Revised Approved Judgment
Incorporating decision on sentence
Lord Justice Thomas:
This is the judgment of the court to which we have all contributed.
- On 22 May 2008 the appellant was convicted of murder, attempted murder and possessing a firearm with intent to endanger life at the Central Criminal Court before Cooke J and a jury.
- On any view the appellant, although aged only 17 at the time, was guilty of a dreadful crime. He had voluntarily engaged in an exchange of gunfire with an opponent in a public place. There was terrible danger to innocent members of the public. A shot from an opponent had killed an innocent passer-by. There is and can be no challenge to this appellant's conviction for attempted murder of his opponent and for the very serious firearms offence. On any view he merited an indefinite sentence of custody by imprisonment for public protection, so that he cannot be released unless and until he ceases to be the danger to the public which he presently is, and with a very long minimum term as punishment for his crime.
- There is no doubt whatever that his opponent was guilty of murder. That is by the ordinary law of transferred malice, where violence aimed at X in fact injures Y. The opponent fired at the appellant and missed and hit another person. The question raised, apparently for the first time, is whether the principles of joint enterprise make this appellant also guilty of murder when the fatal shot was fired not by him, but at him.
- He appeals by leave of the single judge against his conviction for murder. He renews his application for leave to appeal against sentence in respect only of the attempted murder and the possession of a firearm with intent to endanger life, disputing the period of the minimum term. We shall first outline the facts.
- Shortly after 6 p.m. on Tuesday, 2 October 2007, a 26 year old Polish care worker, Magda Pniewska, was walking home from a nursing home through a car park for blocks of residential accommodation in New Cross, South London and up steps towards an open piece of ground. She was on the telephone to her sister when she was killed by a single shot to her head. That shot was fired in an exchange of fire between two gunmen that took place in the following circumstances.
- The appellant, then aged 17, had a dispute with another youth (whom we shall identify as TC). At about 5 p.m. on 2 October 2007 he went with a friend, Nana Acheampong, by car to the home of his ex-girlfriend, Roxanne Landell. Shortly thereafter Nana Acheampong and the appellant drove round to a car park elsewhere on the same estate from where the appellant went on foot to an adjacent car park. He had armed himself with a gun which was silver in colour and he had several rounds of live ammunition. Nana Acheampong stayed in the car.
- A red Volkswagen Polo was already in the car park. The appellant spoke to the occupants of the Polo, as they were about to leave. According to two of them he told them that "he had come to meet someone to handle some business". He asked if they had seen a man in a red bandana, saying that that man owed him some money.
- Very shortly thereafter the occupants of the red Polo saw someone come down the steps towards the car park. His face was covered with a red bandana. At the trial, he was referred to as "bandana man" and it is convenient to follow this appellation. He pulled out a gun, black in colour, and started shooting at the appellant. The appellant crouched down behind the red Polo, pulled out his gun and returned the fire. The appellant fired two or three shots over the roof of the car. He then went to the front of the car and started shooting over the bonnet whilst the other man shot back. The clear evidence of those in the Red Polo was that the appellant was shooting at bandana man.
- It was in that crossfire between the appellant and the bandana man that Magda Pniewska was killed. Forensic examination showed that the single bullet to the deceased's head did not come from the appellant's gun; it had come from the gun held by bandana man.
- Both the appellant and bandana man fled from the scene. A man believed to be bandana man was arrested, but never charged. The appellant was arrested four days later.
- At the trial the appellant gave evidence that he had gone to the car park to see his former girlfriend. He had had the gun with him as he had been asked by a friend to sell it. He had had a confrontation with a man called TC. He accepted that he had been looking for TC. When he was in the car park talking to the occupants of the red Polo one of the occupants had pointed to a man in a red bandana and asked him if that was the person he was looking for. He had then seen TC who started to fire at him with his gun. He had crouched behind a car, found the gun he had and fired one or two shots into the air, but did not fire at TC.
- The appellant was charged with the attempted murder of bandana man (alleged by the appellant to be TC), having a firearm with intent to endanger life and with the murder of Magda Pniewska. By the jury's verdict on the count of attempted murder (from which there is no appeal) it is clear that the jury rejected the appellant's account of the way in which he returned the fire. They must have accepted that he, in returning the fire, intended to kill bandana man.
The case against the appellant for murder
- The appeal is, however, against the conviction for the murder of Magda Pniewska of which he was found guilty, even though she was killed by the gun fired by bandana man and not by the appellant. It is necessary therefore to explain the basis on which the case was put before the jury and the course the trial took.
- The Crown originally put their case on two bases. First, it was contended that the appellant had aided and abetted the shooting by bandana man with intent to kill; he had been present and encouraged it.
- The judge rejected this in his ruling at the end of the prosecution case:
"Where spectators encourage an illegal prize fight, they were secondary parties to the assault that each prize fighter committed upon the other as they encouraged each to batter the other. There was a common purpose shared with the batterers in relation to the assault, see R v Coney (1882) 9 Q.B.D. 534.
Here, however, it cannot be said, in my judgment, that the defendant actively encouraged Bandana Man to shoot at him, and even if he did, it would be a real oddity for a victim of an attempted murder to be a secondary party to that attempt. In reality on the evidence, the defendant fired at Bandana Man in the hope of killing him or causing him grievous bodily harm, frightening him, or arguably, in self-defence. He cannot be said to have encouraged the other to fire back, whatever the order of shots as the jury might ultimately find them to be. He might have provoked further firing, but he did not encourage it."
This way of putting the case was not thereafter pursued.
- Second, the Crown contended that the gunfight was a joint enterprise crime as between the appellant and bandana man, and that each foresaw that in the course of it the other might shoot, with intent to kill or do really serious bodily injury, and might kill someone other than the immediate target of his shot. The Crown based this way of putting the case on the conclusion summarised by Lord Hutton in R v Powell  AC 1 at 27E:
"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 contended on that basis that the appellant was jointly responsible with bandana man for the murder of Magda Pniewska.
