West Law Report

Test of accessory’s liability for unlawful killing

Posted in House of Lords (case), Times Law Report by mrkooenglish on July 21, 2008

From The TimesJuly 7, 2008

Test of accessory’s liability for unlawful killing
House of Lords

Published July 7, 2008

Regina v Rahman

Regina v Akram

Regina v Amin

Regina v Ali

Before Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury Speeches July 2, 2008 The test of an accessory’s liability for an unlawful killing was his foresight of what the principal might do, not of the intention with which his act might be performed.

The House of Lords dismissed appeals by Islamur Rahman, Kamer Akram, Anjum Nisa Amin and Liaquat Ali from the dismissal by the Court of Appeal, Criminal Division (Lord Justice Hooper, Mr Justice Gibbs and Mr Justice Roderick Evans) ( The Times March 2, 2007; [2007] 1 WLR 219) of their appeals against conviction in Leeds Crown Court (Mr Justice Wakerley and a jury) of murder.

Mr Michael Harrison, QC and Mr Yunus Valli for the appellants; Mr Robert Smith, QC and Mr Paul Greaney for the Crown.

LORD BINGHAM said that on March 4, 2005 the appellants had been convicted of murdering Tyrone Clarke on April 22, 2004. It had not been alleged or proved that any of the appellants had personally struck the blow or blows that had caused the death of the deceased; they had been convicted as accessories or secondary parties to the joint enterprise that had culminated in the death.

Their appeals raised a narrow but significant question on the direction to be given to the jury concerning the liability of an accessory on facts such as those that had arisen.

There had, it seemed, been a history of confrontation between the deceased and some of his friends and a group of Asians. On April 22, the Asian group had been carrying a variety of blunt weapons. The deceased had been caught and attacked.

The police had arrived, and the group had run off, save for two of the appellants who had been arrested. There had been some evidence that one member of the group had been seen with a knife.

The deceased had sustained three knife wounds. One had required severe force and had been the principal injury, from which he had stood no chance of survival. The second had also required severe force and been potentially a fatal wound.

The participant who had inflicted the fatal injuries had probably not been apprehended. The prosecution alleged that the appellants had shared a common intention that serious bodily harm should be inflicted and that each of them had known that weapons such as baseball bats, a scaffolding pole and a knife or knives might be used to do so.

The evidence of each appellant had been 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 had not had a knife and that he had not known or foreseen that anyone else had had one.

The trial judge had given the jury a very detailed and carefully considered direction on joint enterprise as applicable to the case, including: “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 appellants’ main argument was that the stab wound that had caused the deceased’s death had been inflicted with the intention to kill, not merely to cause really serious injury. But the appellants had intended and foreseen no more than the infliction of really serious injury. In consequence, it had been strongly arguable that the principal’s intention to kill, if found by the jury, had taken his action outside the scope of the common design and rendered it fundamentally different from anything that the appellants had foreseen or contemplated. Those were not inferences that the jury would necessarily have drawn, but inferences that, properly directed, they might have drawn. The judge had, however, declined to direct them along those lines, and that had been a misdirection, they submitted, that had deprived them of a chance of acquittal that they should have enjoyed.

In R v Powell (Anthony) ([1999] 1 AC 1) the House of Lords had had to consider the liability of a participant in a joint criminal enterprise when another part in that enterprise was guilty of a crime the commission of which had not been the purpose of the enterprise.

The House had held: (at p21) “… 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.” (at p27) “… 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.”

It was common ground in the present case that the test of an accessory’s liability under the principle in Powell was one of foresight. The crucial divide was: Foresight of what?

The appellants’ answer would include foresight of the principal’s intention. The Crown’s answer was: foresight of what the principal might do. The principal’s undisclosed intention was beside the point. It was his acts that mattered.

The Crown’s submission was consistent with existing authority. The submission of counsel that Lord Hutton had accepted in Powellwas that the secondary party must foresee an act of the type which the principal party committed.

Authority apart, there were two reasons for preferring the Crown’s contention: First, the appellants’ submission would introduce a new and highly undesirable level of complexity. It must often be very hard for jurors in cases such as this to make a reliable assessment of what a defendant had foreseen as likely or possible acts on the part of his associates. It would be even harder, and border on speculation, to judge what a defendant had foreseen as the intention with which they might perform such acts. It was safer to focus on the defendant’s foresight of what an associate might do, an issue to which knowledge of his possession of an obviously lethal weapon such as a gun or knife would usually be very relevant.

Second, to rule that an undisclosed and unforeseen intention to kill on the part of the primary offender might 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, was to subvert the rationale that underlay our law of murder, which was that if a person unlawfully assaulted another with intent to cause him really serious injury, and death resulted, he should be held criminally responsible for that fatality even though he had not intended it.

The Court of Appeal had dismissed the appeals for reasons with which his Lordship agreed. They had tentatively suggested a series of questions that a trial judge might invite a jury to consider in such a case. There was, and 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.

Lord Scott, Lord Rodger, Lord Brown and Lord Neuberger delivered concurring opinions.

Solicitors: Sharpe Pritchard; Crown Prosecution Service, Headquarters (Special Crime Division).


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  1. Bookmarks about Accessory said, on December 14, 2008 at 12:15 am

    […] – bookmarked by 6 members originally found by falkon5 on 2008-11-10 Test of accessory’s liability for unlawful killing […]

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