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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Jogee and Ruddock v The Queen (Jamaica) [2016] UKPC 7 (18 February 2016) URL: https://www.bailii.org/uk/cases/UKPC/2016/7.html Cite as: [2016] UKPC 7, [2016] 2 WLR 681 |
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[2016] UKPC 7
On appeal from: [2013] EWCA Crim 1433 and JCPC 0020 of 2015
JUDGMENT
Ruddock
(Appellant)
v
The
Queen
(Respondent)
(Jamaica)
From the Court of Appeal of Jamaica
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Hughes
Lord Toulson
Lord Thomas
JUDGMENT GIVEN ON
18 February 2016
Heard on 27, 28 and 29 October 2015
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Appellant
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Felicity Gerry QC Catarina Sjölin Adam Wagner Diarmuid Laffan (Instructed by Defence Law) |
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Respondent John McGuinness QC Duncan Atkinson (Instructed by Crown Prosecution Service Appeals and Review Unit) |
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Appellant
(
Julian Knowles QC James Mehigan (Instructed by Dorsey & Whitney (Europe) LLP) |
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Respondent Howard Stevens QC Rowan Pennington-Benton (Instructed by Charles Russell Speechlys) |
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Intervener (Just for Kids Law) Francis FitzGibbon QC Caoilfhionn Gallagher Joanne Cecil Daniella Waddoup (Instructed by Just for Kids Law) |
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Intervener (Joint Enterprise Not Guilty by Association) Timothy Moloney QC Jude Bunting (Instructed by ITN Solicitors) |
LORD HUGHES AND LORD TOULSON: (with whom Lord Neuberger, Lady Hale and Lord Thomas agree)
1.
In the language of the criminal law a person who assists or encourages
another to commit a crime is known as an accessory or secondary party. The
actual perpetrator is known as a principal, even if his role may be subordinate
to that of others. It is a fundamental principle of the criminal law that the
accessory is guilty of the same offence as the principal. The reason is not
difficult to see. He shares the physical act because even if it was not his
hand which struck the blow, ransacked the house, smuggled the drugs or forged
the cheque, he has encouraged or assisted those physical acts. Similarly he
shares the culpability precisely because he encouraged or assisted the offence.
No one doubts that if the principal and the accessory are together engaged on,
for example, an armed robbery of a bank, the accessory who keeps guard outside
is as guilty of the robbery as the principal who enters with a shotgun and
extracts the money from the staff by threat of
violence.
Nor does anyone doubt
that the same principle can apply where, as sometimes happens, the accessory is
nowhere near the scene of the crime. The accessory who funded the bank robbery
or provided the gun for the purpose is as guilty as those who are at the scene.
Sometimes it may be impossible for the prosecution to prove whether a defendant
was a principal or an accessory, but that does not matter so long as it can
prove that he participated in the crime either as one or as the other. These
basic principles are long established and uncontroversial.
2.
In the last 20 years a new term has entered the lexicon of criminal
lawyers: parasitic accessory liability. The expression was coined by Professor
Sir John Smith in a lecture later published in the Law Quarterly Review (Criminal
liability of accessories: law and law reform [1997] 113 LQR 453). He used
the expression to describe a doctrine which had been laid down by the Privy
Council in Chan Wing-Siu
v
The
Queen
[1985] AC 168 and developed in
later cases, including most importantly the decision of the House of Lords in R
v
Powell and R
v
English [1999] AC 1, [1997] UKHL 45. In Chan Wing-Siu it was held
that if two people set out to commit an offence (crime A), and in the course of
that joint enterprise one of them (D1) commits another offence (crime B), the
second person (D2) is guilty as an accessory to crime B if he had foreseen the
possibility that D1 might act as he did. D2’s foresight of that possibility
plus his continuation in the enterprise to commit crime A were held sufficient
in law to bring crime B within the scope of the conduct for which he is
criminally liable, whether or not he intended it.
3.
The appellants
Jogee
and
Ruddock
were each convicted of murder after
directions to the jury in which the trial judges sought to apply the principle
deriving from Chan Wing-Siu. In these appeals the court has been asked
to review the doctrine of parasitic accessory liability and to hold that the
court took a wrong turn in Chan Wing-Siu and the cases which have
followed it. It is argued by the appellants that the doctrine is based on a
flawed reading of earlier authorities and questionable policy arguments. The
respondents dispute those propositions and argue that even if the court were
now persuaded that the courts took a wrong turn, it should be a matter for
legislatures to decide whether to make any change, since the law as laid down
in Chan Wing-Siu has been in place in England and Wales and in other
common law jurisdictions including Jamaica for 30 years. The two appeals,
Jogee
in the Supreme Court and
Ruddock
in the Judicial Committee of the Privy
Council, were heard together.