- It was submitted by the appellant, at the close of the prosecution case, that there was no case to answer as, on the evidence adduced, there was no joint enterprise upon which the appellant and bandana man were engaged. The two men were not parties to a single joint enterprise, as each was engaged on an individual and separate mission with an opposite purpose to the other, as each wished to harm the other. There was no commonality of intent, as each wished to achieve wholly different outcomes, namely the death or injury of the other. The judge rejected that contention.
- He held that there could be no possible joint enterprise to which the appellant was a party which involved the killing of himself. Nor was there any joint enterprise to kill a particular person – his intention and the intention of bandana man were parallel but running in opposite directions. However he went on to say:
"Looking at the matter from first principles, it appears to me that in such circumstances, there can be a joint enterprise between the rival groups to commit a public order offence. If the jury could take the view on the available evidence that a similar meeting was pre-arranged, or that at the point at which they saw each other they decided upon a shoot-out, such a joint enterprise to cause an affray is a finding that is open to the jury.
Counsel for the defence says there is no room for any such joint enterprise because any joint enterprise or any offence must be characterised as a joint enterprise to murder or to cause grievous bodily harm. The prosecution point out that any number of offences can be committed whilst following a course of conduct. Public order offences were created for the protection of bystanders whilst other offences exist for the protection of persons against who violence is directed.
There is, therefore, no mutual exclusivity of one type of offence as against the other. As a matter of principle, in my judgment, there is every possibility of a joint enterprise to commit affray, and it is open on the evidence so far available for the jury to come to that conclusion in the present case.
If a joint enterprise is found to commit affray by the use of unlawful violence which has the effect of causing the necessary fear for the purpose of that offence, the question is whether the death by a gunshot from a gun carried by someone who is also party to the joint enterprise, can be said to be within the foresight of other parties to the joint enterprise and the affray. It is accepted by the defence that the events in question did constitute the offence of affray on the part of both the protagonists. It cannot matter, it seems to me for this purpose, whether the other parties to the joint enterprise had interests which are antagonistic to the gunman or not. Whether they are on the same side of the offence in the conflict is neither here nor there, nor can it matter whether it can be shown who actually committed the act which immediately caused the death or not, provided that the relevant intent to kill or cause grievous bodily harm can be established, whether by reference to the nature of the act or otherwise.
If such a death is caused by shooting and falls within the contemplation of a party to a joint enterprise to cause affray, the death occurs in the course of a joint enterprise at the hands of the person with the requisite intent, then the other parties to the joint enterprise can also be guilty of murder if they have the necessary subjective contemplation.
- The case proceeded to the jury on this basis.
The directions to the jury
- In the course of his summing-up (which was accompanied by written directions to the jury which in all material respects were set out orally in the summing-up) the judge explained the concept of joint enterprise to the jury in the following terms:
i) Where a criminal offence was committed by two or more persons, each of them might play a different part, but if they were in it together as part of a joint plan or joint agreement to commit it, each was guilty of the planned offence.
ii) The words "plan" or "agreement" did not mean there had to be any formality about it. An agreement to commit an offence might arise on the spur of the moment. Nothing need be said at all. It could be made with a nod or a wink or just a knowing look or by taking the first step in committing an offence in which the other then joined, so that the agreement could be inferred from their behaviour.
iii) The essence of joint responsibility was that each shared the intention to commit the offence and took some part in it so as to achieve that aim.
iv) If in the course of the joint enterprise to commit one offence, one of them committed another offence, both might be responsible for that other offence. Clearly the person who did the act which constituted the further offence would be guilty of it, but the other would be guilty if he realised that the act done was something which the first person might do with the necessary intent as part of their planned offence.
v) After giving the jury some examples derived from a burglary, the judge said:
"Here it is said by the prosecution that bandana man and [the appellant] planned to use unlawful violence towards another by having a shoot-out, whether that plan was made beforehand and the meeting was pre-arranged or was made on the spur of the moment when they saw each other and fired at each other from the steps and the car respectively. It is accepted by the defence that such unlawful violence would constitute the offence of affray in the circumstances, because of its impact on persons present at the scene who would be afraid for their safety. If you are sure that bandana man and [the appellant] joined together to commit such unlawful violence by having a gunfight and this joint enterprise came into being before Magda was killed by a shot from "bandana man", then the [appellant] would also be guilty of murder, provided the other requirements were satisfied."
vi) He concluded by saying that the appellant would be guilty of murder if the jury were sure:
a) That bandana man and the appellant were in a joint enterprise to cause an affray – to use unlawful violence against each other by having a gunfight and by firing at each other, whether this joint enterprise was the result of a pre-planned meeting or arose on the spur of the moment when they saw each other and;
b) That in the course of that joint enterprise Magda was murdered by bandana man on the basis of transferred malice, as he had previously explained, and;
c) That the appellant realised – and it was the Crown's case that he must have realised – that in the course of their joint enterprise gunfight bandana man might kill by shooting with the requisite intention for murder.
- The judge then left the jury a series of questions which reflected his directions.
- The critical part of the judge's ruling and subsequent direction is this. He treated it as sufficient joint enterprise that the appellant and bandana man each committed the offence of affray. That they were on opposite sides with reciprocally opposing intentions was held irrelevant. If each fought the other, that was sufficient to establish the joint enterprise and the jury then had to go on to consider foresight.
