BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Powell [1997] UKHL 57 (30 October 1997)
URL: http://www.bailii.org/uk/cases/UKHL/1997/57.html
Cite as: [1997] 4 All ER 545, (1998) 162 JP 1, [1999] 1 AC 1, [1998] 1 Cr App R 261, [1998] Crim LR 48, [1997] 3 WLR 959, [1999] AC 1, [1997] UKHL 57, [1998] 1 Cr App Rep 261

[New search] [Printable version] [Buy ICLR report: [1999] 1 AC 1] [Buy ICLR report: [1997] 3 WLR 959] [Buy ICLR report: [1999] AC 1] [Help]


JISCBAILII_CASE_CRIME

    Parliamentary Archives,
    HL/PO/JU/18/257

    Regina v. Powell and another (Appellants)

    (On appeal from the Court of Appeal

    (Criminal Division))


    JUDGMENT

    Die Jovis 17° Julii 1997

    Upon Report from the Appellate Committee of the late Parliament to whom was
    referred the Cause Regina against Powell and another, That the Committee had heard
    Counsel as well on Monday the 17th as on Tuesday the 18th and Wednesday the 19th days
    of February last upon the Petition and Appeal of Anthony Glasford Powell currently
    detained at Her Majesty's Prison, Wormwood Scrubs and Antonio Daniels, currently
    detained at Her Majesty's Prison, Whitemoor, praying that the matter of the Order set forth
    in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal (Criminal
    Division) of the 25th day of May 1995, might be reviewed before Her Majesty the Queen
    in Her Court of Parliament and that the said Order might be reversed, varied or altered or
    that the Petitioners might have such other relief in the premises as to Her Majesty the
    Queen in Her Court of Parliament might seem meet; as upon the case of the Director of
    Public Prosecutions (on behalf of Her Majesty) lodged in answer to the said Appeal; and
    due consideration had this day of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of
    Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's
    Court of Appeal (Criminal Division) of the 25th day of May 1995 complained of in the said
    Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and
    the same is hereby, dismissed this House.

    Cler: Parliamentor:

    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

    IN THE CAUSE

    REGINA

    v.

    POWELL AND ANOTHER

    (APPELLANTS)

    (ON APPEAL FROM THE COURT OF APPEAL
    (CRIMINAL DIVISION))

    REGINA

    v.

    ENGLISH
    (APPELLANT)

    (ON APPEAL FROM THE COURT OF APPEAL
    (CRIMINAL DIVISION))

    Oral Judgment: 17 July 1997

    Reasons: 30 October 1997


    Lord Goffof Chieveley
    Lord Jauncey of Tullichettle
    Lord Mustill
    Lord Steyn
    Lord Hutton


    LORD GOFF OF CHIEVELEY

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend, Lord Hutton. And for the reasons he has given I
    too would also make the orders he proposes.

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    I have had the advantage of reading in draft the speech to be delivered
    by my noble and learned friend, Lord Hutton and for the reasons which he
    gives I would also make the orders he proposes.

    - 1 -

    LORD MUSTILL

    My Lords,

    I concurred without hesitation in the orders made by the House on 17
    July 1997. Even as regards the case of English, which is much the more
    difficult of the appeals. I felt and continue to feel that neither or the
    authorities nor in plain justice could it be right to sustain the conviction once
    it was very properly conceded on behalf of the respondent that the appellant
    might have been unaware that the knife ultimately used by Wedale was even
    in the latter's possession. So much is to my mind clear. Much less clear is
    the proper analysis of the law in a situation where the secondary party
    foresees that the principal offender may commit a more serious crime than the
    one which the two set out to commit, and nevertheless decides to go ahead
    with the plan.

    My own reasoning was. in summary, as follows:

    Throughout the modern history of the law on secondary criminal
    liability (at least of the type with which this appeal is concerned) the
    responsibility of the secondary defendant has been founded on his participation
    in a joint enterprise of which the commission of the crime by the principal
    offender formed part. Any doubts on this score were set at rest by Reg. v.
    Anderson; Reg. v. Morris
    [1966] 2 Q.B. 110 by reference to which countless
    juries have been directed over the years. As it seemed to me the House
    should not depart from this long-established principle without the strongest of
    reasons. The problem is to accommodate in the principle the foresight of the
    secondary party about what the main offender might do. Two aspects of this
    problem are simple. If S did not foresee what was actually done by P he is
    not liable for it, since it could not have been part of any joint enterprise. This
    is what the court decided in Reg. v. Anderson; Reg. v. Morris. Conversely,
    if S did foresee P's act this would always, as a matter of common sense, be
    relevant to the jury's decision on whether it formed part of a course of action
    to which both S and P agreed, albeit often on the basis that the action would
    be taken if particular circumstances should arise.

    Intellectually, there are problems with the concept of a joint venture,
    but they do not detract from its general practical worth, which has proved
    itself over many years. In one particular situation there is, however, a
    problem which this time-honoured solution cannot solve. Namely, where S
    foresees that P may go too far; sincerely wishes that he will not, and makes
    this plain to P; and yet goes ahead, either because he hopes for the best, or
    because P is an overbearing character, or for some other reason. Many would
    say, and I agree, that the conduct of S is culpable, although usually at a lower
    level than the culpability of the principal who actually does the deed. Yet try
    as I may, I cannot accommodate this culpability within a concept of joint
    enterprise. How can a jury be directed at the same time that S is guilty only
    if he was party to an express or tacit agreement to do the act in question, and

    -2 -

    that he is guilty if he not only disagreed with it, but made his disagreement
    perfectly clear to P? Are not the two assertions incompatible?

    At the same time the culpability of S ought to be reflected in some
    form of criminal liability, attracting some degree of punishment. If one
    rejects, for the reason just given, the idea of forcing it within the existing
    notion of a joint venture there remain only two alternatives. The first is to
    abandon that notion altogether, and employ in all cases a test of foreseeability
    as the direct route to a verdict. The second is to retain the concept of a joint
    venture in all those cases, forming the great majority, where on the facts it
    provides a complete test for whether S is or is not guilty of the crime which
    P actually committed. In the minority of cases where S ought to be guilty and
    yet cannot rationally be treated as party to an express or tacit agreement to
    commit the offence in question his culpability can be established by a different
    route, proposed by Sir Robin Cooke, delivering the opinion of the Privy
    Council in Chan Wing-Siu v. The Queen [1985] AC 168, 175. Namely, that
    the culpability of S lies in his participation in the venture with foresight of the

    crime as a possible incident of the common unlawful enterprise.

    My Lords, I had for my part preferred the second of these alternatives;
    for I did not favour the abandonment of a doctrine which has for years worked
    adequately in practice and its replacement by something which I conceived to
    be new, unless this step was strictly necessary; and I did not think it
    necessary, since the existing principles could be retained, in combination (for
    the exceptional cases) with the concept of wrongful participation in face of a
    known risk. This was indeed what I understood the law to be, after Chan
    Wing-Siu v. The Queen
    [1985] 1 A.C. 168; Hui Chi-Ming v. The Queen
    [1992] 1 AC 34 and McAuliffe v. The Queen (1995) 69 A.L.J.R. 621.

