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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Yemoh & Ors v R. [2009] EWCA Crim 930 (22 May 2009) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2009/930.html Cite as: [2009] EWCA Crim 930 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM the Crown Court sitting at the Central Criminal Court
His Honour Judge Moss QC
T20070052/T20070061/T20070106
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ETHERTON
and
MR JUSTICE CRANSTON
____________________
KURTIS YEMOH; BR; JB; MW; AND TD |
Appellants |
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- and - |
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Regina |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
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Tel No: 020 7404 1400, Fax No: 020 7404 1424
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Mr M Turner QC and Mr R Ledgister for BR
Mr Z Khan for JB
Mr C Sallon QC for MW
Mr D Spens QC for D
Sir Allan Green QC and Mr J W Hallam for The Crown
Hearing date: 15 May 2009
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Crown Copyright ©
LORD JUSTICE HOOPER:
Yemoh 16, 5'8"
BR, 13, 5'9"
JB 14, 5'3"
MW 13, 5'10"
TD 15, 5'8"
i) Yemoh, convicted of manslaughter, Mr Jeremy Benson QC;
ii) BR, convicted of murder, Mr Michael Turner QC, leading Mr Roy Ledgister.
iii) JB, convicted of manslaughter, Mr Zarif Khan;
iv) MW, convicted of manslaughter, Mr Christopher Sallon QC;
v) TD, convicted of murder, Mr David Spens QC.
The respondent is represented by Sir Allan Green QC, leading Mr Jacob Hallam.
PC Townsend told you of an occasion on 27th November 2006 when BR was found to be in possession of a four inch blade folding knife which he was carrying in his sock. On 10th November 2007, it is said by Emmanuel Faradoye, then a member of the Hammersmith and Fulham Youth Offending Team, that BR admitted to him that he sometimes carried a knife in his waistband for his own protection.
The evidence- in outline
So far as a Stanley knife is concerned as the candidate for the wound, they have a brittle blade and a narrow breadth and it could well have snapped off as it cut into the breastbone, if it did, and could result in a slim wound to the skin. He said, "I tend to exclude a Stanley knife but I cannot completely rule it out."
There was a 0.9 centimetre stab wound on the back of the left middle finger, which penetrated through the skin and the fat of the finger but not the bone. On the knuckle of the left index finger was a similarly orientated 0.9 centimetre incised wound, penetrating skin and fat. There was a linear incised wound over the first segment of the left ring finger, 0.9 centimetres again, of limited penetration. On the back of the left hand, on the line of the left ring finger, a linear 1.2 centimetre incised wound. Adjacent to this, and beneath the web space between the left ring and little finger, was a 1.7 centimetre incised wound. There was a linear scratch over the base of the left little finger, measuring 2.5 centimetres and there was a scratch present on the sole of the right foot on the side of the fifth toe. He described the injuries to the hand as being classic defence type injuries.
There was no evidence on the body of a significant protracted physical assault, nor was there any evidence of any form of marking from blows from the shod foot upon the body.
There are two main contenders for the role of principal. TD. He was seen running with a Stanley knife. ... As to BR it may be that he stabbed Kodjo further up Hammersmith Grove but Mrs Quinn's description does not fit him. There are difficulties in the way of being sure about either of them, so consider if they are secondary parties. ... Even if you cannot be sure that it was TD or BR they were at least secondary parties.
The evidence- in more detail
She was cycling up Hammersmith Grove towards Shepherds Bush when she noticed people, school children, she said, in the road ahead of her on the right-hand side. She had just passed the Grove public house just past Adie Road [South of the zebra crossing] "The group were running ahead of me on both sides of the road. They were converging about 20 metres away to my right. I would say there were 25 to 30 people, maybe more, a lot of school children running in the road ahead of me, rushing and shouting, a very excited group of young people spread out on the road going north."
…
"When I saw the group I got off my bike. I wondered what was happening. I was a bit alarmed. As between boys and girls, there were quite a few girls. It was pretty equal, but I cannot be sure of that. I heard a girl's voice, 'They're going to stab him.'"