The basis of the appeal
- The argument put forward by the appellant was that the Crown's case and the judge's direction involved a significant extension of the principles of joint enterprise. It can be summarised as follows:
i) There could not in fact or in law be a joint enterprise where each of the two participants had the intention of killing the other. At its highest, the Crown's case was that each was attempting to pursue his own enterprise – to shoot the other; far from being a common enterprise, each was engaged on a separate and individual, diametrically opposed mission. Even if there were a pre-planned meeting at which each would carry a gun (and this was not proved), each had opposite states of mind – each intended to harm a specific individual, namely the other. For joint enterprise it was essential that there be a shared or common outcome; here each desired and acted to achieve wholly different outcomes. The fact that they used the same method did not show they were engaged in a joint enterprise. There could not therefore be a straightforward joint enterprise to kill each other.
ii) The only matter that the appellant could have foreseen was that bandana man might shoot to kill him. Foresight alone was not enough; it had to be foresight of something done in the course of joint enterprise. The liability of the secondary party rested on the encouragement of the principal's act; the judge had correctly ruled that there was no encouragement and so this basis of liability could not be established.
iii) Joint participation by the appellant in the crime of affray was not enough, without more, to establish joint enterprise.
- It was also contended that the judge should have left an alternative verdict of manslaughter to the jury. In our judgement, the judge was right not to leave this as an alternative verdict arising out of the affray. The appellant was either guilty or not guilty of murder on the basis advanced. Where the appellant was facing a charge of attempted murder and a firearms offence, to have left an alternative verdict of manslaughter would not have assisted the jury in its task and would have added nothing in terms of criminality.
The essential features of the case
- The judge was faced with a novel and difficult issue. He approached the matter with great care and, only after very careful consideration of principle and some authorities, reached his decision in rulings and directions that were admirable in their clarity.
- Since the trial, the researches of the advocates have found one case from the 16th century which it was suggested had some similarities – Mansell and Herbert's case (1555) 2 Dyer 128b, 73 ER 279. In the course of an attack by force on a house by a group of men who intended to take goods from the house, a woman was killed by a stone thrown by one of the group at another person. By a majority, the judges decided that all were guilty of murder holding:
"if two fight by appointment beforehand to do so, and an indifferent stranger come to part them, and be killed by one of them, it is murder in him who killed; and some said in both, but the others would not agree to this."
Grateful though we are to the advocates for their diligence, we agree with their submission that this case is only of historic interest, as the basis of the decision is not clear and the judges disagreed. In any event, it was decided at a time where, as is evident from Salisbury's case (1553) 1 Plowden 97, the law was very different. Salisbury's case, as was observed in Anderson and Morris  2 QB 110, appears to have held
"that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect"
Mansell and Herbert's case apart, there is no authority that could be said to touch the present case.
- Thus, as was the position before the judge, the issue has to be approached as a question of principle relating to the law of joint enterprise liability.
- The expression 'common enterprise' or 'joint enterprise' may be used conveniently by the courts in at least three related but not identical situations:
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. This has been termed by some "plain vanilla joint enterprise" (see paragraph 32 below), but it has been questioned whether this type of joint enterprise is not more accurately described as a case of joint principalship (see Sir Richard Buxton: Joint Enterprise  Crim LR 233 at 237).
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 getaway 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 situations may in some cases overlap.
- There is utility in the use of the expressions 'common enterprise' or 'joint enterprise' in each of these situations, especially to introduce a jury to the proposition that a man may be responsible for acts which his own hand did not physically commit, if those acts are within the common purpose. But, as Lord Brown pointed out in R v Rahman  UKHL 45;  1 AC 129, at paragraph 63, the third type depends upon a wider principle than do the first and second. The important difference is that in the third type, D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A.
- The case for the Crown and the direction to the jury were based on the third type of joint enterprise. It was not disputed by the appellant that he and bandana man had both committed the offence of affray; this was said to be a joint offence (crime A). On the jury's verdict it is not in dispute that Crime B (the murder) was foreseen as a real possibility by the appellant; the issues that directly arose in Powell and Rahman as to liability where it is contended that the crime B was an act fundamentally different to what was foreseen did not arise. The question which arose in this case was whether the affray which both men had committed involved any common purpose, and if so, what.
- Before turning to examine the way in which the case was put and the jury directed, it is important to explain why the Crown did not put its case on the first two types of joint enterprise set out in paragraph 28.
(1) The appellant as a party to the first type of joint enterprise, namely to shoot at each other (with intent to kill or cause really serious bodily injury) and to be shot at
- The first type of joint enterprise liability has been referred to by some as "the plain vanilla version of joint enterprise". The phrase was used by Lord Bingham in Rahman at paragraph 9 by his citation of what Lord Hoffman said in Brown v The State  UKPC 10 at paragraph 8:
"The simplest form of joint enterprise, in the context of murder, is when two or more people plan to murder someone and do so. If both participated in carrying out the plan, both are liable. It does not matter who actually inflicted the fatal injury. This might be called the paradigm case of joint enterprise liability"
- This type of joint enterprise, namely to shoot at each other (with intent to kill or cause really serious bodily injury) and to be shot at (described as the narrow basis by the Crown), was expressly disavowed by the Crown. It was not pursued for the reasons summarised in the Crown's skeleton on the appeal :
"The difficulty … on the facts of the current case is that the appellant himself was the intended victim of the other man. The appellant neither intended nor consented to bodily injury to himself at the hand of the other man nor could he truly be said to have been party to a joint enterprise to kill or cause harm to himself (being the intended target of the other man). Even if he had contemplated that the other man might shoot at him with the necessary intent, he not being party to the enterprise to cause harm to himself, could not be liable for any unintended consequences on that basis alone"
- For similar reasons, as the Crown also accepted, the appellant could not be a party to a conspiracy to kill or to cause really serious bodily injury. S.2(1) of the Criminal Law Act 1977 exempts from liability for the offence of conspiracy under the Act a person "if he is the intended victim of the offence". S.2(2) provides that no person can be guilty of a conspiracy to commit an offence if the only person with whom he agrees is a victim.