    My Lords, given the importance of the topic I had originally prepared
    the draft of a speech containing a detailed historical analysis and a statement
    of the reasons which led me to prefer the second version of the law.
    Recognising, however, that the remainder of your Lordships see the matter
    differently I prefer that the draft should be withdrawn. There are some
    instances where the delivery of a minority opinion is a duty, the performance
    of which is not simply a matter of record, but also makes an important
    contribution to the future understanding and development of the law. This is
    not such a case. Doctrinally the differences may be considerable, but their
    practical significance is likely to be small, or perhaps even non-existent.
    What the trial judge needs is a clear and comprehensible statement of a
    workable principle, which he or she will find in the speech of my noble and
    learned friend, Lord Hutton; and the judge's task will not be helped in any
    way by a long exposition of a theory which might have prevailed, but in the
    event has not. This being so I am entirely willing to concur in the reasoning
    to which the remainder of your Lordships subscribe. This will, I suspect,
    require some judges to look again at the terms in which they have customarily
    directed juries, but the task should not be at all difficult to perform.

    - 3 -

    In conclusion I wish to express my wholehearted support for the
    observations of my noble and learned friend. Lord Steyn, in the latter part of
    his speech. Once again, an appeal to this House has shown how badly our
    country needs a new law of homicide, or a new law of punishment for
    homicide, or preferably both. The judges can do nothing about this, being
    held fast by binding authorities on the one hand and a mandatory statute on
    the other. Only Parliament has the powers, if it will choose to exercise them.
    It may not be a popular choice, but surely it is justice that counts.

    LORD STEYN

    My Lords,

    My Lords, for the reasons contained in the speech to be delivered by
    my noble and learned friend, Lord Hutton, which I have read in draft, I
    supported the orders made by the House in the appeals under consideration on
    17 July 1997. Given the importance and difficulty of the legal issues at stake
    I make a few additional observations.

    There are two separate but complementary legal concepts at stake.
    The first is the mental element sufficient for murder, i.e. an intention to kill
    or to cause really serious bodily injury. Only if this element is proved in
    respect of the primary offender, and if the other ingredients of murder are
    proved, does the second concept arise for consideration, viz. the criminal
    liability of accessories to a joint criminal enterprise. Under the accessory
    principle criminal liability is dependent on proof of subjective foresight on the
    part of a participant in the criminal enterprise that the primary offender might
    commit a greater offence, that being in these cases foresight that the primary
    offender might commit murder as defined in law.

    The thrust of both appeals was to challenge the existing law and
    practice regarding the second concept. The appeals under consideration relate
    to charges of murder. But there is no special rule regarding the criminal
    liability of accessories in cases of murder. The principle governing the
    criminal liability of accessories applies across the spectrum of most criminal
    offences. Any alteration in the accessory principle, as presently understood,
    would have to apply to most criminal offences. That does not mean that the
    arguments advanced on behalf of the appellants are unsound. But it underlines
    the sweeping impact of the changes to the existing law and practice necessarily
    involved in an acceptance of the submissions made on behalf of the appellants
    in these appeals.

    The established principle is that a secondary party to a criminal
    enterprise may be criminally liable for a greater criminal offence committed
    by the primary offender of a type which the former foresaw but did not
    necessarily intend. The criminal culpability lies in participating in the

    - 4 -

    criminal enterprise with that foresight. Foresight and intention are not
    synonymous terms. But foresight is a necessary and sufficient ground of the
    liability of accessories. That is how the law has been stated in two carefully
    reasoned decisions of the Privy Council: see Chan Wing-Sui v. The Queen
    [1985] AC 168 and Hui Chi-ming v. The Queen [1992] 1 AC 34. In a
    valuable article Professor Sir John Smith has recently concluded that there is
    no doubt that this represents English law: "Criminal Liability of Accessories:
    Law and Law Reform" (1997) 113 L.Q.R. 453, 455. And Lord Hutton has
    demonstrated in his comprehensive review of the case law that the law is as
    stated in the two Privy Council decisions. That does not mean that the
    established principle cannot be re-examined and, if found to be flawed, re-
    formulated. But the existing law and practice forms the starting point.

    Counsel for the appellants argued that the secondary party to a criminal
    enterprise should only be guilty of a murder committed by the primary
    offender if the secondary party has the full mens rea sufficient for murder, i.e.
    an intent to kill or to cause really bodily harm. Their arguments fell into
    three pans, namely (1) that there is a disharmony between two streams of
    authority; (2) that the accessory principle involves a form of constructive
    criminal liability; and (3) that it is anomalous that a lesser form of culpability
    is sufficient for a secondary party than for the primary offender. The first
    part of the argument centred on the scope of decisions of the House of Lords
    in Reg. v. Moloney [1985] AC 905 and Reg. v. Hancock [1986] AC 455.
    Those decisions distinguish between foresight and intention and require in the
    case of murder proof of intention to kill or cause serious bodily injury. But
    those decisions were intended to apply to a primary offender only. The
    liability of accessories was not in issue. Plainly the House did not intend in
    those decisions to examine or pronounce on the accessory principle. The
    resort to authority must therefore fail.

    That brings me to the second argument. If the application of the
    accessory principle results in a form of constructive liability that would be
    contrary to principle and it would be a defect in our criminal law. But subject
    to a qualification about the definition of the mens rea required for murder to
    which I will turn later, 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 party 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,
    "Criminal Liability of Accessories: Law and Law Reform" (1997) 113 L.Q.R.
    464, explained how the principle applies in the case of murder:

    "Nevertheless, as the critics point out it is enough that the
    accessory is reckless, whereas, in the case of the principal,
    intention must be proved. Recklessness whether death be
    caused is a sufficient mens rea for a principal offender in
    manslaughter, but not murder. The accessory to murder,
    however, must be proved to have been reckless, not merely

    - 5 -

    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.
    Recklessness whether murder
    be committed is different from, and more serious than,
    recklessness whether death be caused by an accident." (My
    emphasis.)

    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. The liability of
    an accessory is predicated on his culpability in respect of the greater offence
    as defined in law. It is undoubtedly a lesser form of mens rea. But it is
    unrealistic to say that the accessory principle as such imposes constructive
    criminal liability.

    At first glance there is substance in the third argument that it is
    anomalous that a lesser form of culpability is required in the case of a
    secondary party, viz. foresight of the possible commission of the greater
    offence, whereas in the case of the primary offender the law insists on proof
    of the specific intention which is an ingredient of the offence. This general
    argument leads, in the present case, to the particular argument that it is
    anomalous that the secondary party can be guilty of murder if he foresees the
    possibility of such a crime being committed while the primary can only be
    guilty if he has an intent to kill or cause really serious injury. Recklessness
    may suffice in the case of the secondary party but it does not in the case of
    the primary offender. The answer to this supposed anomaly, and other similar
    cases across the spectrum of criminal law, is to be found in practical and
    policy considerations. If the law required proof of the specific intention on
    the part of a secondary party, the utility of the accessory principle would be
    gravely undermined. It is just that a secondary party who foresees that the
    primary offender might kill with the intent sufficient for murder, and assists
    and encourages the primary offender in the criminal enterprise on this basis,
    should be guilty of murder. He ought to be criminally liable for harm which
    he foresaw and which in fact resulted from the crime he assisted and
    encouraged. But it would in practice almost invariably be impossible for a
    jury to say that the secondary party wanted death to be caused or that he
    regarded it as virtually certain. In the real world proof of an intention
    sufficient for murder would be well nigh impossible in the vast majority of
    joint enterprise cases. Moreover, the proposed change in the law must be put
    in context. The criminal justice system exists to control crime. A prime
    function of that system must be to deal justly but effectively with those who
    join with others in criminal enterprises. Experience has shown that joint
    criminal enterprises only too readily escalate into the commission of greater
    offences. In order to deal with this important social problem the accessory

    - 6 -

    principle is needed and cannot be abolished or relaxed. For these reasons I
    would reject the arguments advanced in favour of the revision of the accessory
    principle.