She agreed in cross-examination by Mr Turner that what she said she heard was, "He's going to stab him," and when cross-examined on behalf of MW by Mr Sallon, she agreed that she had said in her statement that it was said more than once, and that her statement was accurate. Then seconds later, back to her account, "'They,' or 'He's stabbed him.' I think it was, 'He's stabbed him,' she said. I thought it was the same voice. I immediately put down my bike and ran into the deli part of Chez Christophe [very close to the zebra crossing] and told them to call an ambulance."
When I came out of the deli, I went and picked up my bike and was just about to proceed towards Shepherds Bush when I became aware of a boy, two boys, coming towards me. I was particularly struck by the bigger of them. I was still outside the deli. The two boys were on the pavement to my left. They came from the Shepherds Bush end of Hammersmith Grove, going south, and we happened to converge at the same point.
"I took the bigger boy to be black Caribbean or black African. He was 15 or 16 years old." She said, "I am a teacher in a secondary school, mainly 11 to 16 years old. He was 5 foot 8 to 5 foot 9, quite a tall, well-built boy. I think he had short hair, quite close cropped. I think all the young people were wearing black, as if a uniform. In my statement I said dark clothing, which could well have been a school uniform. I thought he may have been wearing a scarf, but I cannot say for sure, and it is not in my statement, but I did say in my statement that he may have been wearing a neck chain."
Cross-examined by Mr Spens, she said, "I think he did have a gold chain. I have an inkling there was a football scarf, I can't swear to that, I might be mistaken. His face made an impact," she said. "He was walking tall as if he was filled with adrenaline. A knife was held at arm's length, in a gesture of triumph, really. His eyes were very wide. It could have been to do with his height and state of excitement. The knife I thought was in his right hand, I am almost sure. The blade was fairly long, perhaps 5 inches, a fairly long, slender knife, a shaped knife, quite slim, it had a shape to it, probably a bit tapered. I thought at the time it had a black handle. I didn't see much of the handle. It was covered in blood right down to the handle, the length of the blade. He was holding it, his arm was straight, straight out in front of him, the blade pointing to the sky. His posture was firm and tense, as a soldier might be tense. There was muscular tension there, it was not through nervousness. He looked psyched up, an excited, very intense expression. I rather instinctively spoke without thinking, I said, 'What have you done?' We were face to face. He answered, 'Shut your mouth.' His manner was very intense, very full on, quite clear and loud and aggressive. I said, 'Bastard,' and that was it. He carried on walking up Hammersmith Grove. I picked up my bike and went on my way. I didn't follow his movements much."
…
When her statement was put to her by Mr Spens, "I was only in the deli for seconds. I came out and picked up my bike. I then continued to walk north. I saw several of the groups scattering and running south down the Grove, but some of whom could have gone north. I had just pushed my bike into the road when I saw a young West Indian boy about 6 foot in front of me." She said, "Yes, I agree, it jogged my memory. When I heard he stabbed him, I can't say whether the group were nearer leaving the scene," but she agreed with Mr Spens that when she heard, "He's going to stab him," and, "He's stabbed him," they were in the area between the crossing and number 156.
Cross-examined by Mr Turner, she said, "The boy was dark skinned and had closely cropped hair tight to his head. I made an assumption of dark clothing, as all the young people were. I came quite close to the boy with the knife, I think came within a couple of metres of me. He [that is the taller boy] had very staring eyes. The smaller boy was the same nationality and black. He appeared younger. It could be because he was much smaller. I had the impression of a younger boy. He was next to the boy with the knife. He had a dog on a lead, a small dog. I think it was a Staffordshire terrier, a stocky Staff on a lead. I thought he was a young dog. He was all together more slight, a much smaller boy, I would say a very slight build, shorter and fatter than the boy with the knife, a roundish innocent face. He could have been younger."