- The judge had asked the Crown whether, if the appellant had not been killed, but had been injured, the appellant would have been guilty of his own attempted murder. The Crown accepted that he could not be.
- The concession by the Crown that there could be no joint enterprise liability of the first type for murder, attempted murder or an offence under s.18 of the Offence Against the Person Act 1861 was nonetheless relevant. We explain why at paragraphs 54 and following below when considering the issue of common purpose in the context of the third type of joint enterprise.
- Although it is not necessary to consider this further at this stage, we must make clear that the correctness of the view taken by the Crown has not been considered by us. We set out at paragraph 71 and following the difficult issues that arise.
(2) The appellant's aiding and abetting bandana man shooting at him
- As to the second type of joint enterprise liability, namely liability for aiding and abetting bandana man shooting at him, the judge ruled, as we have set out at paragraph 15, that the Crown could not put forward a case of aiding and abetting murder by encouragement. The judge had held that it could not be said that the appellant encouraged bandana man to shoot at him or that, if he did, it would be odd for a victim of a murder to be a secondary party to that murder. We return to the consequences of this at paragraph 46 below.
(3) Joint enterprise to commit an affray and liability for the second crime of murder
(a) The Crown's case
- We turn, against that background, to the way the Crown put its case, namely to the third type of joint enterprise liability - a joint enterprise to commit crime A (affray) with foresight that crime B (murder) might be committed when they shot at each other. It was based, as we have already stated at paragraph 16 above, on the conclusion of Lord Hutton in Powell (at page 27E):
"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."
- The Crown's case (described as the wider basis) took into account the fact that the appellant and bandana man met with the intention of confronting each other and firing guns at each other, notwithstanding the very obvious risk not just to themselves, but to others.
"On that analysis, there is evidence of an agreement between the two to meet in a public place to exchange gun fire, each with the intention to kill (viz. the attempted murder case against the appellant) or to cause serious harm to the other. Analyzed in this way, the criminal liability of the other man is wider than merely for the single fatal shot. Accordingly the liability of a secondary party can be analysed on a wider basis."
In contradistinction to there being an agreement to shoot at each other with the intention of killing or causing harm to each other, the case put by the Crown was summarised as:
"a common enterprise to meet and exchange gunfire, each party ([the appellant] included) having at the time an intention to kill or to cause grievous bodily harm.... It is perhaps not surprising that to meet and exchange gunfire with an intention to kill or cause serious bodily harm is neither lawful nor without criminal penalty. For centuries the common law of England (and subsequent legislation) has treated as criminal the use of violence in a public place (so breaching the Queen's peace) and the causing of serious physical harm to one another, even where that use of violence is by agreement"
- This involved two crimes (the suggested joint enterprise to shoot (an affray)) and a further crime, the murder (the shooting by bandana man of a bystander when he shot at the appellant) which the appellant foresaw as a real possibility arising from the affray, said to be the joint enterprise on which he had embarked with bandana man.
(b) The appellant and bandana man were guilty of affray as principals
- It was not disputed on behalf of the appellant at the trial that he was guilty of affray under s. 3 of the Public Order Act 1986 - that is the use or threat by a person of unlawful violence towards another, the conduct of the person using the violence or making the threat being such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
- The judge directed the jury that they had to be satisfied that the appellant and bandana man were in a joint enterprise to cause an affray, defining it, for the purposes of the case, as the use of unlawful violence against each other by having a gunfight and firing at each other. We do not therefore need to concern ourselves about that part of the offence of affray which concerns threats of violence.
- As was accepted, both the appellant and bandana man were clearly guilty as principals of affray, as both used unlawful violence towards the other and their conduct was such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
(c) Was there a joint enterprise to commit the affray?
- However to see whether the participation of the appellant comes within the third type of joint enterprise liability, it is necessary to analyse the participation of the appellant and bandana man in the commission of the offence of affray. The issue can be expressed as two questions:
i) Did the appellant and bandana man jointly agree to participate in the commission of the offence of affray sharing a common purpose that each would use unlawful violence against each other?
ii) Or, in the absence of an agreement or common purpose, did the appellant aid and abet bandana man's use of unlawful violence?
(d) Did the appellant aid and abet the affray?
- We will take the second question first, as it can be dealt with briefly. It was accepted that no case of aiding and abetting arose, as the only relevant encouragement would be encouragement by the appellant to bandana man to shoot at him which, as we have explained at paragraph 38 the judge had ruled could not be relied on by the Crown.
- We therefore turn to consider the first question whether there was an agreement to commit an affray sharing a common purpose.
(e) Guilt in affray does not require a common purpose
- Affray can of course be committed by a single person. Where it is committed by 2 or more, it does not necessarily involve any common purpose, although it may. It is easiest to take first the example of violent disorder, which demands 3 or more, but is otherwise indistinguishable from affray. If A and B are on the same side and use or threaten unlawful violence towards Y and Y also uses or threatens unlawful violence, they are no doubt all guilty of violent disorder; A and B also share a common purpose. But if they are opposed to each other but all fight, they may not share a common purpose. For the purposes of the offence of violent disorder, the statute makes them guilty of the same offence of violent disorder because it creates an offence which is constituted by the combined effect of their competing and mutually opposing actions (i.e. if that combined effect is such as would put a reasonable person in fear). But that is not the same thing as the various defendants to violent disorder always sharing a common purpose.
- Still less are two people who commit individual acts of affray necessarily sharing a common purpose. On the contrary their purposes will often be diametrically opposed. In a nutshell, in the particular context of affray (or violent disorder) two defendants who are guilty of the same offence do not necessarily share a common purpose.