    That brings me to the qualification which I have foreshadowed. In
    English law a defendant may be convicted of murder who is in no ordinary
    sense a murderer. It is sufficient if it is established that the defendant had an
    intent to cause really serious bodily injury. This rule turns murder into a
    constructive crime. The fault element does not correspond to the conduct
    leading to the charge, i.e. the causing of death. A person is liable to
    conviction for a more serious crime than he foresaw or contemplated: see
    Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp. 250-251;
    Ashworth, Principles of Criminal Law, 2nd ed. pp. 85 and 261; Card, Cross
    and Jones, Criminal Law,
    12th ed. (1992), pp. 203-204. This is a point of
    considerable importance. The Home Office records show that in the last three
    years for which statistics are available mandatory life sentences for murder
    were imposed in 192 cases in 1994; in 214 cases in 1995; and in 257 cases in
    1996. Lord Windlesham. writing with great Home Office experience, has
    said that a minority of defendants convicted of murder have been convicted
    on the basis that they had an intent to kill: "Responses to Crime," vol. 3
    (1996), at 342, n. 29. That assessment does not surprise me. What is the
    justification for this position? There is an argument that, given the
    unpredictability whether a serious injury will result in death, an offender who
    intended to cause serious bodily injury cannot complain of a conviction of
    murder in the event of a death. But this argument is outweighed by the
    practical consideration that immediately below murder there is the crime of
    manslaughter for which the court may impose a discretionary life sentence or
    a very long period of imprisonment. Accepting the need for a mandatory life
    sentence for murder, the problem is one of classification. The present
    definition of the mental element of murder results in defendants being
    classified as murderers who are not in truth murderers. It happens both in
    cases where only one offender is involved and in cases resulting from joint
    criminal enterprises. It results in the imposition of mandatory life sentences
    when neither justice nor the needs of society require the classification of the
    case as murder and the imposition of a mandatory life sentence.

    The observations which I have made about the mental element required
    for murder were not directly in issue in the appeals under consideration. But
    in the context of murder the application of the accessory principle, and the
    definition of murder, are inextricably linked. For that reason I have felt at
    liberty to mention a problem which was not addressed in argument. That
    counsel did not embark on such an argument is not altogether surprising.
    After all, in Reg. v. Cunningham [1982] AC 566 the House of Lords
    declined to rationalise and modernise the law on this point. Only Lord
    Edmund-Davies expressed the hope that the legislature would undertake
    reform: see p. 583B-C. In my view the problem ought to be addressed. There
    is available a precise and sensible solution, namely, that a killing should be
    classified as murder if there is an intention to kill or an intention to cause

    - 7 -

    really serious bodily harm coupled with awareness of the risk of death: 14th
    Report of the Law Revision Committee, (1980), para. 31, adopted in the
    Criminal Code, for England and Wales, (Law Com. No. 177), (1986), clause
    54(1). This solution was supported by the House of Lords Select Committee
    on Murder and Life Imprisonment. HL Paper 78-1, 1989, par 68.

    Having made these observations I make clear that I am in full
    agreement with the judgment of Lord Hutton which in my view accurately
    states the applicable law.

    LORD HUTTON

    My Lords,

    The appeals before your Lordships' House relate to the liability of a
    participant in a joint criminal enterprise when another participant in that
    enterprise is guilty of a crime, the commission of which was not the purpose
    of the enterprise.

    In the case of Powell and Daniels the purpose of the joint enterprise
    was to purchase drugs from a drug dealer. Three men, including the two
    appellants, Powell and Daniels, went to purchase drugs from a drug dealer,
    but having gone to his house for that purpose, the drug dealer was shot dead
    when he came to the door. The Crown was unable to prove which of the
    three men fired the gun which killed the drug dealer, but it was the Crown
    case that if the third man fired the gun, the two appellants were guilty of
    murder because they knew that the third man was armed with a gun and
    realised that he might use it to kill or cause really serious injury to the drug
    dealer.

    In the course of summing up to the jury at the trial the Recorder of
    London said:

    "If B or C realised, without agreeing to such conduct being
    used, that A may kill or intentionally inflict serious injury and
    they nevertheless continue to participate with A in the venture,
    that will amount to a sufficient mental element for B or C to be
    guilty of murder if A with the requisite intent kills in the
    course of the venture. In those circumstances B and C have
    lent themselves to the enterprise and by so doing have given
    assistance and encouragement to A in carrying out an enterprise
    which they realised may involve murder. These are general
    principles which must be applied to the facts of this case."

    - 8 -

    Powell and Daniels were convicted of murder and their appeals were rejected
    by the Court of Appeal, and the question certified for the opinion of your
    Lordships' House is:

    "Is it sufficient to found a conviction for murder for a
    secondary party to a killing to have realised that the primary
    party might kill with intent to do so or must the secondary
    party have held such intention himself?"

    In the case of English the purpose of the joint enterprise in which he and
    another young man, Weddle. took part was to attack and cause injury with
    wooden posts to a police officer, Sergeant Forth, and in the course of the
    attack Weddle used a knife with which he stabbed Sergeant Forth to death.

    It was a reasonable possibility that English had no knowledge that
    Weddle was carrying a knife, and on this basis the learned trial judge,
    Owen J., stated in his summing up to the jury:

    "If he did not know of the knife then you have to consider
    whether nevertheless he knew that there was a substantial risk
    that Weddle might cause some really serious injury with the
    wooden post which was used in the manner which you find it
    to have been used. So there is the question; 'Has the
    Prosecution proved' - and this is an alternative, of course -
    'that English joined in an unlawful attack on the sergeant
    realising at that time that there was a substantial risk that in
    that attack Weddle might kill or at least cause some really
    serious injury to the sergeant. If no, not guilty,"

    The judge then, in effect, directed the jury that if they answered that
    question in the affirmative they should find English guilty of murder.

    Weddle and English were convicted of murder and their appeals were
    rejected by the Court of Appeal. English now appeals to your Lordships'
    House and the two questions certified for the opinion of the House are as
    follows:

    "(i) Is it sufficient to found a conviction for murder for a
    secondary party to a killing to have realised that the
    primary party might kill with intent to do so or with
    intent to cause grievous bodily harm or must the
    secondary party have held such an intention himself?

    (ii) Is it sufficient for murder that the secondary party
    intends or foresees that the primary party would or may
    act with intent to cause grievous bodily harm, if the
    lethal act carried out by the primary party is

    -9-

    fundamentally different from the acts foreseen or

    intended by the secondary party?"

    The question certified in the appeals of Powell and Daniels and the first
    question certified in the appeal of English raise the issue whether foresight of
    a criminal act which was not the purpose of the joint enterprise (in the case
    of Powell and Daniels the use of a gun. and in the case of English the use of
    a knife) is sufficient to impose criminal liability for murder on the secondary
    party in the event that the jury find that the primary party used the weapon
    with intent to kill or cause really serious harm.