History
4. The Accessories and Abettors Act 1861, section 8 (as amended), provides that:
“Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … shall be liable to be tried, indicted and punished as a principal offender.”
For summary offences the corresponding provision is in section 44 of the Magistrates’ Courts Act 1980.
“Disregarding ‘procuring’, it is generally accepted that these specified modes of involvement cover two types of conduct on the part of D, namely the provision of assistance and the provision of encouragement.”
9.
Subject to the question whether a different rule applies to cases of
parasitic accessory liability, the mental element in assisting or encouraging
is an intention to assist or encourage the commission of the crime and this
requires knowledge of any existing facts necessary for it to be criminal: National
Coal Board
v
Gamble [1959] 1 QB 11, applied for example in Attorney General
v
Able [1984] QB 795, Gillick
v
West Norfolk and Wisbech Area Health Authority
[1986] AC 112 and Director of Public Prosecutions for Northern Ireland
v
Maxwell
[1978] 1 WLR 1350 per Lord Lowry at 1374G-1375E, approved in the House of Lords
at 1356A; 1358F; 1359E; 1362H and echoed also at 1361D.
11.
With regard to the conduct element, the act of assistance or encouragement
may be infinitely
varied.
Two recurrent situations need mention. Firstly,
association between D2 and D1 may or may not involve assistance or
encouragement. Secondly, the same is true of the presence of D2 at the scene when
D1 perpetrates the crime. Both association and presence are likely to be
very
relevant evidence on the question whether assistance or encouragement was
provided. Numbers often matter. Most people are bolder when supported or
fortified by others than they are when alone. And something done by a group is
often a good deal more effective than the same thing done by an individual
alone. A great many crimes, especially of actual or threatened
violence,
are, whether
planned or spontaneous, in fact encouraged or assisted by supporters present
with the principal lending force to what he does. Nevertheless, neither
association nor presence is necessarily proof of assistance or encouragement; it
depends on the facts: see R
v
Coney (1882) 8 QBD 534, 540, 558.
12.
Once encouragement or assistance is proved to have been given, the
prosecution does not have to go so far as to prove that it had a positive
effect on D1’s conduct or on the outcome: R
v
Calhaem [1985] QB 808. In
many cases that would be impossible to prove. There might, for example, have
been many supporters encouraging D1 so that the encouragement of a single one
of them could not be shown to have made a difference. The encouragement might
have been given but ignored, yet the counselled offence committed. Conversely,
there may be cases where anything said or done by D2 has faded to the point of
mere background, or has been spent of all possible force by some overwhelming
intervening occurrence by the time the offence was committed. Ultimately it is
a question of fact and degree whether D2’s conduct was so distanced in time,
place or circumstances from the conduct of D1 that it would not be realistic to
regard D1’s offence as encouraged or assisted by it.
13.
An early example is the case of Hyde (1672), described in Hale’s Pleas
of the Crown (1682),
vol
1, p 537, and in Foster’s Crown Law, p 354.
This was Foster’s description and explanation:
“A, B and C ride out together with intention to rob on the highway. C taketh an opportunity to quit the company, turneth into another road, and never joineth A and B afterwards. They upon the same day commit a robbery. C will not be considered an accomplice in this fact. Possibly he repented of the engagement, at least he did not pursue it; nor was there at the time the fact was committed any engagement or reasonable expectation of mutual defence and support so far as to affect him.”
In other words, on the particular facts A and B were not regarded as having committed the robbery with C’s encouragement or assistance. Any original encouragement was regarded as having been spent and there was no other assistance. (It appears from Hale’s account that C parted from A and B at Hounslow and that the later robbery took place three miles away.)
14.
With regard to the mental element, the intention to assist or encourage
will often be specific to a particular offence. But in other cases it may not
be. D2 may intentionally assist or encourage D1 to commit one of a range of
offences, such as an act of terrorism which might take
various
forms. If so, D2
does not have to “know” (or intend) in advance the specific form which the
crime will take. It is enough that the offence committed by D1 is within the
range of possible offences which D2 intentionally assisted or encouraged him to
commit (Maxwell).
15.