Cross-examined by Mr Turner, "I think he was head and shoulders smaller than the bigger boy." She went on, "I saw the injured boy and I felt shocked and quite angry. I was angry and upset and surprised by the incident and that it should happen at all. It was unusual for the area."
Detective Constable Jason Cayley was with DC Smith in a rented van. He, Cayley, was the driver. They stopped behind Mr Maloney's BMW. In fact, Mr Cayley pulled over to the nearside to allow vehicles to come past the other way, as he thought he would have to, and he leaned across and saw, "Two heads of two black guys who looked as if they were wrestling face to face. DC Smith got out to see what was going on. I turned off the engine and went to the front of the BMW. Mr Malony said to me, 'He's been stabbed,' and I saw a young man lying in the road, face down, feet towards parked cars. There was a separate pool of blood near his feet. He was moaning and breathing deeply. Another young man, who was black, about 13, was standing nearby on the phone talking to the ambulance controller. I took the phone off him and spoke to the controller. I noticed a young black girl in an hysterical state. I could see the young man getting weaker. I vaguely remember people running away in the distance."
Cross-examined by Mr Turner [on behalf of BR], he said, "I never saw the victim being attacked on the ground."
Now the young black man aged about 13 standing nearby on the phone talking to the ambulance controller I think by common consent must have been Marcus Wiggins, and of course there is an issue as to whether he was there and how long he remained there. It is for you to consider.
DC Richard Smith was the companion of DC Cayley. As their vehicle came to a stop, he said, "I looked ahead on the nearside and I saw some sort of disagreement in the road. It looked like a bit of a fight. It concerned," he said, "Six to ten black males and a black male victim. The victim was on his feet. He fell to the floor. I saw two of the males kick him several times while on the floor, with intent and violence. There was a male slightly lighter skinned who shouted at the male on the floor.
"I got out of the van and took the police radio. The youths were making off from the motionless victim who was lying in the road. They jogged away, not sprinted, and at first I ran after them.
"There was a large amount of blood on and around the victim. I radioed for assistance and then I indicated the direction of the young men who had run away to an unmarked police car. I felt for a pulse and was unable to find one."
Cross-examined by Mr Turner, he said, "I saw two males give him a violent kicking and I would envisage there would have been some injury from it. I could see perfectly well from my position in the vehicle. I don't recall the male being between two parked cars, but I agree that the driver of the BMW had a better vantage point than me, but I know what I saw and I know that I could see what happened."
Well, Mr Sallon cross-examined this witness very firmly indeed and put this to him, "Your evidence is a way of implicating as many people in this alleged murder as you can. It simply did not happen." The witness did not respond to that suggestion.
The presence of a policeman on the jury made the trial unfair
I think it is right that I should report to counsel, through you, that earlier on in this trial, it was discovered that one member of this jury is a serving police officer; and we discovered that quite by chance.
It is a member of the jury who is as it seems to me to be the foreman, who is sitting in position number one and who has sat in position number one throughout the trial. The court staff discovered early in the trial, when it started, that he was a police officer because he told Mrs Miller, who is the clerk (inaudible) that he thought he had a court appointment to go to, explaining that he was a serving police officer. She immediately told me about it, obviously. I caused the enquiry to be made by another clerk, who was then (inaudible), as to where he served and details of his service and so forth. I was told that he had told the Court Clerk that he is a Detective Sergeant at Wembley, nothing to do with the Hammersmith area at all and that he knew nothing about this case, those were the questions that were asked of him.
Now, on that basis, it seemed to me there was no reason to report that to counsel, for obvious reasons, and so I did not; but I thought it right that counsel should know about that now particularly in view of the authorities, as it is today, in The Times [Khan]. I do it really so that counsel are fully informed and to reassure counsel, and I hope it does, that proper enquiries were made at the time. It seemed to me that there was no reason for any alarm, that was the decision that I made, but I simply say it so that you all know about it.
Sir Allan, I should have said, ... that one of the matters that I had well in mind was that in this case any police evidence is really less than contentious --
SIR ALLAN GREEN: Yes.
