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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> A & Ors (Joint Enterprise) v R.  EWCA Crim 1622 (15 July 2010)
Cite as:  2 Cr App R 32,  EWCA Crim 1622,  Crim LR 61,  2 WLR 647,  QB 841,  2 Cr App Rep 32
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This judgment is published in redacted form pursuant to an order of the Court made under s 4 (2) Contempt of Court Act 1981. That order will remain in force until further order of the Court. It is contempt of court to publish any of the redacted details.
Lord Justice Hughes
T20087548 T20087105 T20087269 T20087252
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WYN WILLIAMS
MR JUSTICE KING
| A, B, C & D
|- and -
Mr R Carey-Hughes QC and Mr M Dacey (instructed by B K R W) for the
Mr I Goldrein QC and Mr S Lally (instructed by B H Mohammed) for the
Mr R Carey Hughes QC and Mr M Dacey (instructed by Charles Simmons) for the Appellant D
Mr J Higgs and Mr J Polnay (instructed by DPP) for the Crown
Hearing dates : Thursday 17th June 2010
Crown Copyright ©
Lord Justice Hughes :
"he participated in a plan to assault [the deceased] in which he intended to cause him some harm, less than really serious bodily harm, but realised that there was a real risk that one of the others might cause him really serious bodily harm and such harm was caused, and he did not dissociate himself from the plan."
i) it told the jury that a defendant would be guilty if he participated foreseeing that others might cause the deceased grievous bodily harm ('GBH'); it did not speak of foresight of GBH intentionally being done; and
ii) although it was dealing with possible guilt on the basis of joint enterprise, it nowhere required the jury first to be sure that at least one of the assailants (whether identified or not) had committed murder as a principal.
The contention of the appellants is that these two features are fatal to the safety of the conviction. The first submission requires us to consider the true import of the decision of the House of Lords in R v Rahman  UKHL 45;  1 AC 129.
The judge's direction
"It will be necessary, therefore, to decide what, if anything, had been agreed and what a particular participant realised a fellow participant might well do in carrying out the plan."
Thus far there can be no possible complaint.
"Count 1: In relation to the defendant whose case you are considering, are you sure that:
(a) He himself unlawfully assaulted [the deceased] and caused really serious bodily harm, with that intention ? OR
(b) He participated in some way with others in a plan to cause really serious bodily harm to [the deceased] and such harm was caused ? OR
(c) He participated in a plan to assault [the deceased] in which he intended to cause him harm less than really serious bodily harm, but realised that there was a real risk that one of the others might cause him really serious bodily harm, and such harm was caused, and he did not dissociate himself from the plan ?
(d) If you are sure of any of (a), (b) or (c) then that defendant is guilty of murder…."
And the document went on to deal with the alternative count of manslaughter in a similar manner.
"…..but realised that there was a real risk that one of the others might intentionally cause him really serious bodily harm….."
and, secondly, because it should have followed a preliminary requirement that the jury be sure that at least one of the assailants (whether identified or not) killed the deceased with intent to do him GBH.
Common or joint enterprise
i) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals, as for example when three robbers together confront the security men making a cash delivery.
ii) Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a weapon so that D1 can use it in a robbery, or drives D1 to near to the place where the robbery is to be done, and/or waits around the corner as a get-away man to enable D1 to escape afterwards.
iii) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.
These scenarios may in some cases overlap.
The first submission and R v Rahman
"Held, dismissing the appeals,
that where the principal committed an unlawful killing with the requisite intent for murder, an accessory would be liable for murder on the basis of his foresight of what the principal might do rather than his foresight of the intention with which the principal's act might be performed;…."
Those words might be thought, if the issue which had been live in Rahman is not fully inspected, to indicate that foresight of D1's intention is always simply irrelevant, and that all that matters is foresight of his act.
"….but that an undisclosed and unforeseen intention to kill on the part of the principal was not relevant to whether the principal's act had been fundamentally different from the act or acts which the accessory had foreseen as part of the joint enterprise.."
It is accordingly necessary to look carefully at the speeches in Rahman in order to see whether the opening phrase of the headnote does indeed carry the meaning that foresight of D1's intention is always irrelevant.