In Maxwell the defendant was a member of a terrorist
organisation, the Ulster
Volunteer
Force (“UVF”). Under UVF instructions he
took part in what he knew was a planned military mission, by guiding a car containing
three or four other men on a cross country journey to a country inn on a winter
evening. He knew that they were intending to carry out some form of
violent
attack on the inn, whether by shooting, bombing or some incendiary device, and
he intentionally acted in order to help them to carry out the mission. He did
not know the precise form of attack that they were intending to carry out
(which was in fact an explosion), but it was held to be enough that he knew
that they were intending to carry out a
violent
attack on the inn and that he
intended to assist them to do so.
16.
The decision in Maxwell did not derogate from the principle
identified in para 9 that an intention to assist or encourage the commission of
an offence requires knowledge by D2 of any facts necessary to give the
principal’s conduct or intended conduct its criminal character. In Johnson
v
Youden [1950] 1 KB 544 a builder committed an offence by selling a house
for £250 more than the maximum permitted under a statutory regulation. The £250
was paid to him in advance by the purchaser. The builder then instructed a firm
of solicitors to act for him in the sale. Two of the partners in the firm had
no knowledge of the earlier payment, but they were convicted by the magistrates
of aiding and abetting the builder’s offence. Their convictions were quashed by
the Divisional Court because they had no knowledge of the facts which gave the
transaction its criminal character. They therefore lacked the mens rea to be
guilty as accessories.
19. As to first question, Foster wrote at p 369 (in a passage much cited in later authorities):
“Much hath been said by writers
who have gone before me, upon cases where a person supposed to commit a felony
at the instigation of another hath gone beyond the terms of such instigation,
or hath, in the execution,
varied
from them. If the principal totally and
substantially
varieth,
if being solicited to commit a felony of one kind he
wilfully and knowingly committeth a felony of another, he will stand single in
that offence, and the person soliciting will not be involved in his guilt. For
on his part it was no more than a fruitless ineffectual temptation. The fact
cannot with any propriety be said to have been committed under the influence of
that temptation.
But if the principal in substance
complieth with the temptation,
varying
only in circumstance of time and place,
or in the manner of execution, in these cases the person soliciting to the
offence will, if absent, be an accessary before the fact, if present a
principal.”
(Emphasis added. At the time when Foster wrote, the word “fact” was used when we would use the word “act”.)
20. As to the second question, Foster continued at p 370:
“So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be an accessary to that felony …
[Foster proceeded to give three examples. One is enough for present purposes.]
A adviseth B to rob C, he doth rob him, and in so doing, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery, killeth him. A is accessary to this murder.
…
These cases are all governed by one and the same principle. The advice, solicitation, or orders in substance were pursued, and were extremely flagitious on the part of A. The events, although possibly falling out beyond his original intention, were in the ordinary course of things the probable consequences of what B did under the influence, and at the instigation of A. And therefore, in the justice of the law, he is answerable for them.” (Foster’s emphasis)
22.
In R
v
Collison (1831) 4 Car & P 565 two men went out by
night with carts to steal apples. They were detected by the landowner’s
watchman. One of the thieves attacked him with a bludgeon which he was carrying
and caused the man severe injury. On the trial of the second thief for assault
and wounding with intent to murder, Garrow B ruled at p 566:
“To make the prisoner a principal,
the Jury must be satisfied that, when he and his companion went out with a
common illegal purpose of committing the felony of stealing apples, they also
entertained the common guilty purpose of resisting to death, or with extreme
violence,
any persons who might endeavour to apprehend them; but if they had
only the common purpose of stealing apples, and the
violence
of the prisoner’s
companion was merely the result of the situation in which he found himself, and
proceeded from the impulse of the moment, without any previous concert, the
prisoner will be entitled to an acquittal.”
This ruling highlighted the importance of identifying the
common purpose. If it was only to steal apples, the defendant was not guilty of
the greater offence with which he was charged. He was guilty of that offence
only if the common purpose included using severe
violence
to resist arrest, should
the occasion arise.
23.