- In NW  EWCA Crim 404, the appellant was charged with violent disorder under s. 2 of the Public Order Act 1986. It was contended on her behalf that she had a personal quarrel with the police and that the others who gathered round in a hostile and threatening manner were not acting in concert with her. It was submitted that the phrase "present together" in s. 2 of the Act carried with it the concept of a number of people acting together, if not in pursuit of a common aim, at least united by some more general purpose or intent so that it is possible to say, at least in a loose sense, that they are acting together. Rejecting this argument, Moore Bick LJ giving the judgment of the court held:
"14. At the heart of each of these three statutory public order offences lies the use or threat of unlawful violence of a kind that would cause a person of reasonable firmness present at the scene to fear for his personal safety. In other words, the mischief to which these sections of the Act are directed is public disorder, that is, conduct of a violent or threatening kind that would cause ordinary members of the public going about their lawful business to fear for their safety if they happened to come upon it. The offences of riot, violent disorder and affray are carefully graduated, both by reference to the number of persons who must be present in order for the offence to be committed and by reference to the purposes for which violence is used or threatened. Thus, the offence of riot can be committed only when twelve or more persons who are present together use or threaten unlawful violence for a common purpose, whereas the offence of violent disorder can be committed when three persons are present together and affray by one person acting alone.
15. It is in this context that the terms of section 2 of the Act fall to be interpreted. The absence, in contrast to section 1, of any requirement that there be a common purpose among those using or threatening the use of violence, makes it clear that the offence which it creates is not confined to situations in which the individual members of the crowd are acting together to achieve a common aim, or even with a common motive. Thus, in paragraph 126.96.36.199 of the current (12th) edition of Smith & Hogan, Criminal Law one finds the following comment:
"There need be no common purpose. Each of the three or more persons may have a different purpose or no purpose."
In our view that correctly reflects the natural meaning of the section."
- Proof that the appellant and bandana man were guilty of affray was in itself insufficient. It was necessary to show that they agreed to that offence and shared a common purpose in committing it.
(f) Was there a plan or common purpose to commit an affray?
- As we have set out at sub-paragraphs 20.iv) and 20.v), the judge directed the jury that they might find that bandana man and the appellant were in a joint enterprise to cause an affray by having a gun fight and by firing at each other, whether as a result of a planned meeting or which arose on the spur of the moment when they saw each other.
- In rejecting the appellant's submission that there was no room for any such joint enterprise because any joint enterprise between bandana man and the appellant could only be characterised as a joint enterprise to murder or cause really serious bodily injury to each other, the judge ruled (as we have set out at paragraphs 17 and 18) that it did not matter for the purposes of affray that they had opposing or antagonistic intentions in shooting at each other; there remained a joint enterprise to use unlawful violence.
- His view was that it did not matter for the offence of affray that their purposes were antagonistic to each other for such a joint enterprise, though it had been conceded by the Crown as we have set out at paragraphs 33-36 that there could not be a joint enterprise to shoot each other and be shot at, where their purposes were identical and similarly antagonistic. It appears that was because it was the judge's view they could share a common (and not antagonistic purpose) to cause fear.
- The judge did not make the error of thinking that two people both committing affray necessarily share a common purpose. His direction required the jury to consider whether or not the two gunmen had formed such a purpose, "either by pre-planning or on the spur of the moment when they saw each other." But his ruling that it made no difference whether their interests were antagonistic or not meant that the jury was left free to conclude that it was enough to constitute a common purpose that both men intended to fight one another.
- In our judgement, on closer inspection and much further analysis, this by itself is not enough, as the common purpose cannot be dissected in this way. The question needs to be asked, as we have set out at paragraph 45i), what was the agreement or common purpose when they were shooting at each other and plainly antagonistic to each other? Did the appellant share a common purpose with bandana man that each would shoot and be shot at.
- As we mention at paragraph 73 below, it may or may not be possible to envisage a scenario in which two people do share a common purpose that each will strike and be struck. The old prize-fight cases may be an example. The judge adverted in passing to a classical duel, which may or may not be capable of being another. But getting voluntarily involved in a fight does not ordinarily carry with it the intention (or purpose) not only to strike but also to be struck. Ordinarily, the purpose of each antagonist is to strike the other, but to avoid being struck himself. Ordinarily, the purposes of two people who fight may be similar, and they may be coincident, but they are not shared; rather they are reciprocal, or equal and opposite.
- If the judge's way of leaving the case to the jury was correct, then every participant in every fight would be guilty of anything which his opponent(s) foreseeably did, even if the violence of the opponent(s) was much greater than he or his associates were prepared to engage in. We return to this question at paragraphs 75 and 76 below.
- What is at issue here is secondary liability. The essence of secondary liability is that the parties are acting together or, as it is often put, in concert. For what we have described as the third type of joint enterprise liability they must be acting together or in concert in crime A, here affray. Two people who voluntarily engage in fighting each other might, exceptionally, be acting together or in concert, but ordinarily they are not. It is not realistic to say that they acted in concert to cause fear; they acted independently and antagonistically in a manner which did so. Absent a shared purpose to shoot and be shot at, the submission made by the appellant was correct that there was no room on the facts for any other common purpose. The jury was never asked to confront the question whether the shared common purpose was not only to shoot, but to be shot at.
(g) Should the identification and scope of the joint enterprise have been left to the jury?
- Where there is an issue as to the identification of the joint enterprise and its scope, that is ordinarily a matter for the jury. The judge left the case to the jury on the basis that there was only one joint enterprise for them to consider – the joint enterprise to use unlawful violence – an affray. The judge was in effect leaving to the jury a limited common purpose – limiting it to an exchange of gun fire which did not extend to the gun man being hit. This for the reasons given cannot have been correct.
(g) Can participation in the affray without a joint enterprise found liability?