    In the case of Powell and Daniels the Crown case was that the two
    appellants knew that the third man was armed with a gun, and the Crown
    accepted that if the jury did not find this knowledge the appellants would not
    be guilty of murder. But in the case of English the Crown case was that,
    even if he did not know that Weddle had a knife, English foresaw that Weddle
    would cause really serious injury to the police officer, and that this foresight
    was sufficient to impose criminal liability upon him for the murder.
    Accordingly the second question arises in the case of English and that question
    is. in essence, whether the secondary party is guilty of murder if he foresaw
    that the other person taking part in the enterprise would use violence that
    would cause really serious injury, but did not foresee the use of the weapon
    that was used to carry out the killing.

    My Lords, the first question gives rise, in my opinion, to two issues.
    The first issue is whether there is a principle established in the authorities that
    where there is a joint enterprise to commit a crime, foresight or contemplation
    by one party to the enterprise that another party to the enterprise may in the
    course of it commit another crime, is sufficient to impose criminal liability for
    that crime if committed by the other party even if the first party did not intend
    that criminal act to be carried out. (I shall consider in a later part of this
    judgment whether the foresight is of a possibility or of a probability.) The
    second issue is whether, if there be such an established principle, it can stand
    as good law in the light of the decisions of this House that foresight is not
    sufficient to constitute the mens rea for murder in the case of the person who
    actually causes the death and that guilt only arises if that person intends to kill
    or cause really serious injury.

    My Lords, I consider that there is a strong line of authority that where
    two parties embark on a joint enterprise to commit a crime, and one party
    foresees that in the course of the enterprise the other party may carry out,
    with the requisite mens rea, an act constituting another crime, the former is
    liable for that crime if committed by the latter in the course of the enterprise.
    This was decided by the Court of Appeal, constituted by five judges, in
    Reg. v. Smith (Wesley) [1963] 1 W.L.R. 1200. In that case after an argument
    in a public-house, where the appellant and three other men had been causing
    a disturbance, the appellant and one of the other men went outside where they
    collected and threw bricks through the glass door of the premises, in order to

    - 10 -

    "tear up the joint." While they were so doing, one of the remaining two men,
    who were still inside, continued the argument which developed into a fight in
    the course of which one of them. A., stabbed the barman with a knife, killing
    him. At the time of the stabbing the appellant was outside the premises, but
    he knew that the man who stabbed the barman was carrying the knife on his
    person. All four men were charged with murder. The trial judge directed the
    jury:

    "Assuming that one of the four knifed the barman, assuming
    you are satisfied that it was done unlawfully in the course of an
    assault upon him, was [the appellant] taking part in a general
    attack on the bar directed in part at the barman, so as to make
    him a party to the general assault in some way upon [the
    deceased barman]? . . . Manslaughter is unlawful killing
    without intent to kill or do grievous bodily harm. Anybody
    who is a party to an attack which results in an unlawful killing
    ... is a party to the killing."

    The appellant was convicted of manslaughter.

    In delivering the judgment of the Court of Appeal Slade J. referred to
    the direction of the trial judge that: "Anybody who is a party to an attack
    which results in an unlawful killing ... is a party to the killing." Slade J.
    then stated, at p. 1205:

    "In the view of this court, that is a wholly unexceptionable
    direction upon the law except, of course, where the act can be
    said to be wholly outside the subject-matter of the concerted
    agreement. The term 'agreement,' 'confederacy,' 'acting in
    concert,' and 'conspiracy,' all pre-suppose an agreement
    express or by implication to achieve a common purpose, and so
    long as the act done is within the ambit of that common
    purpose anyone who takes part in it, if it is an unlawful killing,
    is guilty of manslaughter. That does not mean that one cannot
    hypothesise a case in which there is an act which is wholly
    outside the scope of the agreement, in which case no doubt
    different considerations might apply; but the judge was not
    dealing with that case at all."

    And, at p. 1206:

    "The grounds of appeal in this case although worded in
    different ways really, as I understand them, amount to the same
    thing; that is, that the use of a knife by Atkinson in this case
    was a departure, that is to say, assuming against Smith, as
    must be assumed in the light of the jury's verdict, that he was
    a party to some concerted action being taken against the
    barman, he certainly was not a party to the use upon the

    - 11 -

    barman of a knife which resulted in the barman's death. It is
    significant, as I have shown by reading Smith's own statement,
    that he knew that Atkinson carried a knife. Indeed, I think he
    knew that one of the other man carried a cut-throat razor. It
    must have been clearly within the contemplation of a man like
    Smith who, to use one expression, had almost gone berserk
    himself to have left the public-house only to get bricks to tear
    up the joint, that if the bar tender did his duty to quell the
    disturbance and picked up the night stick, anyone whom he
    knew had a knife in his possession, like Atkinson, might use it
    on the barman, as Atkinson did. By no stretch of imagination,
    in the opinion of this court, can that be said to be outside the
    scope of the concerted action in this case.
    In a case of this
    kind it is difficult to imagine what would have been outside the
    scope of the concerted action, possibly the use of a loaded
    revolver, the presence of which was unknown to the other
    parties; but that is not this case, and I am expressing no
    opinion about that. The court is satisfied that anything which
    is within the ambit of the concerted arrangement is the
    responsibility of each party who chooses to enter into the
    criminal purpose." (emphasis added)

    Therefore I consider that in Reg. v. Smith the Court of Appeal
    recognised that the secondary party will be guilty of unlawful killing
    committed by the primary party with a knife if he contemplates that the
    primary party may use such a weapon.

    In Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110 the primary
    party (Anderson) killed the victim with a knife. The defence of the secondary
    party (Morris) was that even though he may have taken part in a joint attack
    with Anderson to beat up the victim, he did not know that Anderson was
    armed with a knife. In his summing up the trial judge told the jury that they
    could convict Morris of manslaughter even though he had no idea that
    Anderson had armed himself with a knife. The Court of Appeal held that this
    was a misdirection in respect of Morris and quashed his conviction for
    manslaughter.

    In delivering the judgment of the Court of Appeal Lord Parker C.J.
    accepted, at p. 118, the principle formulated by Mr. Geoffrey Lane Q.C. (as
    he then was) on behalf of Morris:

    "where two persons embark on a joint enterprise, each is liable
    for the acts done in pursuance of that joint enterprise, that that
    includes liability for unusual consequences if they arise from
    the execution of the agreed joint enterprise but (and this is the
    crux of the matter) that, if one of the adventurers goes beyond
    what had been tacitly agreed as part of the common enterprise,
    his co-adventurer is not liable for the consequences of that

    - 12 -

    unauthorised act. Finally, he says it is for the jury in every
    case to decide whether what was done was part of the joint
    enterprise, or went beyond it and was in fact an act
    unauthorised by that joint enterprise."