Other authorities were consistent with the direction in Collison:
see R
v
Macklin (1838) 2 Lewin 225, R
v
Luck (1862) 3 F & F
483, and R
v
Turner (1864) 4 F & F 339, 341 (“on a charge of murder
there must be evidence not only of a common design to commit a felony, but a
common design quoad the homicidal act itself”, per Channell B). The position in
England and Wales was at one time complicated by the doctrine of constructive
murder known as felony murder. Under this doctrine a person was guilty of
murder if he used
violence
in furtherance of a felony which resulted in death,
whether or not he intended to cause death or serious harm. The doctrine did not
apply to misdemeanours, which included poaching. Pollock CB explained the law
as it affected accessories in R
v
Skeet (1866) 4 F & F 931, 936-937
(a case in which poachers were stopped by a gamekeeper, who was shot by one of
them):
“… the doctrine of constructive
homicide … does not apply where the only evidence is that the parties were
engaged in an unlawful purpose: not being felonious. It only applies in cases where
the common purpose is felonious, as in cases of burglary: where all the parties
are aware that deadly weapons are taken with a
view
to inflict death or commit
felonious
violence,
if resistance is offered. That doctrine arose from the
desire on the part of old lawyers to render all parties who are jointly engaged
in the commission of a felony responsible for deadly
violence
committed in the
course of its execution. But that doctrine has been much limited in later
times, and only applies in cases of felony, where there is no (sic)
evidence of a felonious design to carry out the unlawful purpose at all
hazards, and whatever may be the consequences. The possession of a gun would
not be any evidence of this, for a gun is used in poaching. And poaching itself
is only an unlawful act and a mere misdemeanour.”
“It is the common design or intention to kill in the prosecution of the unlawful object, whether it be misdemeanour or felony, which involves the others in the guilt of homicide. For, even if the common purpose is felonious, if only the actual perpetrator of the act had the intention to kill in the prosecution of the purpose, the others, who did not concur in the act, are not guilty of the offence of homicide.”
It will be seen that the expression “common design” is here treated as synonymous with shared intention. (It would have been more strictly accurate to add “or cause grievous bodily harm” after the word “kill”.)
25.
R
v
Spraggett [1960] Crim LR 840 is a more modern example of the
principle that where
violence
is used in furtherance of a criminal
venture,
a
co-adventurer will be liable only if he shared an intention to use
violence
to
resist interference or arrest. Three men were involved in the burglary of a
sub-post office. Two of them went into the building while the third waited
outside. During the burglary the owner of the shop came on the scene and was
knocked down. The appellant was convicted of burglary and assault with intent
to rob. The judge directed the jury that if the defendants jointly decided to
break into premises, each was liable for any incidental
violence.
The
appellant’s conviction was quashed. Lord Parker CJ said that the summing-up
treated it as a presumption of law that where a person was found to be acting
in concert with others to commit a burglary, it should be presumed that he was
also acting in concert with others to use
violence
in the course of the crime,
whereas the jury had to be satisfied on the evidence that there was such a
preconceived intention to use
violence.
(The commentary in the Criminal Law
Review noted that under the trial judge’s direction, a burglar who had no
intention to do anything to anyone might find himself guilty of murder.)
26.
The evidential relevance of the carrying of a weapon on a criminal
venture
has been a common theme in the case law. Its evidential strength
depends on the circumstances. As Pollock CB observed in Skeet, a
poacher’s possession of a gun did not of itself then point to more than an
intent to use it to kill game. In other circumstances it might provide powerful
evidence of an intent to use it to overcome resistance or avoid arrest. See
Professor Glanville Williams’ Criminal Law, The General Part, 2nd
ed (1961), p 397:
“The knowledge on the part of one
criminal that his companion is carrying a weapon is strong evidence of a common
intent to use
violence,
but is not conclusive.”
27.
In a line of cases the courts recognised that even where there was a
joint intent to use weapons to overcome resistance or avoid arrest, the
participants might not share an intent to cause death or really serious harm.
If the principal had that intent and caused the death of another he would be
guilty of murder. Another party who lacked that intent, but who took part in an
attack which resulted in an unlawful death, would be not guilty of murder but
would be guilty of manslaughter, unless the act which caused the death was so
removed from what they had agreed as not to be regarded as a consequence of it:
R
v
Smith (Wesley) [1963] 1 WLR 1200, R
v
Betty (1964) 48 Cr App
R 6, R
v
Anderson and R
v
Morris [1966] 2 QB 110 and R
v
Reid
(1976) 62 Cr App R 109.
28. In Wesley Smith (see pp 1205-1206) the trial judge directed the jury:
“Manslaughter is unlawful killing without an intent to kill or do grievous bodily harm. Anybody who is party to an attack which results in an unlawful killing which results in death is a party to the killing.