- We have also considered whether simple participation in the affray with foresight, but without a joint enterprise to commit the affray would be sufficient to sustain the conviction. In our judgement, that would not have sufficed and the conviction cannot be upheld on that ground. Our reasons are as follows:
- As we have set out the Crown relied on a short passage in the speech of Lord Hutton in Powell. In Rahman Lord Brown summarised the law by bringing together the principles of common purpose and foresight:
"Once the wider principle was recognised (or established), as it was in Chan Wing-Siu and R v Hyde, namely that criminal liability is imposed on anyone assisting or encouraging the principal in his wrongdoing who realises that the principal may commit a more serious crime than the secondary party himself ever intended or wanted or agreed to, then the whole concept of common purpose became superfluous. There really is no longer any need for judges to direct juries by reference both to whether the relevant actions were within the scope of the common purpose of those concerned and also by reference to whether the secondary party realised that the principal might commit the acts constituting the more serious offence. The second limb of such a direction effectively subsumes the first. If the relevant acts were within the scope of the principal's and accessory's common purpose, necessarily the secondary party would realise that the principal might thereby commit the more serious offence. And if the secondary party did not foresee even the possibility of the more serious offence, such could hardly have been within the scope of any shared purpose."
He considered at paragraph 68 that the principles could be re-stated:
"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."
- In the ordinary case of this type of joint enterprise, if two agree to a joint enterprise to commit crime A and either foresees that the other may commit crime B, then he is liable, as it is foresight that will govern the scope of liability. For the reasons given by Lord Brown, there will generally be no difference between what is foreseen and what may be within the scope of the common purpose.
- There was no issue as to foresight on this appeal, but as we have explained the identification and the scope of the joint enterprise or common purpose was essential, if it remains a requirement that the scope of the common purpose or joint enterprise remains relevant. In our judgement, it does; foreseeability alone is not enough. The short statement of the conclusion of Lord Hutton and relied on by the Crown as the foundation for its case was made in the context of the issues in that case where the court was essentially concerned with the foresight (see the speech of Lord Steyn at page 12 and the identification of the issues by Lord Hutton at page 17G and 22E). Similarly the formulation by Lord Brown was made in a case where the joint enterprise was not in issue. However both Powell and Rahman proceed on the basis of the Privy Council decisions in Chan Wing-Siu  AC 168 and Hui Chi Ming  1 AC 34. In Chan Wing-Siu, Sir Robin Cooke giving the opinion of the Privy Council drew a distinction between aiding and abetting a single offence or an agreement to commit a single offence and a wider principle (at page 175):
".. it should first be recalled that a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert. In view of the terms of the directions to the jury here, the Crown does not seek to support the present convictions on that ground.
He then went on to state the wider principle based on foresight, though requiring "authorisation":
"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.
That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually 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."
- In Hui Chi-Ming v The Queen, the Privy Council elucidated the meaning of authorisation. In giving the opinion Lord Lowry made it clear that what was meant was not an express or tacit agreement to the further crime, but authorising it in the sense of proceeding with the venture foreseeing that the further crime was a possible incident of the joint venture (at page 53):
"Their Lordships consider that Sir Robin used this word - and in that regard they do not differ from counsel - to emphasise the fact that mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise. The word 'authorisation' explains what is meant by contemplation, but does not add a new ingredient. That this is so is manifest from Sir Robin's pithy conclusion to the passage cited: 'The criminal culpability lies in participating in the venture with that foresight."
- It is apparent from the two Privy Council cases, that foresight of the act was the determining factor, but on its own it was not enough. There had to be foresight of the further offence as a possible incident of the common enterprise and participation with that foresight in the common enterprise. The same is clear from the decision of the High Court of Australia in McAuliffe v The Queen  HCA 37 at paragraphs 12 and 13 ( 69 ALJR 621 at 624) on which the House relied in Powell:
"12. The doctrine of common purpose applies where a venture is undertaken by more than one person in pursuit of a common criminal design…The complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others…
13 …each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."
Lord Hutton summarised the position in Powell at page 21E:
"There is therefore a strong line of authority that 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"
Although the requirement of tacit acceptance of crime B as part of the joint enterprise (which had been formulated in Anderson and Morris) was no longer required (see the speech of Lord Mustill (at pages 11-12) and Lord Hutton (at pages 19-20) in Powell and the judgment of Lord Lane in R v Hyde  1 QB 134), it is clear that liability remains grounded in participation in a joint enterprise.
- The secondary party therefore must have foreseen crime B as a possible incident of the joint enterprise to commit crime A and participated in that enterprise with such foresight. The existence of a joint enterprise in committing crime A is therefore essential to liability. That joint enterprise can either rest on an agreement or common purpose to commit crime A or simple aiding and abetting crime A. In describing this form of liability as "parasitic accessory liability", Sir John Smith was making clear that the rule imposing liability for another offence committed in the course of committing the offence assisted or encouraged was as old as the law of aiding and abetting (see Criminal liability of accessories: law and law reform (1997) 113 LQR 453 and the direction of Alderson B in R v Macklin (1838) 2 Lewin 225).
- The Law Commission in its Report Participating in Crime (Law Com No 305, 2007) postulated at paragraphs 3.47, the possibility of liability in the following example:
"P and D agree to supply X with a class A drug (heroin). D knows that P has dealt in illicit pornography and anticipates that should X ask for child pornography, there is a real risk that P will supply it. D urges P not to do so. P agrees not to, but D still has his concerns. Nevertheless, D proceeds with the venture. As D feared, X asks for the child pornography and P supplies it.
On the Commission's view, as set out in the [Consultation Paper Assisting and Encouraging Crime, 1993], although D had assisted or encouraged P to supply a class A drug, D had not assisted or encouraged the supply of the pornography. Indeed D had sought to discourage it. Yet D is guilty of supplying child pornography."