    As a matter of strict analysis there is. as Professor J.C. Smith pointed
    out in his commentary on Reg. v. Wakely [1990] Crim. L.R. 119, 120, a
    distinction between a party to a common enterprise contemplating that in the
    course of the enterprise another party may use a gun or knife and a parry
    tacitly agreeing that in the course of the enterprise another party may use such
    a weapon. In many cases the distinction will in practice be of little
    importance because as Lord Lane C.J. observed in Reg. v. Wakely, at p. 120,
    with reference to the use of a pick axe handle in a burglary, "Foreseeability
    that the pick axe handle might be used as a weapon of violence was practically
    indistinguishable from tacit agreement that the weapon should be used for that
    purpose." Nevertheless it is possible that a case might arise where a party
    knows that another party to the common enterprise is carrying a deadly
    weapon and contemplates that he may use it in the course of the enterprise,
    but, whilst making it clear to the other party that he is opposed to the weapon
    being used, nevertheless continues with the plan. In such a case it would be
    unrealistic to say that, if used, the weapon would be used with his tacit
    agreement. However it is clear from a number of decisions, in addition to the
    judgment of the Court of Appeal in Reg. v. Smith [1963] 1 W.L.R. 1200, that
    as stated by the High Court of Australia in McAuliffe v. The Queen (1995)
    69 A.L.J.R. 621, 624 (in a judgment to which I will refer later in more detail)
    "The scope of the common purpose is to be determined by what was
    contemplated by the parties sharing that purpose." Therefore when two
    parties embark on a joint criminal enterprise one party will be liable for an act
    which he contemplates may be carried out by the other party in the course of
    the enterprise even if he has not tacitly agreed to that act.

    The principle stated in Reg. v. Smith was applied by the Privy Council
    in Chan Wing-Siu v. The Queen [1985] AC 168 in the judgment delivered
    by Sir Robin Cooke who stated, at p.175G:

    "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,
    authorization, which may be express or 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."

    - 13 -

    The principle stated by Sir Robin Cooke in Chan Wing-Siu's case was
    followed and applied in the judgment of the Court of Appeal in Reg. v. Hyde
    [1991] 1 Q.B. 134, where Lord Lane C.J. took account of Professor Smith's
    comment in Reg. v. Wakeley that there is a distinction between tacit agreement

    and foresight and made it clear that the latter is the proper test.


    In Hui Chi-ming v. The Queen [1992] 1 AC 34 the Privy Council
    again applied the principle stated by Sir Robin Cooke in Chan Wing-Siu v.
    The Queen
    and in delivering the judgment of the Board Lord Lowry stated,
    at p.53B:

    "The defendant's second point relies on Sir Robin Cooke's use
    of the word 'authorisation' as a synonym for contemplation in
    the passage already cited from his judgment in Chan Wing-Siu
    v. The Queen
    [1985] AC 168, 175. 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."

    In McAuliffe v. The Queen (1995) 69 A.L.J.R. 621 the High Court of
    Australia has recently stated that the test for determining whether a crime falls
    within the scope of a joint enterprise is now the subjective test of
    contemplation and the Court stated, at p.624:

    "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."

    - 14 -

    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.

    I would add that, in my opinion, Lord Parker in Reg. v. Anderson;
    Reg. v. Morris
    [1966] 2 Q.B. 110, having accepted the principle formulated
    by Mr. Lane, made it clear in other parts of the judgment that he was not
    intending to depart from the principle in Reg. v. Smith, because immediately
    after stating Mr. Lane's formulation Lord Parker said at p. 119:

    "In support of that, he refers to a number of authorities
    to which this court finds it unnecessary to refer in detail, which
    in the opinion of this court shows that at any rate for the last
    130 or 140 years that has been the true position. This matter
    was in fact considered in some detail in Reg. v. Smith (Wesley),
    heard by a court of five judges presided over by Hilbery J., in
    which Slade J. gave the judgment of the court. Reg. v. Smith
    (Wesley)
    was referred to at some length in the later decision in
    this court in Reg. v. Betty; it is unnecessary to go into that case
    in any detail. It followed the judgment of Slade J. in Reg. v.
    Smith (Wesley),
    and it did show the limits of the general
    principle which Mr. Lane invokes in the present case. In Reg.
    v. Smith (Wesley)
    the co-adventurer who in fact killed was
    known by the defendant to have a knife, and it was clear on the
    facts of that case that the common design involved an attack on
    a man, in that case a barman, in which the use of a knife
    would not be outside the scope of the concerted action.
    Reference was there made to the fact that the case might have
    been different if in fact the man using the knife had used a
    revolver, a weapon which he had, unknown to Smith.

    "The court in Reg. v. Betty approved entirely of what had been
    said in Reg. v. Smith (Wesley), and in fact added to it."

    Later at p. 120B I consider that Lord Parker applied the test of foresight when
    he stated:

    "It seems to this court that to say 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 is
    something which would revolt the conscience of people today."

    Therefore I consider that the judgment in Reg. v. Anderson was not
    intended to constitute a departure from the principle stated in Reg. v. Smith,

    - 15 -

    and that the acceptance of Mr. Lane's test was regarded by the Court of
    Appeal as an alternative way of formulating the principle stated in Reg. v.
    Smith,
    although as Professor Smith has pointed out, as a matter of strict
    analysis, a distinction can be drawn between the two tests.

    The second issue which arises on these appeals is whether the line of
    authority exemplified by Reg. v. Smith and Chan Wing-Siu is good law in the
    light of the decisions of this House in Reg. v. Moloney [1985] AC 905 and
    Reg. v. Hancock [1986] AC 455. In the latter case Lord Scarman, referring
    to Moloney, stated, at p. 471:

    "First, the House cleared away the confusions which had
    obscured the law during the last 25 years laying down
    authoritatively that the mental element in murder is a specific
    intent, the intent to kill or to inflict serious bodily harm.
    Nothing less suffices: and the jury must be sure that the intent
    existed when the act was done which resulted in death before
    they can return a verdict of murder.

    "Secondly, the House made it absolutely clear that foresight of
    consequences is no more than evidence of the existence of the
    intent: it must be considered, and its weight assessed, together
    with all the evidence in the case. Foresight does not
    necessarily imply the existence of intention, though it may be
    a fact from which, when considered with all the other evidence,
    a jury may think it right to infer the necessary intent. Lord
    Hailsham of St. Marylebone L.C. put the point succinctly and
    powerfully in his speech in Reg. v. Moloney [1985] AC 905,
    913: 'I conclude with the pious hope that your Lordships will
    not again have to decide that foresight and foreseeability are
    not the same thing as intention although either may give rise to
    an irresistible inference of such, and that matters which are
    essentially to be treated as matters of inference for a jury as to
    a subjective state of mind will not once again be erected into a
    legal presumption. They should remain, what they always
    should have been, part of the law of evidence and inference to
    be left to the jury after a proper direction as to their weight,
    and not part of the substantive law.'

    "Thirdly, the House emphasised that the probability of the
    result of an act is an important matter for the jury to consider
    and can be critical in their determining whether the result was
    intended."

    In reliance upon Reg. v. Moloney and Reg. v. Hancock Mr. Feinberg,
    on behalf of the appellants Powell and Daniels, submitted to this House, as he
    submitted to the Court of Appeal, that as a matter of principle there is an

    - 16-

    anomaly in requiring proof against a secondary party of a lesser mens rea than
    needs to be proved against the principal who commits the actus reus of
    murder. If foreseeability of risk is insufficient to found the mens rea of
    murder for a principal then the same test of liability should apply in the case
    of a secondary party to the joint enterprise. Mr. Feinberg further submitted
    that it is wrong for the present distinction in mental culpability to operate to
    the disadvantage of a party who does not commit the actus reus and that there
    is a manifest anomaly where there is one test for a principal and a lesser test
    for a secondary party.