… a person who takes part in or
intentionally encourages conduct which results in a criminal offence will not
necessarily share the exact guilt of the one who actually strikes the blow. His
foresight of the consequences will not necessarily be the same as that of the
man who strikes the blow, the principal assailant, so that each may have a
different form of guilty mind, and that may distinguish their respective
criminal liability. Several persons, therefore, present at the death of a man
may be guilty of different degrees of crime - one of murder, others of unlawful
killing, which is manslaughter. Only he who intended that unlawful and
grievous bodily harm should be done is guilty of murder. He who intended only
that the
victim
should be unlawfully hit and hurt will be guilty of
manslaughter if death results.” (Emphasis added.)
31.
In Anderson and Morris, a fatal stabbing resulted in the
conviction of Anderson for murder and Morris for manslaughter. The evidence of
Morris’s role, if any, in the attack was unclear. The judge directed the jury
that if there was a common design to attack the
victim,
but without any intent
by Morris to kill or cause grievous bodily harm, and if Anderson, acting
outside the common design, produced a knife about which Morris had no knowledge
and used it to kill the
victim,
Morris was liable to be convicted of
manslaughter. The defendants’ appeal was heard by a Court of Criminal Appeal of
five judges, presided over by Lord Parker CJ. Mr Geoffrey Lane, QC for Morris
submitted that the authorities from about 1830 onwards established the
principle that (see p 118):
“… 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 has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act.” (Emphasis added)
“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 …
Considered as a matter of causation there may well be an overwhelming supervening event which is of such a character that it will relegate into history matters which would otherwise be looked on as causative factors.”
33.
The court in that case did not call into question what had been said in Wesley
Smith, and Lord Parker noted that it had been approved by the court in Betty.
The court was not therefore resiling from the general statement that where a
person takes part in an unlawful attack which results in death, he will be
guilty either of murder or of manslaughter according to whether he had the mens
rea for murder. But the court recognised that there could be cases where the
actual cause of death was not simply an escalation of a fight but “an
overwhelming supervening event”. That there had been such an event in Anderson
and Morris may have been a charitable
view
on the facts, but the principle
was endorsed by the court in Reid (of which the former Mr Geoffrey Lane
QC was a member).
34.
Reid and two others were tried for the murder of a colonel who was the
commander of an army training camp. The three men were alleged to be supporters
of the IRA. They went to the colonel’s house in the early hours of the morning
and rang the doorbell. The door was opened by the colonel, and one of the other
defendants immediately shot him dead. The other two men were convicted of
murder and Reid was convicted of manslaughter. All three were also convicted of
joint possession of a revolver, knife and imitation gun. Reid’s defence was
that he was not an IRA supporter and that he went with the others as an
interested but innocent spectator with no intention of causing any harm. The
jury must have rejected that defence, but must also have accepted it as possible
that he did not intend the
victim
to suffer death or serious harm. Reid
appealed against his conviction for manslaughter on the ground that there was
no evidence for finding that he intended to cause some harm but not serious
harm, and reliance was placed on Anderson and Morris. The appeal was
dismissed in a reserved judgment of a strong Court of Appeal (Lawton and
Geoffrey Lane LJJ and Robert Goff J).
“The intent with which the
appellant was in joint possession of the weapons with the others has to be
inferred from the circumstances. He did not share the murderous intent. … The
first problem for us is whether this court would be entitled to infer from the
fact of joint possession an intent to do some harm to Colonel Stevenson … If
men carrying offensive - indeed deadly - weapons go to a man’s house in the
early hours of the morning for no discernible lawful purpose, they must, in our
judgment, intend to do him harm of some kind, and the
very
least kind of harm
is of causing fright by threats to use them. The second problem is whether, on
the evidence in this case, Colonel Stevenson’s death resulted from the unlawful
and dangerous act of being in joint possession of offensive weapons. The
appellant did not intend either death or serious injury. On the jury’s findings
O’Conaill must have gone beyond anything he may have intended ….
When two or more men go out
together in joint possession of offensive weapons such as revolvers and knives
and the circumstances are such as to justify an inference that the
very
least
they intend to do with them is to use them to cause fear in another, there is,
in our judgment, always a likelihood that, in the excitement and tensions of
the occasion, one of them will use his weapon in some way which will cause
death or serious injury. If such injury was not intended by the others, they
must be acquitted of murder; but having started out on an enterprise which
envisaged some degree of
violence,
albeit nothing more than causing fright,
they will be guilty of manslaughter.” (Emphasis added.)
Chan Wing-Siu [1985] AC 168
“In the typical case [of aiding
and abetting] 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. 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 liability lies in participating in the
venture
with that foresight.”