"It was strongly arguable that the principal's intention to kill, if found by the jury, took his (the principal's) action outside the scope of the common design and rendered it fundamentally different from anything the appellants had foreseen or contemplated."
"It was, inevitably, common ground between the parties that an accessory may only be criminally liable for a crime which the principal has committed, in murder unlawful killing with intent to kill or cause really serious injury. It was also common ground that the test of an accessory's liability under the wider principle explored in R v Powell (Anthony) is one of foresight. The crucial divide between the parties was: foresight of what ? The Crown's answer, clearly given by Mr Robert Smith, was: foresight of what the principal might do. On the Crown's analysis the principal's undisclosed intention is beside the point. It is his acts which matter."
Lord Bingham accepted this submission of the Crown (see paragraphs 23-25). The words which we have emphasised may, like the headnote, if read out of context, be thought to justify the proposition that foresight of D1's intention is always irrelevant. There is no doubt that they should not so be read.
"The appellants' submissions are misconceived as a matter of law in that an unknown and unforeseen intent to kill on the part of the principal is insufficient per se to render his actions fundamentally different from those foreseen by the secondary parties to a common design to inflict unlawful violence where those parties foresee the infliction of serious bodily harm with that intent by him." (our emphasis)
That made crystal clear that the issue being confronted was fundamental departure and the words for which we have supplied emphasis demonstrate beyond doubt that the Crown accepted that the basic necessity for D2's liability was foresight that D1 would inflict GBH with intent. It is certainly true that in the course of his argument Mr Smith QC did refer to foresight of the principal's actions (see page 139F), and this may well have been the source of the passage from Lord Bingham's speech cited above. But soon afterwards, counsel for the Crown again repeated the basic proposition that the liability of D2 depends on foresight that D1 would act with at least the intent to do GBH. He is recorded as submitting:
"Since the liability of an accessory who does not fall within the 'basic' accessory principle is determined by his foresight of the principal's actions, those actions being accompanied by the mens rea requisite to render them a crime, it is and should be sufficient to establish the liability of a secondary party for murder to prove that he had foresight that the principal would act with one or other of the specific intentions required to render the principal guilty of murder."
"The case must depend rather on the wider principle 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. …. It depends on contemplation or, putting the same idea in other words, authorisation, which may be express but is more often implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight."
That passage speaks of foresight of the act of D1. But it is to be noted that the judgment records that trial judge had directed the jury:
"that an accused was guilty…if proved to have had in contemplation that knife might be used on the occasion by one of his co-adventurers with the intention of inflicting serious bodily injury."
And later in the judgment Sir Robin said this:
"On the other hand, if it was not even contemplated by the particular accused that serious bodily harm would be intentionally inflicted, he is not party to murder."
"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 the murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lend himself to the enterprise and by doing so he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder."
"…I would answer the certified question of law…by stating that …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."
Lord Steyn, agreeing, dealt specifically with the question of foresight of intent at 13F-14C. He was addressing the submission that the rule under discussion created a form of constructive liability, which would, he accepted, be contrary to principle. He said:
"I would reject the argument that the accessory principle as such imposes a form of constructive liability. The accessory principle requires proof of a subjective state of mind on the part of a participant in a criminal enterprise, viz foresight that the primary offender might commit a different and more serious offence. Professor Sir John Smith….explained how the principle applies in the case of murder:
'….The accessory to murder, however, must be proved to have been reckless, not merely whether death might be caused, but whether murder might be committed; he must have been aware, not merely that death or grievous bodily harm might be caused but that it might be caused intentionally by a person whom he was assisting or encouraging to commit a crime…'
The foresight of the secondary party must be directed to a real possibility of the commission by the primary offender, in the course of the criminal enterprise, of the greater offence. The liability is imposed because the secondary party is assisting in and encouraging a criminal enterprise which he is aware might result in the commission of a greater offence…"
"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…."
Lords Scott, Rodger and Neuberger expressly associated themselves with this passage. [The position of the word 'intentionally' derives from the judgment of Lord Lane CJ in Hyde; the principle might perhaps be yet clearer if it were placed before 'kill', but that is mere syntactical quibble; the sense is the same.]
"The subject matter of a joint enterprise is not a state of mind or intention but an objective act which it is contemplated will or might be done."