JUDGE MOSS: -- and that was a matter that I had well in mind --
SIR ALLAN GREEN: My Lord, yes.
JUDGE MOSS: -- so far as this case is concerned.
SIR ALLAN GREEN: Yes.
JUDGE MOSS: Had it been otherwise, I would have reported the matter immediately.
I am bound to say that if he had declared himself at the time when the jurors were being empanelled, and if the same enquiries had been made and there would have been no other enquiries as to his position there -- of course, I would have heard submissions on it if necessary -- but so far as I can see there would have been no reason why he should not serve.
MR TURNER: My Lord, can I be utterly frank?
JUDGE MOSS: Yes.
MR TURNER: And tell your Lordship what would have been my observations at the time --
JUDGE MOSS: Yes.
MR TURNER: -- had we known. We would have made application to your Lordship that it would have been inappropriate for him to serve on the jury for these reasons: firstly, so far as our case is concerned, we would have said that there is a very strong attack on Detective Constable Smith and we say that what he said he saw just could not have happened on any view.
JUDGE MOSS: Yes.
MR TURNER: That is the first point. Secondly, we would have been concerned about his position as a London police officer. He is not a million miles away from Hammersmith. I understand that he served in the Harlesden district --
JUDGE MOSS: Wembley area.
MR TURNER: Wembley area, still not a million miles away. Thirdly, what really would have concerned us in the context of this is that there is an undertone of youth gang violence. This will not have been something that Wembley or any other part of London is immune to. That you have on the jury someone who potentially will say, "well, I know what these gangs know and don't know. I know what they get up to," and which would have been particularly acute in relation to this because this is a joint enterprise case.
JUDGE MOSS: Yes.
MR TURNER: One of the things that the jury will have to decide for those who did not have weapons, is whether they had knowledge of anyone else. We would have been particularly concerned if there is someone purporting to have specialist knowledge about how these boys club together and operate. What one can simply imagine in common sense is that if anyone has such knowledge passing in common:
"Well, of course, they know, they all know that each other is armed, that is how they go about London."
JUDGE MOSS: One might say the same of a number of professions. I mean I happen to know, there is no reason why anybody else should have known, that another of the jurors is an inner city middle school teacher, you might say the same about her, (inaudible) but it would be absurd to suggest that she could not serve on the jury.
... the jury are entitled to hear what he says, and in those circumstances I decline to exclude it. It is plainly admissible. There is no reason to exclude it.
May it please your Lordship, I do not go as far as joining that application but you may recall that on day 22 of this trial, Mr Benson made an application under section 78 to exclude a particular remark.
JUDGE MOSS: The remark made on charge.
MISS DEMPSTER: The fact of the police remark. I can say I think with some certainty that had we known of the membership of the jury, at least of that juror, we would have weaved that into that application; that in this case that may be a particularly offensive remark for that juror to hear. Secondly, that was not a piece of evidence, like many in this case, that went without a certain reaction because there was a twin reaction. I am told there was one from the dock of laughter, to put it bluntly, and second from the jury, shall I use the word, disgust, and that is entirely understandable given the nature of the remark.
JUDGE MOSS: Funnily enough, I would have thought that if there was any reaction from the jury it would be unlikely to come from the police officer whom I dare say is only the (inaudible).
You would have been in the position to use that information in support of your application to exclude that evidence and your application would, even if you had included that matter, been unsuccessful.
Application is made to discharge this juror by a number of learned counsel on behalf of some of the defendants on the basis of the information that I gave the court this morning. The application is refused. If I had known at the time of the profession of this particular juror, who would have been a potential juror then, even had I heard argument then, as of course I would have been prepared to, along the lines of that which is now advanced principally by Mr Turner I would not have stood down that juror, or the potential juror, but in the circumstances of this case I would have allowed him to serve.