38.
Sir Robin Cooke cited Anderson and Morris. He noted that the
Court of Criminal Appeal had reviewed a line of relevant authorities from 1830,
but no reference was made to any of them. He referred to Anderson and Morris
only for the case of one adventurer going beyond what had been agreed. He
said that in England it appeared not hitherto to have been found necessary to
analyse the test which the jury had to apply more elaborately than in the
formulation by Mr Geoffrey Lane QC which the Court of Criminal Appeal had
accepted. He drew on the judgments of the High Court of Australia in Johns
v
The
Queen
[1980] HCA 3; (1980) 143 CLR 108 and Miller
v
The
Queen
(1980) 55 ALJR 23. The only other English case to which he referred was Davies
v
Director of Public Prosecutions [1954] AC 378.
39.
In Davies
v
Director of Public Prosecutions [1954] AC 378 a fight
between two groups of youths resulted in a fatal stabbing. The appellant was
convicted of murder. One of the prosecution witnesses was a youth named Lawson.
He gave evidence of an oral admission by the appellant after the event. One of
the grounds of appeal was that the judge ought to have given the jury a warning
that Lawson could be regarded as an accomplice, and therefore was someone whose
evidence required to be treated with special caution. Lawson admitted being
involved in the fight at some stage, but he denied all knowledge of a knife and
there was no evidence that he was present when it was produced. He was
initially charged with murder, but no evidence was offered against him. The
House of Lords rejected the argument that an accomplice warning was required.
Lord Simonds LC said at p 401:
“I can see no reason why, if half a dozen boys fight another crowd, and one of them produces a knife and stabs one of the opponents to death, all the rest of his group should be treated as accomplices in the use of the knife and the infliction of mortal injury by that means, unless there is evidence that the rest intended or concerted or at least contemplated an attack with a knife by one of their number, as opposed to a common assault. If all that was designed or envisaged was in fact a common assault, and there was no evidence that Lawson, a party to that common assault, knew that any of his companions had a knife, then Lawson was not an accomplice in the crime consisting in its felonious use.”
41.
In Johns
v
The
Queen
the appellant was convicted of murder and
assault with intent to rob. His role was to drive the principal offender, W, to
a rendezvous with a third man, D. The appellant was to wait at the rendezvous
while the other two men robbed a known receiver of stolen jewellery. Afterwards
the appellant was to take possession of the proceeds and hide them in return
for a share. The appellant knew that W was carrying a pistol, and W told him
that he would not stand for any nonsense if he met any obstacle during the
robbery. In the event the
victim
resisted and W shot him dead.
42.
The judge directed the jury that the appellant and D would be guilty if
the act constituting the offence committed was within the contemplation of the
parties as an act done in the course of the
venture
on which they had embarked.
It was argued on the appellant’s behalf that while this was an appropriate
direction in the case of D, who was present and therefore a principal in the
second degree, it was a misdirection in the case of the appellant, who was an
accessory before the fact. It was submitted that in his case it was necessary
for the jury to conclude that it was a likely or probable consequence of the
way in which the crime was to be committed that the gun would be discharged so
as to kill the deceased.
“26. The narrow test of criminality proposed by the applicant is plainly unacceptable for the reason that it stakes everything on the probability or improbability of the act, admittedly contemplated, occurring. Suppose a plan made by A, the principal offender, and B, the accessory before the fact, to rob premises, according to which A is to carry out the robbery. It is agreed that A is to carry a revolver and use it to overcome resistance in the unlikely event that the premises are attended, previous surveillance having established that the premises are invariably unattended at the time when the robbery is to be carried out. As it happens, a security officer is in attendance when A enters the premises and is shot by A. It would make nonsense to say that B is not guilty merely because it was an unlikely or improbable contingency that the premises would be attended at the time of the robbery, when we know that B assented to the shooting in the event that occurred.
27. In the present case
there was ample evidence from which the jury could infer that the applicant
gave his assent to a criminal enterprise which involved the use, that is the
discharge, of a loaded gun, in the event that [the
victim]
resisted or sought
to summon assistance. We need not recapitulate the evidence to which we have
already referred. The jury could therefore conclude that the common purpose
involved resorting to
violence
of this kind, should the occasion arise, and
that the
violence
contemplated amounted to grievous bodily harm or homicide.”
44. This was an orthodox approach in line with the authorities going back to Collison (1831) 4 Car & P 565.
45.