    A similar argument had previously been rejected by the Court of
    Appeal in Reg. v. Ward (1986) 85 Cr.App.R. 71 and in Reg. v. Slack [1989]
    Q.B. 775. In Reg. v. Ward, Lord Lane C.J. stated, at pp. 76-77:

    "It is submitted by Mr. Steer in regard to that ground of appeal
    that the decisions of the House of Lords in Reg. v. Moloney
    and Reg. v. Hancock have had the effect of completely altering
    the law relating to joint enterprise. The way in which he put
    it was this. We asked him to dictate the submission so we
    could write it down. No man, he submits, can be convicted of
    murder unless it is specifically decided against him that he had
    a murderous intent and that could only be decided against him
    if the judge directed the jury that that was what they had to
    find.

    "Each member of this Court is bound to confess that he was
    unable to understand the submission. It is enough to say that
    we do not consider that the cases of Reg. v. Moloney and Reg.
    v. Hancock
    have had any effect at all upon the well-known and
    well-established principles of joint enterprise: in short, the
    principle set out in Reg. v. Anderson; Reg. v. Morris (1966) 50
    Cr. App. R. 216, [1966] 2 Q.B. 110 still holds good . . .

    "We are told that the learned judge may have been equipped
    with the opinion of the Judicial Committee of the Privy Council
    in a case called Chan Wing-Siu v. The Queen [1985] AC 168.
    If that is so, the learned judge accurately reflected the view of
    their Lordships in that case in the passage which I have read.

    "It was suggested by Mr. Steer that the decision in that case,
    which came from Hong Kong, is not in accordance with the
    decisions of the House of Lords in Reg. v. Moloney and Reg.
    v. Hancock.
    We disagree. We think that what appears in that
    case, if we may say so respectfully, is good law.

    In Reg. v. Slack [1989] Q.B. 775, Lord Lane C.J. stated, at p.780:

    - 17 -

    "Chan Wing-Siu v. The Queen [1985] AC 168 was
    considered and approved by this court in Reg. v. Ward (1986)
    85 Cr. App. R. 71. The appellant's submission in that case
    was that the decisions of the House of Lords in Reg. v.
    Moloney
    [1985] AC 905 and Reg. v. Hancock [1986] A.C.
    455 had the effect of completely altering the law relating to
    joint enterprise: that no man can be convicted of murder unless
    it is specifically decided against him that he had a murderous
    intent; since intent had to be read against the decisions in Reg.
    v
    . Moloney [1985] AC 905 and Reg. v. Hancock [1986A.C.
    455 the jury ought to be directed on the basis of those cases.

    "This court in Reg. v. Ward (1986) 85 Cr.App.R. 71 reiterated
    the passage from Reg. v. Anderson; Reg. v. Morris [1966] 2
    Q.B. 110, 118-119, cited above and went on to hold that Reg.
    v. Moloney
    [1985] AC 905 and Reg. v. Hancock [1986] A.C.
    455 had had no effect on the well known and well established
    principles of joint enterprise."

    As Lord Lane observed in Reg. v. Slack, p. 780H, difficulties had
    arisen from the judgment of the Court of Appeal in Reg. v. Barr (1986) 88
    Cr.App.R. 362. It appears from the facts that violent acts by all three
    defendants, who were burglars, caused the death of the householder. The trial
    judge directed the jury as though it was not necessary for a defendant charged
    with murder to possess himself the necessary intent either to kill or do serious
    bodily harm to the victim: it was enough to convict him of murder if he
    contemplated that one of his co-defendants had one of these intents and that
    he foresaw the possibility of that intent being carried into effect by that
    person.

    The Court of Appeal held that this was a misdirection and quashed the
    convictions, Watkins L.J. stating, at p.369:

    "where it is appropriate to direct a jury upon foreseeability of
    consequence, the jury must be told that evidence of such
    foreseeability does no more than assist the jury to determine
    whether a defendant had at the requisite time an intention either
    to kill or to do serious harm to the victim.

    "Unwittingly, the judge with regard to a time prior to the
    burglary, unaided by those authorities, because they were
    decided after he had directed the jury in the present case,
    seems to have directed them as though it was not necessary for
    a defendant charged with murder himself to possess one of the
    necessary intents: it was enough to convict him if he
    contemplated that one of his co-accused had one of those

    - 18 -

    intents and that he no more than foresaw the possibility of that
    intent being carried into effect by that person."

    I consider that the judge's summing up contained a misdirection to the
    extent that it could be read to suggest that participants in a joint venture which
    led to a killing would all be guilty of murder even if none of them possessed
    the intent to kill or do serious bodily harm. But I further consider, with
    respect, that the judgment of the Court of Appeal was erroneous to the extent
    that it suggests that if A kills with the requisite intent to kill or cause serious
    bodily harm, B a participant in the joint venture cannot be guilty of murder
    unless he also intends death or serious bodily harm to the victim.

    Therefore the decision in Reg. v. Barr should not be followed in so far as it
    relates to the liability of a secondary party who is a participant in a joint
    enterprise.

    In Reg. v. Smith [1988] Crim.L.R. 616 it appears that Reg. v. Ward
    85 Cr.App.R. 71 was not cited to the Court of Appeal and its decision in that
    case, that specific intent to cause grievous bodily harm must be proved against
    a secondary party to convict him of that offence where the grievous bodily
    harm has been caused by another party to the joint enterprise to attack the
    victim, is also erroneous and should not be followed.

    Before setting out the terms in which the Court of Appeal rejected the
    argument on behalf of the appellants Powell and Daniels based on Reg. v.
    Moloney
    [1985] AC 905 and Reg. v. Hancock [1986] AC 455 I would
    first refer to the rejection of another argument advanced on behalf of the
    appellants in reliance on the judgments of Woolf J. at first instance and Lord
    Scarman in this House in Gillick v. West Norfolk and Wisbech Area Health
    Authority
    [1984] Q.B. 581; [1986] AC 112, 190E to the effect that whether
    or not a doctor who gives contraceptive advice or treatment to a girl under the
    age of 16 years could be guilty of aiding and abetting the commission of
    unlawful sexual intercourse would depend on his intention. The Court of
    Appeal rejected this argument in this case on the grounds that Gillick was a
    case where there was a civil claim for a declaration and the situations
    considered were remote from a common enterprise culminating in murder.
    My Lords, I agree, and I consider that a doctor exercising bona fide his
    clinical judgment cannot be regarded as engaging in a joint criminal enterprise
    with the girl.

    Returning to the rejection in the Court of Appeal of the appellants'
    argument in reliance on Reg. v. Moloney and Reg. v. Hancock, Lord Taylor
    of Gosforth C.J. stated, at p.22a:

    "we feel bound to follow and apply the Hyde formulation
    having regard to the approval which it has received in a
    number of decisions in this court and to the fact that it is in

    - 19 -

    accordance with the House of Lords' decision in Maxwell. If
    the result is an unacceptable anomaly, it must now be for the
    House of Lords or the legislature to say so."