Certainly, I make it plain that when I did receive the information of his profession and had the enquiries made that I did, I considered two things: first, whether it was a matter that I ought to report to counsel and I decided that there was no need and so I did not. Secondly, whether in considering that, there would be any proper applications made to discharge that juror and I decided that (inaudible). It is in those circumstances that the matter did not come to be reported until today. The application for those reasons is refused.
Let me mention some of your responsibilities as jurors during this trial:
It is your duty to try this case on the evidence, and not to be influenced by any external matters (such as media reports whether before or during the trial, if there are any).
The evidence is what you hear in court and nowhere else; and it is for you, the jury – and no one else – to assess it.
For these reasons please do not speak to anybody outside the jury -that includes your family and friends - about the case.
In addition, please do not try to obtain information elsewhere (e.g. on the internet) about the case in general or about other matters that are raised during the trial. The reason for this is that if you were, unknown to the prosecution and defence, to research your own sources of information they would not be in a position to comment on or otherwise deal with it and that would not be fair.
All 12 of you are responsible for reaching a verdict in this case. Therefore, you should only discuss the case amongst yourselves when you are all present in the privacy of your jury room. So please do not discuss the case in small groups when the others are not present.
Very rarely something may happen (either outside your jury room, e.g. someone who is not on the jury may apparently try to speak to you about the case, or something may happen in the jury room itself) which causes you real concern.
If any of you has such a concern, please inform me about it at once discreetly in a written note via the court clerk or the usher. Do not leave it until the case is over, because it might then be impossible to put matters right.
25. In the case of the first appellant [Abdroikov], it was unfortunate that the identity of the officer became known at such a late stage in the trial, and on very short notice to the judge and defence counsel. But had the matter been ventilated at the outset of the trial, it is difficult to see what argument defence counsel could have urged other than the general undesirability of police officers serving on juries, a difficult argument to advance in face of the parliamentary enactment. It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant, and it makes no difference that the officer was the foreman of the jury. In the event, confronted with this question at very short notice, defence counsel raised no objection. I conclude, not without unease, that having regard to the parliamentary enactment the Court of Appeal reached the right conclusion in this case, and I would dismiss the appeal.
The second appellant's case is different. Here, there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial. It cannot be supposed that Parliament intended to infringe the rule in the Sussex Justices case, still less to do so without express language. I would allow this appeal, and quash the second appellant's conviction.
I agree that, for the reasons given by my noble and learned friend, Lord Bingham of Cornhill, the appeal of Abdroikov should be dismissed and the appeals of Green [second appellant] and Williamson [third appellant, in which the juror was a member of the CPS] allowed. I add a few words only because I have not found this an easy case.
Parliament obviously intended that police officers should be eligible to serve on juries in some cases (although they may well have contemplated a rather closer inquiry into the circumstances of each individual police juror than in fact takes place).
53. In the Green case there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court.
54. The Abdroikov case was tried at the Old Bailey, which hears cases from all over London and sometimes further afield. There was no particular link between the court and the station where the police juror served. No important issue turned on a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they all served in the Metropolitan Police. It would be possible, perhaps, to conclude that Parliament had intended that no police officer should serve on a jury involving police witnesses from the same police force as that in which he served. Given the independence of each police force, that would have the attraction of consistency with the approach adopted earlier in relation to the CPS and other prosecuting bodies. With some hesitation, however, but because of the greater distance between the police and the prosecution process, I feel able to agree with my noble and learned friend, Lord Bingham of Cornhill, that there is not sufficient to raise the appearance of bias in this case.
83. With regard to the case of the second appellant, as Lord Bingham and Baroness Hale point out in their paragraphs 26 and 53, the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as, and was as a result the "brother officer" of, the policeman on the jury. Further, the juror was posted to a station which committed its cases to the Crown Court of trial - a factor which Metropolitan Police Notice 20-2004 Item 1 identified as one to be avoided (see paragraph 11 of Lord Bingham's opinion). Absent such considerations, I do not agree that it follows automatically that a police officer is disqualified as a juror, even in a case of significant conflict of evidence between a police witness and a defendant.