In Miller
v
The
Queen
the defendant regularly drove the principal
offender, W, on outings to pick up girls. He would drive to a deserted spot and
walk away while W satisfied his sexual desires. Sometimes the sex was
consensual and the girl would be returned unharmed, but on seven occasions W
murdered the girl and the defendant helped him to dispose of her body. The
defendant was convicted of murder on all but the first occasion. The judge
directed the jury that the defendant would be guilty of murder if he and W
acted in concert to pick up a girl and it was within his contemplation that the
particular girl might be murdered. The defendant argued that this was a
misdirection. The court held that the direction should reasonably have been
understood as referring to a plan between the parties which included the
possible murder of the girls, and as such the direction was unobjectionable. It
is worth noting, as did the High Court, that this was not a case of a plan to
carry out crime A, in which one party carried out crime B. There was nothing
illegal about the
venture
of picking up girls for consensual sex. It became
illegal if and when the common purpose came to include murder as an
eventuality.
46. In Chan Wing-Siu Sir Robin Cooke touched briefly on public policy saying (at p 177):
“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 in fact are used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance on a nuance of prior assessment, only too likely to have been optimistic.”
R
v
Slack [1989] QB 775, R
v
Wakely [1990] Crim LR 119 and
R
v
Hyde [1991] 1 QB 134
48.
Reserved judgments of the Court of Appeal, expressed to follow Chan
Wing-Siu, were given in these cases by Lord Lane CJ. In Slack he
said, at p 781, that for a person to be guilty of murder as an accessory it had
to be proved that he lent himself to a criminal enterprise involving the
infliction of serious injury or death or that he had an express or tacit
understanding with the principal that such harm or death should, if necessary,
be inflicted. In Wakely he added that mere foresight of a real
possibility of
violence
being used was not, academically speaking, sufficient
to constitute the mental element of murder.
49.
Professor Smith in a commentary on Wakely in the Criminal Law
Review at pp 120-121 suggested that the Court of Appeal had failed properly to
follow Chan Wing-Siu. He identified the question raised by Slack
and Wakely as being whether it was sufficient to prove that a party to a
joint enterprise knew that another party might use the
violence
that was used,
or whether it was necessary to prove that it was understood between them
expressly or tacitly that, if necessary, such
violence
would be used. The
problem arose from the elision by Sir Robin Cooke in Chan Wing-Siu at p
175, of “contemplation” and “authorisation which may be express but is more
usually implied”. Professor Smith commented that “contemplation” is not the
same thing as “authorisation”, because one may contemplate that something will
be done by another without authorising him to do it, but that the general
effect of Chan Wing-Siu was that contemplation or foresight was enough.
Hui Chi-Ming
v
The
Queen
[1992] 1 AC 34
“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.”
R
v
Powell and R
v
English [1999] 1 AC 1
52.
The House of Lords at p 27 held in answer to a question certified by the
Court of Appeal that (subject to a qualification 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”. The
leading judgment was given by Lord Hutton, with whom the other judges agreed.
It was argued by the appellants that this was inconsistent with the mens rea
requirement for murder laid down in R
v
Moloney [1985] AC 905 and R
v
Hancock [1986] AC 455, but those cases were distinguished on the basis that
they applied only to the principal offender.
56.
In a concurring judgment, Lord Steyn recognised at p 13, that foresight
and intention are not synonymous, but he held that foresight is a “necessary
and sufficient” ground of the liability of accessories. He too recognised that
there was at first sight substance in the argument that it was anomalous that a
lesser form of culpability was required in the case of a secondary party
involved in a criminal enterprise,
viz
foresight of the possible commission of
the greater offence, than in the case of the primary offender, who will be
guilty of murder only if he intended to kill or cause really serious injury. But
he held at p 14, that the answer to the supposed anomaly was 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. … 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 principle is needed and cannot be abolished or relaxed.”
57.
Lord Mustill agreed with the decision, but with evident unease. He said
that throughout the modern history of the law on secondary liability, in the
type of case under consideration, the responsibility of the secondary party,
D2, had been founded on participation in a joint enterprise of which the
commission of the crime by the principal offender, D1, formed a part. If D2
foresaw D1’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
D2 and D1 agreed, albeit often on the basis that the action would be taken if
particular circumstances should arise. In cases where D2 could not rationally
be treated as party to an express or tacit agreement to commit the greater
offence, but continued to participate, he would have favoured some lesser form
of culpability; but that could not be fitted in to the existing concept of a
joint
venture.