In that case, the defendant M Day had been one of three participants in an assault by beating. The others had been convicted of murder; he had been convicted of manslaughter, it having been his case that he did not foresee that anyone would act with an intent to kill or do GBH. The court was dealing with the submission that he ought not to have been convicted even of manslaughter. The argument advanced on his behalf had been that since he did not foresee infliction of GBH, the injuries resulting in death were not part of any joint venture for which he bore responsibility. The court rejected that argument, holding that since he had voluntarily set out to cause some harm, and death had resulted, he was guilty of manslaughter. The sentence quoted above occurs in the following context:
"As regards the second point, it is not part of the law of joint enterprise that a secondary party, B, must share the mens rea of principal offender, A - see Slack  QB 775 and Hide  1 QB 134 where it was made clear that foresight of what the principal may do is sufficient mens rea for the accessory even if there is no actual agreement between him and the principal. In Powell and English itself a major question was whether a secondary party in a murder case must be shown to have been actuated by the mens rea required in the principal offender, and the question was answered in the negative. The subject matter of a joint enterprise is not a state of mind or intention but an objective act which it is contemplated will or might be done."
In other words, the point being made was the uncontroversial one that D2 need not share the mens rea of D1. That is of course the whole basis of the third type of joint enterprise liability. That passage is then followed immediately by this:
"Suppose that the participants in a joint enterprise all propose or foresee the same kind of violence being inflicted on their victim, let it be punching with the possibility of kicking to follow. On that they are at one. But two them harbour a subjective intention to inflict really serious injury by means of such violence. The third harbours only, or foresees or intends only, that some harm might be done. One of those actuated by an intent to do grievous bodily harm punches or kicks the victim just as all three foresaw. The victim falls and suffers a subdural haemorrhage and dies. The principal is guilty of murder as he had the mens rea required. So also is the accessory who, like him, intended or contemplated the infliction of the serious injury. What of the third adventurer? Mr Fitzgerald submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows….."
Thus this court proceeded upon the basis that the second participant was guilty of murder because he at least foresaw the deliberate infliction of GBH, whereas the third was not because he did not. That is precisely the law as we have endeavoured to state it. This court was not beginning to say that D2 could be guilty of murder without foresight that D1 might act with murderous intent.
R v Badza
"It was held that, where the principal committed an unlawful killing with the requisite intent for murder, a secondary party would be liable for murder on the basis of his foresight of what the principal might do, rather than his foresight of the intention with which the principal's act might be performed." (paragraph 30)
"(3) Are you sure that in taking part in the attack…the defendant whose case you are considering either shared the intention to kill him or to cause him really serious injury or that he realised that one of the attackers might use such violence by the use of lethal weapon…as to kill him with the intent to kill or to cause him really serious injury ?"
"Are you sure that in taking part in the attack…the defendant whose case you are considering either….or realised that one of the attackers might use such violence by the use of lethal weapons….as to kill him or to cause really serious injury.."
At paragraph 31 of Badza Lord Bingham's treatment of question (3) was then described as being approval "amended to remove reference to the intention of the principal party". That may well have contributed to the proposition in Badza that Rahman held that only foresight of act was ever relevant, as distinct from foresight of the intention of D1. But as we have shown, Lord Bingham was not contemplating the amendment of Wakerley J's question to remove reference to foresight of the intention of the principal, he was contemplating the amendment of the question to remove reference to D2 sharing that intention. And moreover it is doubtful that the question needed any amendment at all, except to put shared intent in a different place in the steps to verdict.
R v Lewis
Conclusion: the first submission
"But if the jury conclude that [D2] 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."
[He must there be using the expression 'murderous intent' to mean the intent to kill.] In the case where D2 simply says he had no idea the weapon was there, there will often be no evidential basis for considering any issue beyond whether the contrary has been proved. Parsons  EWCA Crim 64, is a recent example of just such a case. It follows that it is undoubtedly true that in many if not most cases the critical question for the jury will indeed be what act D2 foresaw that D1 might commit.
The second submission
"It was, inevitably, common ground between the parties that an accessory may only be criminally liable for a crime which the principal has committed, in murder unlawful killing with intent to kill or to cause really serious injury."
That also is how the case had been left to the jury by the judge: see his question 1 recorded at paragraph 18 (page 150E).