West Law Report


Posted in House of Lords (case), Westlaw Reports by mrkooenglish on July 16, 2008

Last Updated: 3:21PM BST 09/07/2008
House of Lords

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury

July 2, 2008

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Criminal liability – Direct participation – Intention – Joint enterprise – Jury directions – Knives – Mens rea – Murder – Intention of associates to joint enterprise – Fundamental difference test


The appellants (R) appealed against a decision ([2007] EWCA Crim 342, [2007] 1 WLR 2191) upholding their convictions for the murder of a young man (V). R were part of a group of men which chased and attacked V and his friends with weapons including baseball bats, metal bars and knives. V died from two deep knife wounds in his back. There was no evidence that R inflicted the fatal injuries; the participant who did probably escaped arrest. R were convicted for their part in the joint enterprise. The question posed for the opinion of the House of Lords was whether, if in the course of a joint enterprise to inflict unlawful violence a principal party killed with an intention to kill which was unknown to and unforeseen by a secondary party, the principal’s intention was 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.


Whether a defendant involved in a joint enterprise which resulted in murder only had to foresee what his associate might do, not what he specifically intended to do, to be guilty of murder as an accessory.

HELD (appeals dismissed)

The principle of joint enterprise was illustrated by the following example: if B realised (without agreeing to such conduct being used) that C might kill or intentionally inflict serious injury, but nevertheless continued to participate with C in the venture, that would amount to a sufficient mental element for B to be guilty of the murder if C, with the requisite intent, killed in the course of the venture, unless: (a) C suddenly produced and used a weapon of which B knew nothing and which was more lethal then any weapon which B contemplated that C or any other participant might be carrying and (b) for that reason C’s act was to be regarded as fundamentally different from anything foreseen by B, R v Powell (Anthony Glassford) [1999] 1 AC 1 HL and R v Hyde (David Charles) [1991] 1 QB 134 CA (Crim Div) applied, Chan Wing Siu v R [1985] AC 168 PC (HK) considered. However, the decision in R. v Gamble and Others [1989] NI 268 was not easily reconcilable with that formulation. The question in the instant case was whether an intention by the primary party to kill must have been known or foreseen by R if R were to be held criminally liable for V’s murder. If that proposition were accepted it would introduce a highly undesirable level of complexity into such cases. It was often difficult for jurors to make a reliable assessment of what a defendant foresaw as likely acts of his associates during fast-moving events. It would be even harder for jurors to judge what a defendant foresaw as the intention with which his associates might perform such acts. It was safer to focus on a 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. In addition, requiring foresight of an associate’s intention to kill would undermine the principle on which the law of murder was based since in the prosecution of a principal offender for murder, it was not necessary for the prosecution to prove whether the defendant intended on the one hand to kill or on the other to cause really serious injury. R 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 was armed with a knife. Obviously, those participants would not have had a knife unless they were prepared to use it in the attack. In the absence of any evidence to the contrary, the jury was entitled to conclude that R must have realised that when they joined in the attack. Killing due to the use of a knife could not be regarded as a complete departure from what R contemplated as being involved in the common design. The answer to both questions posed by the Court of Appeal was therefore no. The Court of Appeal had suggested a series of questions which a trial judge might invite a jury to consider in similar cases. However, there could be no prescriptive formula for directing juries. Having made clear the governing principle, it was for trial judges to choose the terms most apt to enable juries to reach a just decision in the particular case.

Michael Harrison QC and Yunus Valli (instructed by Sharpe Pritchard) for the appellants. Robert Smith QC and Paul Greaney (instructed by Crown Prosecution Service) for the respondents.


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