    My Lords, I recognise that as a matter of logic there is force in the
    argument advanced on behalf of the appellants, and that on one view it is
    anomalous that if foreseeability of death or really serious harm is not
    sufficient to constitute mens rea for murder in the party who actually carries
    out the killing, it is sufficient to constitute mens rea in a secondary party. But
    the rules of the common law are not based solely on logic but relate to
    practical concerns and, in relation to crimes committed in the course of joint
    enterprises, to the need to give effective protection to the public against
    criminals operating in gangs. As Lord Salmon stated in Reg. v. Majewski
    [1977] AC 443,482E, in rejecting criticism based on strict logic of a rule of
    the common law, ''this is the view that has been adopted by the common law
    of England, which is founded on common sense and experience rather than
    strict logic."

    In my opinion there are practical considerations of weight and
    importance related to considerations of public policy which justify the
    principle stated in Chan Wing-Siu and which prevail over considerations of
    strict logic. One consideration is that referred to by Lord Lane C.J. in
    Reg. v. Hyde [1991] 1 Q.B. 134, 139c, where he cited with approval the
    observation of Professor Smith in his comment on Reg. v. Wakeley:

    "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. As Professor Smith points out, B has in those
    circumstances lent himself to the enterprise and by so doing he
    has given assistance and encouragement to A in carrying out an
    enterprise which B realises may involve murder."

    A further consideration is that, unlike the principal party who carries out the
    killing with a deadly weapon, the secondary party will not be placed in the
    situation in which he suddenly has to decide whether to shoot or stab the third
    person with intent to kill or cause really serious harm. There is, in my
    opinion, an argument of considerable force that the secondary party who takes
    part in a criminal enterprise (for example, the robbery of a bank) with
    foresight that a deadly weapon may be used, should not escape liability for
    murder because he, unlike the principal party, is not suddenly confronted by
    the security officer so that he has to decide whether to use the gun or knife or
    have the enterprise thwarted and face arrest. This point has been referred to
    in cases where the question has been discussed whether in order for criminal
    liability to attach the secondary party must foresee an act as more likely than

    - 20 -

    not or whether it suffices if the secondary party foresees the act only as a
    possibility.

    In Chan Wing-Sui v. The Queen [1985] AC 168 counsel for the
    Crown submitted, at p. 172:

    "Regard must be had to public policy considerations.
    Public policy requires that when a man lends himself to a
    criminal enterprise knowing it involves the possession of
    potentially murderous weapons which in fact are used by his
    partners with murderous intent, he should not escape the
    consequences to him of their conduct by reliance upon the
    nuances of prior assessment of the likelihood that such conduct
    will take place. In these circumstances an accomplice who
    knowingly takes the risk that such conduct might, or might
    well, take place in the course of that joint enterprise should
    bear the same responsibility for that conduct as those who use
    the weapons with the murderous intent."

    Sir Robin Cooke stated, at p.177D:

    "What public policy requires was rightly identified in the
    submissions for the Crown. Where a man lends himself to a
    criminal enterprise knowing that potentially murderous weapons
    are to be carried, and in the event they are in fact used by his
    partner with an intent sufficient for murder, he should not
    escape the consequences by reliance upon a nuance of prior
    assessment, only too likely to have been optimistic."

    A somewhat similar viewpoint was stated by Professor Glanville
    Williams in Criminal Law, The General Part, 2nd ed. p. 397 (cited by
    Stephen J. in his judgment in the High Court of Australia in Johns v. The
    Queen
    (1980) 143 C.L.R. 108, 119): "It seems that a common intent to
    threaten violence is equivalent to a common intent to use violence, for the one
    so easily leads to the other."

    In McAuliffe v. The Queen (1995) 69 A.L.J.R. 621 the High Court of
    Australia referred to the decision in Johns and stated, at p.626:

    "There was no occasion for the Court to turn its attention to
    the situation where one party foresees, but does not agree to,
    a crime other than that which is planned, and continues to
    participate in the venture. However, the secondary offender in
    that situation is as much a party to the crime which is an
    incident of the agreed venture as he is when the incidental
    crime falls within the common purpose. Of course, in that
    situation the prosecution must prove that the individual
    concerned foresaw that the incidental crime might be

    - 21 -

    committed and cannot rely upon the existence of the common
    purpose as establishing that state of mind. But there is no
    other relevant distinction. As Sir Robin Cooke observed, the
    criminal culpability lies in the participation in the joint criminal
    enterprise with the necessary foresight and that is so whether
    the foresight is that of an individual party or is shared by all
    parties. That is in accordance with the general principle of the
    criminal law that a person who intentionally assists in the
    commission of a crime or encourages its commission may be
    convicted as a party to it."

    Therefore for the reasons which I have given I would answer the
    certified question of law in the appeals of Powell and Daniels and the first
    certified question in the appeal of English by stating that (subject to the
    observations which I make in relation to the second certified question in the
    case of English) 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. Accordingly I would dismiss the appeals of Powell and Daniels.

    The second certified question in the appeal of English arises because
    of the last sentence in the following passage in the trial judge's summing up
    to the jury to which I have previously referred:

    "If he had the knife and English knew that Weddle had the
    knife, what would have been — must have been — in the mind
    of English, bearing in mind whatever condition you find that he
    was in as a result of drink? So you have to ask that question.
    If he did not know of the knife then you have to consider
    whether nevertheless he knew that there was a substantial risk
    that Weddle might cause some really serious injury with the
    wooden post which was used in the manner which you find it
    to have been used."

    In Reg. v. Hyde [1991] 1 Q.B. 134, as already set out, Lord Lane stated, at
    p.139c:

    "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."

    However in Hyde the attack on the victim took place without weapons
    and the Crown case was that the fatal blow to the victim's head was a heavy
    kick. The problem raised by the second certified question is that, if a jury is
    directed in the terms stated in Hyde, without any qualification (as was the jury

    - 22 -

    in English), 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.

    Mr. Sallon, for the appellant, advanced to your Lordships' House the
    submission (which does not appear to have been advanced in the Court of
    Appeal) that in a case such as the present one where the primary party kills
    with a deadly weapon, which the secondary party did not know that he had
    and therefore did not foresee his use of it, the secondary party should not be
    guilty of murder. He submitted that to be guilty under the principle stated in
    Chan Wing-Siu the secondary party must foresee an act of the type which the
    principal party committed, and that in the present case the use of a knife was

    fundamentally different to the use of a wooden post.

    My Lords, I consider that this submission is correct. It finds strong
    support in the passage of the judgment of Lord Parker in Reg. v. Anderson;
    Reg. v. Morris
    [1966] 2 Q.B. 110, 120B which I have set out earlier, but
    which it is convenient to set out again in this portion of the judgment:

    "It seems to this court that to say 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 is
    something which would revolt the conscience of people today."

    The judgment in Chan Wing-Siu's case [1985] AC 168 also supports
    the argument advanced on behalf of the appellant because Sir Robin Cooke
    stated, at p.175F:

    "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." (emphasis added).