We have not found it easy to deduce on the part of the majority of the Committee clear principles that apply where a juror is a police officer. One principle is clear however. All five held that the fact that a juror is a police officer will not, of itself, disqualify the juror on the ground of want of impartiality. That decision inevitably followed from the fact that Parliament has made police officers eligible to serve on juries unless it were suggested, which it was not, that this provision is not compatible with Article 6 of the Convention.
Our conclusion is, as already expressed, that the fact that a police juror may seem likely to favour the evidence of a fellow police officer will not, automatically, lead to the appearance that he favours the prosecution. If the police evidence is not challenged or does not form an important part of the prosecution case, we do not consider that it will normally do so. None the less it will be appropriate to quash the conviction if, but only if, the effect of the juror's partiality towards a brother officer puts in doubt the safety of the conviction and thus renders the trial unfair.
10. Where an impartial juror is shown to have had reason to favour a particular witness, this will not necessarily result in the quashing of a conviction. It will only do so if this has rendered the trial unfair, or given it an appearance of unfairness. To decide this it is necessary to consider two questions:
i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so
ii) Would the fair minded observer consider that this may have affected the outcome of the trial?
If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.
In this case you have first to consider whether you can be sure who was the person who deliberately stabbed Kodjo, that is fatally stabbed Kodjo, and so caused his death. If you are satisfied so that you are sure that you can identify that person, then that person will be guilty of murder, provided you are sure that the other ingredients of murder, as I have directed you, are proved, namely that that person acted deliberately and unlawfully and intended at the time either to kill his victim or to cause him really serious bodily harm. But in addition, any other person who took part in the fatal attack, and I underline the word fatal, which you may want to write in on the document which you already have, any other person who took part in the fatal attack upon Kodjo may also be guilty of murder but only if first he knew that the knifeman had a knife or other sharp implement and, secondly, he shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part. If, on the other hand, the prosecution proves against such a person that he participated in that attack and that when he did so, first he knew that the knifeman had a knife or other sharp implement and intended to use it to cause some injury or harm, but falling short of killing or causing really serious bodily harm, or he realised that that person might use the weapon to cause some injury, falling short of really serious harm, then such a person is guilty of manslaughter if the knifeman killed. (Emphasis added)
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.
If a second weapon [i.e. not the Stanley knife] was produced unknown to the others (or unknown to the person whose case you are considering) and used in a way that was never contemplated then they would not be guilty of murder or manslaughter.
...
Those injuries and the defensive injuries were inflicted by a surprise weapon- a sharp slim bladed knife only seen by Mrs Quinn after the actual stabbing had taken place. Such a weapon is very different in character from a Stanley Knife.
"there will be liability for murder on the part of the secondary party if he foresees the possibility that the other party in the criminal venture will cause really serious harm by kicking or striking a blow with a wooden post, but the other party suddenly produces a knife or a gun, which the secondary party did not know he was carrying, and kills the victim with it."
a) intended that the victim would be killed (cf. the trial judge's direction in this case which was more favourable to the defendants but had the great advantage of being easier to follow);
b) or (so it was thought ) realised that one of the attackers might kill V with intent to kill him.
See Rahman, CACD, para, 68.
68. 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).
a) realised that one of the attackers might kill with intent to kill or cause really serious bodily harm; or
b) intended that really serious bodily harm would be caused; or
c) realised that one of the attackers might cause really serious bodily harm with intent to cause such harm.
... having regard to the differing circumstances in which the issue may arise I think it undesirable to seek to formulate a more precise answer to the question in case such an answer might appear to prescribe too rigid a formula for use by trial judges. However I would wish to make this observation: 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. (Underlining added)
Finally in this regard, if you were to conclude that it might be the case that the attacker or attackers, whoever it was, acted not as part of any agreement or plan, but separately for reasons of their own, or went beyond anything that the others agreed or realised he or they might do, then the question of joint responsibility for the death of the deceased would not arise at all.