The Commission appears to have assumed that this follows from the fact that for the third type of joint enterprise liability, no further assistance or encouragement is required beyond participation in crime A. We agree that no further assistance or encouragement beyond that is required, and that that is why D2 may be guilty of crime B even if he does not wish it to be committed. But it must remain a requirement that crime B be committed as an incident of, and in the course of the common purpose of, crime A. That may well not be so in the example given, if the supply of pornography is wholly independent of the common purpose of supply of drugs. Contrast the case in which D1 and D2 together embark on burglary and D1 commits murder of the householder, as D2 foresaw that he might. In that case, crime B, murder, is committed as part of the burglary which they have undertaken on the basis of a joint enterprise.
- Neither the view expressed by the Law Commission nor the views of others on the theory of liability (such as (a) the judgment of Hobhouse LJ in Stewart and Schofield  1 Cr App R 441 and his essay entitled Agency and the Criminal Law (2000, Lex Mercatoria) and (b) the article by Professor AP Simester in "The Mental Element in Capacity" (2006) 122 LQR 578 at 593) provide any support for a basis of liability that can exist without a joint enterprise to commit crime A. Once that is accepted to be the requirement, it must be the scope of that joint enterprise which determines whether D2 is liable for the foreseen act of D1.
Conclusion on the appeal against conviction
- It follows for the reasons we have given that we therefore allow the appeal and quash the conviction for murder.
- At paragraph 37, we stated we would return to set out briefly some observations on the difficult questions that arose in relation to the concession made by the Crown that there could be no joint enterprise of the first type, namely an agreement to shoot at each other (with intent to kill or cause really serious bodily injury) and to be shot at.
- It has been long established that a person who killed another in a duel was guilty of murder as were both seconds (R v Taverner (1619) 1 Ro Rep 360) and R v Rice (1803) 3 East 581). In R v Young (1838) 8 C&P 644, it was held that, if in a duel a person was killed, the seconds of both parties and anyone present at a duel who encouraged it were guilty of murder by aiding and abetting. As it was succinctly put in another duelling case (R v Cuddy (1843) 1 C & K 210) by Williams J summing up in the presence of Rolfe B:
"I am bound to tell you, as a matter about which my learned brother and myself have no doubt (nor, I believe, has any other Judge any doubt about it), that, where two persons go out to fight a deliberate duel, and death ensues, all persons who are present on the occasion, encouraging or promoting that death, will be guilty of abetting the principal offender."
In Coney, spectators to the prize fight were guilty if by their presence they encouraged, aided or abetted the assaults. In each of these cases those that were charged were aiding and abetting the duel or the fight. No difficulty arose, as if they were encouraging the duel or the fight; that was their participation. As Lord Mustill pointed out in Brown at page 261, the courts were not concerned with the criminality of duelling as between the principals but to stamp out the social evil by involving in the criminality others such as seconds or surgeons who perpetuated it. The route adopted in Young, Cuddy and Coney was the straightforward application of the principles of aiding and abetting.
- Thus there is no authority on the issue which the Crown conceded. The arguments in support of the view that the Crown took are clear, but it might be helpful if we set out the arguments to the contrary.
i) If two persons agree to a duel with the use of guns, they have agreed to shoot at each other with the intention of killing or seriously harming the other. That activity, as a matter of ordinary language, could be described as an agreement to shoot and be shot at. To that extent it is arguable that they have a shared common purpose.
ii) Clearly an agreement to a duel or to shoot at each other is illegal, as no-one can consent to run the risk of being killed in such a way. As Lord Templeman pointed out in R v Brown  AC 212 at 231, the defence of consent never availed a person who maimed the other participant in a duel: Hawkins' Pleas of the Crown 8th edition 1824 vol 1, ch 15. In A-G Reference No 6 of 1980  1 QB 715, it was made clear that:
"it is not in the public interest that people should try to cause or should cause each other harm for no good reason. … It is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended or caused."
iii) There can be an agreement to use unlawful violence by two opposing and antagonistic persons, illegal though it is. In R v Coney, all the judges were agreed that both prize fighters were guilty of an assault on each other. Although each would be guilty as a principal of a separate offence, it is arguable that the two prize fighters have a simple agreement to exchange blows and to that extent share a common purpose to hit and be hit.
iv) The question would then arise, if it was accepted that two prize fighters can have an agreement to hit and be hit, as to whether the use of lethal weapons made a difference. If there really is an agreement to shoot and be shot at, it is arguable that it does not. Just as in the case of prize fighters, each hoped that the other would be wounded or killed, but that he would not be. But the fact that each hoped for a different outcome, did not mean necessarily mean that they did not share a common purpose of shooting and being shot at.
v) The rationale of the law in relation to victims relied upon by the Crown was different. There are three matters to consider. First, in Victims and other Exempt parties in Crime Professor Glanville Williams pointed to the scope of and the rationale for the prohibition in s.2 the Criminal Law Act 1977 – the decision in Tyrrell  1 QB 710. The court in that case had to consider whether a girl between the ages of 13 and 16 could be convicted of aiding and abetting a male who had had unlawful sexual intercourse with her. The court held that she could not, as the offence had been enacted to protect girls against themselves; Parliament could not have intended that a statute passed to protect girls also made girls punishable under it. The rationale for that decision had little relevance to a genuine type of agreement for a duel. Second, the section did not define a victim; would those who engaged in violence against each other be regarded as victims? It is suggested in Smith and Hogan (12th edition) at page 433, that a person is a victim of an offence when the offence is held to exist for his protection with the effect that he is not a party to that offence when it is committed by another with his full knowledge and cooperation. There would however be an offence of conspiracy where both agree on a course of conduct that would involve both being guilty of the offence if the act takes place. Third, there are arguably broad practical and policy considerations of the kind to which Lord Steyn referred in R v Powell at page 14 and Lord Bingham in R v Rahman at paragraph 7.