    There is also strong support for the appellant's submission in the
    decision of Carswell J. (as he then was), sitting without a jury in the Crown
    Court in Northern Ireland, in Reg. v. Gamble [1989] N.I. 268. In that case
    the four accused were all members of a terrorist organisation, the Ulster
    Volunteer Force, who had a grievance against a man named Patton. The four
    accused entered upon a joint venture to inflict punishment upon him, two of
    them, Douglas and McKee, contemplating that Patton would be subjected to
    a severe beating or to "kneecapping" (firing a bullet into his kneecap). In the
    course of the attack upon him Patton was brutally murdered by the other two
    accused. His throat was cut with a knife with great force which rapidly
    caused his death. In addition he was shot with four bullets, and two of the

    - 23 -

    bullet wounds would have been fatal had his death not been caused by the
    cutting of his throat. Douglas and McKee had not foreseen killing with a
    knife or firing of bullets into a vital part of the body. It was argued,
    however, on behalf of the prosecution that the joint enterprise of committing
    grievous bodily harm, combined with the rule that an intent to cause such
    harm grounded a conviction for murder in respect of a resulting death, was
    sufficient to make the two accused liable for murder notwithstanding that they
    had not foreseen the actions which actually caused death. After citing the
    relevant authorities Carswell J. rejected this argument and stated, at p.283f:

    "When an assailant 'kneecaps' his victim, i.e. discharges a
    weapon into one of his limbs, most commonly into the knee
    joint, there must always be the risk that it will go wrong and
    that an artery may be severed or the limb may be so damaged
    that gangrene sets in, both potentially fatal complications. It
    has to be said, however, that such cases must be very rare
    among victims of what is an abhorrent and disturbingly
    frequent crime. Persons who take a part in inflicting injuries
    of this nature no doubt do not generally expect that they will
    endanger life, and I should be willing to believe that in most
    cases they believe that they are engaged in a lesser offence than
    murder.

    "The infliction of grievous bodily harm came within the
    contemplation of Douglas and McKee, and they might therefore
    be regarded as having placed themselves within the ambit of
    life-threatening conduct. It may further be said that they must
    be taken to have had within their contemplation the possibility
    that life might be put at risk. The issue is whether it follows
    as a consequence that they cannot be heard to say that the
    murder was a different crime from the attack which they
    contemplated, and so cannot escape liability for the murder on
    the ground that it was outside the common design.

    "To accept this type of reasoning would be to fix an accessory
    with consequences of his acts which he did not foresee and did
    not desire or intend. The modern development of the criminal
    law has been away from such an approach and towards a
    greater emphasis on subjective tests of criminal guilt, as Sir
    Robin Cooke pointed out in Chan Wing-Sui. Although the rule
    remains well entrenched that an intention to inflict grievous
    bodily harm qualifies as the mens rea of murder, it is not in my
    opinion necessary to apply it in such a way as to fix an
    accessory with liability for a consequence which he did not
    intend and which stems from an act which he did not have
    within his contemplation. I do not think that the state of the
    law compels me to reach such a conclusion, and it would not

    - 24 -

    in my judgment accord with the public sense of what is just and
    fitting."

    In my opinion this decision was correct in that a secondary party who
    foresees grievous bodily harm caused by kneecapping with a gun should not
    be guilty of murder where, in an action unforeseen by the secondary party,
    another party to the criminal enterprise kills the victim by cutting his throat
    with a knife. The issue (which is one of fact after the tribunal of fact has
    directed itself, or has been directed, in accordance with the statement of Lord
    Parker in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, 120B)
    whether a secondary party who foresees the use of a gun to kneecap, and
    death is then caused by the deliberate firing of the gun into the head or body
    of the victim, is guilty of murder is more debatable although, with respect, I
    agree with the decision of Carswell J. on the facts of that case.

    Accordingly, in the appeal of English, I consider that the direction of
    the learned trial judge was defective (although this does not constitute a
    criticism of the judge, who charged the jury in conformity with the principle
    stated in Hyde) because in accordance with the principle stated by Lord Parker
    in Reg. v. Anderson, at p.120b, he did not qualify his direction on foresight
    of really serious injury by stating that if the jury considered that the use of the
    knife by Weddle was the use of a weapon and an action on Weddle's part
    which English did not foresee as a possibility, then English should not be
    convicted of murder. As the unforeseen use of the knife would take the
    killing outside the scope of the joint venture the jury should also have been
    directed, as the Court of Appeal held in Reg. v. Anderson, that English should
    not be found guilty of manslaughter.

    On the evidence the jury could have found that English did not know
    that Weddle had a knife. Therefore the judge's direction made the conviction
    of English unsafe and in my opinion his appeal should be allowed and the
    conviction for murder quashed.

    English was guilty of a very serious attack on Sergeant Forth, striking
    him a number of violent blows with a wooden post at the same time as
    Weddle attacked him with a wooden post. Therefore English was fully
    deserving of punishment for that attack, but it is unnecessary for your
    Lordships to give any further consideration to this point as English has already
    served a number of years in detention pursuant to the sentence of the trial
    judge.

    I have already stated that the issue raised by the second certified
    question in the appeal of English is to be resolved by the application of the
    principle stated by Lord Parker in Reg. v. Anderson, at p. 120B. Having so
    stated and 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

    - 25 -

    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.

    In conclusion I would wish to refer to a number of other points which
    arise from the submissions in these appeals. The first issue is what is the
    degree of foresight required to impose liability under the principle stated in
    Chan Wing-Siu [1985] AC 168. On this issue I am in respectful agreement
    with the judgment of the Privy Council in that case that the secondary party
    is subject to criminal liability if he contemplated the act causing the death as
    a possible incident of the joint venture, unless the risk was so remote that the
    jury take the view that the secondary party genuinely dismissed it as altogether
    negligible.

    Secondly, as the Privy Council also stated in Chan Wing-Siu, in
    directing the jury the trial judge need not adopt a set of fixed formulae, and
    the form of the words used should be that best suited to the facts of the
    individual case. In this judgment I have cited two passages from the judgment
    of Lord Parker in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110. One
    passage commences at p.118f, the second passage commences at p.120B.
    Trial judges have frequently based their directions to the jury in respect of the
    liability of a secondary party for an action carried out in a joint venture on the
    first passage. There is clearly no error in doing so. However in many cases
    there would be no difference in result between applying the test stated in that
    passage and the test of foresight, and if there would be a difference the test
    of foresight is the proper one to apply. I consider that the test of foresight is
    a simpler and more practicable test for a jury to apply than the test of whether
    the act causing the death goes beyond what had been tacitly agreed as part of
    the joint enterprise. Therefore, in cases where an issue arises as to whether
    an action was within the scope of the joint venture, I would suggest that it
    might be preferable for a trial judge in charging a jury to base his direction
    on the test of foresight rather than on the test set out in the first passage in
    Reg. v. Anderson; Reg v. Morris. But in a case where, although the
    secondary party may have foreseen grievous bodily harm, he may not have
    foreseen the use of the weapon employed by the primary party or the manner
    in which the primary party acted, the trial judge should qualify the test of
    foresight stated in Reg. v. Hyde [1991] 1 Q.B. 134 in the manner stated by
    Lord Parker in the second passage in Anderson v. Morris.

    As I have already observed in referring to the decision in Reg. v.
    Gamble
    [1989] N.I. 268, in applying the second passage in Reg. v. Anderson
    there will be cases giving rise to a fine distinction as to whether or not the
    unforeseen use of a particular weapon or the manner in which a particular
    weapon is used will take a killing outside the scope of the joint venture, but
    this issue will be one of fact for the common sense of the jury to decide.

    - 26 -


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKHL/1997/57.html