistent and principled conclusion, as well as a practical one.

102.  It does not seem to me that the cases to which your Lordships have been referred suggest that there is any other possible exception to, or difficulty with, the conclusion I have reached in principle over and above those I have discussed in paras 87 to 101. It is possible that the facts of a future case could give rise to a further arguable exception, (as was recognised in Uddin [1999] QB 431, 441B-D), namely a ground different from a change in the weapon which may justify a finding of “entire” or “fundamental” difference. If such a case arises, it will have to be dealt with on its merits, but, at least as at present advised, I cannot see how it would undermine the conclusion I have reached.

103.  For the reasons I have tried to explain, in a case such as that summarised in para 76, B would normally be guilty of murder, in view of the decision in Cunningham [1982] AC 566 and of the law relating to accessories In other words, it appears to me that the conclusion I have reached flows from the fact that an intention to cause serious bodily injury is sufficient mens rea to found liability for murder, and from the fact that in cases such as these involving accessory liability, the touchstone is one of foresight, as Lord Bingham puts it in para 11. It is a matter for the legislature, not the courts, to decide whether to change this, or any other, aspect of the law relating to murder or accessories. As to the former, there is an impressive report from the Law Commission - Report 304, Murder, Manslaughter and Infanticide (2006) HC. 30.