- There is at the heart of this issue a question of policy. Does the justice and effectiveness of the criminal justice system require the imposition of liability in cases of genuinely agreed duels by acceptance that there can be a joint enterprise of the first type between opposing persons if they agree not only to hit but to be hit?
- But there is also a second question. At paragraph 58, we referred, in the context of the judge's directions to the jury, to the wider implications for criminal liability for death or injury or damage that occurs in the course of a fight between two gangs. Spelling that second question out may assist.
i) Say a "home" group meet an "away" group, each seeing that the other is armed with sticks and bars. They begin a fight.
ii) In the course of the fight members of the "home" group use bars intentionally to cause really serious injuries to a member of the "away" group and in the course of doing so injure an innocent bystander; each receives really serious injuries from which he dies.
iii) It could readily be inferred that all those engaged in the fight foresaw that there was a real possibility that one of those engaged in the fight or an innocent bystander might be caused serious bodily injury by being intentionally struck by one of those fighting with a bar in the course of the fight.
What are the circumstances in which the members of the "away" group bear criminal responsibility for the death of the member of their group or the innocent bystander caused by the "home" group?
- Both these questions must remain for the future. However, not unsurprisingly, on the second question there are some authorities from the State Supreme Courts of the United States where in cross fire between individuals or gangs, an innocent bystander had been killed. In cases where the bystander had been killed by an individual or gang member attempting to shoot at another individual or a member of another gang, that other individual or members of the other gang had been convicted of murder. In some states this turns on a particular statutory provision. In others the court have developed what is known as the "depraved heart murder" or "depraved indifference murder" principles (wanton and wilful killing with contemptuous disregard for the value of human life) to convict gang members where innocent persons were killed in cross fire between gangs. In Alston v Maryland 339 Md 306 (1994) in upholding a conviction of a member of the Alston gang for murder of an innocent bystander who had been shot with a stray bullet fired by the New York boys, the Supreme Court of Maryland summarised its reasoning as follows:
"Both the Alston group and the New York group were armed and prepared to do battle whenever and wherever their forces encountered one another. When their forces did meet at Presstman and Division Sts., they opened fire, returned fire, and continued to fire in mindless disregard of the lives of the people on the street and in the surrounding houses. Each participant, prior to the actual combat, was willing to use lethal force when the opposing groups met. Each participant manifested depraved heart malice toward non-combatants when the two groups met and sought to kill each other as they previously had determined to do. There would have been no mutual combat, and no murder of an innocent person, but for the willingness of both groups to turn an urban setting into a battleground. In this sense each participant is present, aiding and abetting each other participant, whether friend or foe, in the depraved conduct."
Application for leave to appeal against sentence
- There is further an application for leave to appeal against sentences of Detention for Public Protection with respective minimum terms of 12 years and 5 years imposed on 22 June 2008 by the judge in this case for the offences of Attempted Murder and Possessing a firearm with intent to endanger life. These offences arose out of the facts already considered in this judgment. In passing sentence on Count 2, the judge said:
"…the sentence I have to pass is one which should bear some relationship to the minimum term which I would have imposed had you succeeded in killing him. That would have resulted in a sentence … with a minimum term of more than 20 years."
- Whilst no complaint is made of the finding of dangerousness or the imposition of a sentence of Detention for Public Protection, it is said that the minimum terms specified are manifestly excessive representing, as they do, determinate equivalents of 24 years and 10 years detention. It is contended that the terms imposed were manifestly excessive when regard is had to the Definitive Guidelines in Attempted Murder produced by the Sentencing Guidelines Council. These do not in fact apply to this offence because of when it was committed but nevertheless may provide a helpful guide. It is contended that this comes at the lower end of level 1 providing a starting point of 15 years with a sentencing range of 12 – 20 years. In this case the sentence equivalent is, as has been said, 24 years.
- However, it is necessary for us also to consider whether we should exercise our powers under s.4 of the Criminal Appeal Act 1968 which gives the court power where a conviction is quashed on one count in an indictment in circumstances which arise in this case, to increase the sentence on Counts 2 and 3 provided that the total is not greater than the sentence imposed by the judge.
- As will be apparent from this judgment this case displays a number of significantly aggravating features balanced only by one important mitigating feature namely his youth. It should also be noted that no previous conviction of his was seriously material to this offence.
- As we have set out, the appellant attended at the scene with a working handgun and lethal ammunition. He was clearly looking for bandana man with the intention of shooting him. Although he did not fire the initial shots, he freely returned fire whilst in a public place, taking cover behind a car which he knew had four occupants and in circumstances where not only was the presence of other people eminently foreseeable but the fact that they may be in mortal danger was also plainly foreseeable. The jury must have found that he did foresee that someone else might be killed.
- There were in our view the aggravating features set out above which in the context of this case we regard as very grave, reflecting, as it did, a callous indifference to the safety of others wholly unconnected with his dispute with bandana man in circumstances where such safety was so obviously imperilled. This was a clear case for a sentence which proclaimed the public abhorrence of the crime being marked by it.
- We therefore see no basis for saying that the judge erred in principle or passed a manifestly excessive minimum term.
- However in relation to the exercise of our powers under s.4, we have concluded in the light of further submissions that we should increase the sentence. The moral culpability of the appellant is exactly the same whether the crime he has committed is attempted murder or murder. Likewise the harm which was the actual, and foreseen, consequence of his crime was the same, whichever his offence. In those circumstances, it seems to us that the sentence for attempted murder ought to have been in the same range as would have been a sentence for murder, albeit without the statutory engagement of Schedule 21 of the Criminal Justice Act 2003. We would substitute for the sentence for attempted murder one of detention for public protection with a minimum term of 15 years less time on remand.