For his part he would not have favoured the abandonment of a
doctrine which had for years worked adequately in practice and its replacement
by something which he conceived to be new. But since the other four members of
the panel saw the matter differently, and for the sake of clarity in the law,
he was willing to concur in their reasoning.
“… if the weapon used by the
primary party is different to, but as dangerous as, the weapon which the
secondary party contemplated he might use, the secondary party should not
escape liability for murder because of the difference in the weapon, for
example, if he foresaw that the primary party might use a gun to kill and the
latter used a knife to kill, or
vice
versa.”
59.
In later cases which proceeded on the assumption that the law was as
stated in Chan Wing-Siu, courts have endeavoured to clarify the test of
what is to be regarded as “fundamentally different” for this purpose; such
cases include R
v
Rahman [2008] UKHL 45; [2009] 1 AC 129 and R
v
Mendez [2011] QB 876. The need to address a concept of “fundamental
departure” assumed great importance because guilt was based, under the Chan
Wing-Siu and Powell and English rule, on foresight of what D1 might
do.
Australia
60.
Chan Wing-Siu was followed by the High Court of Australia in McAuliffe
v
The
Queen
(1995) 183 CLR 108, which was in turn followed by the High
Court in Gillard
v
The
Queen
(2003) 219 CLR 1 and Clayton
v
The
Queen
(2006) 231 ALR 500. In Clayton the majority adopted the theory (at para
20) that what is there described as “extended common purpose liability” differs
as a matter of jurisprudential foundation from secondary liability as aider or abettor,
the first being grounded in common embarkation on crime A and the second in contribution
to another’s crime. There was a dissenting judgment by Kirby J, who pointed, among
other considerations, to the disparity between the mental element required of
an aider or abettor and that required by the rule of extended common purpose
(para 102).
Analysis
62.
From our review of the authorities, there is no doubt that the Privy
Council laid down a new principle in Chan Wing-Siu when it held that if
two people set out to commit an offence (crime A), and in the course of it one
of them commits another offence (crime B), the second person is guilty as an
accessory to crime B if he foresaw it as a possibility, but did not necessarily
intend it. We have referred (at paras 31-33 and 39-45) to the authorities on
which the Privy Council placed reliance in laying down that principle: Davies
v
Director of Public Prosecutions, R
v
Anderson and R
v
Morris, Johns
v
The
Queen
and Miller
v
The
Queen.
63.
What Lord Simonds said in Davies was in a
very
different context
and does not provide support for the Chan Wing-Siu principle for the
reasons which we have explained.
66.
Nor can authorisation of crime B automatically be inferred from
continued participation in crime A with foresight of crime B. As Lord Brown
accurately pointed out in R
v
Rahman at para 63, the rule in Chan
Wing-Siu makes guilty those who foresee crime B but never intended it or
wanted it to happen. There can be no doubt that if D2 continues to participate
in crime A with foresight that D1 may commit crime B, that is evidence, and
sometimes powerful evidence, of an intent to assist D1 in crime B. But it is
evidence of such intent (or, if one likes, of “authorisation”), not conclusive
of it.
67.
In Johns
v
The
Queen
the ratio decidendi of the majority was that
there was ample evidence from which the jury could infer that the defendant
gave his assent to a criminal enterprise which involved the discharge of a
firearm, should the occasion arise. This was an entirely orthodox approach. So
too was the decision in Miller
v
The
Queen,
where the High Court held
that the judge’s direction to the jury would reasonably have been understood as
saying that the defendant would be guilty of murder if he acted in concert with
the principal offender in a plan which included the possible murder of the
victims.
As already noted, that case did not involve a plan to carry out crime
A, in the course of which crime B was committed.
68.
In Powell and English Lord Hutton placed considerable reliance on
Wesley Smith, which had been cited in Chan Wing-Siu but was not
mentioned in the judgment. Lord Hutton said that he considered that in Wesley
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” (p 19). But the
unlawful killing to which the Court of Appeal was referring was manslaughter,
not murder, and it is
very
important to understand its reasoning. The defendant
in Wesley Smith was one of a group of four men who became involved in a
row in a public house. He and one other went outside and threw bricks at the
building. One of the two who remained inside stabbed the barman with a knife
which Smith knew he carried. Smith was acquitted of murder but convicted of
manslaughter.
69.
The question in Wesley Smith was whether his conviction for
manslaughter was unsafe in the light of his acquittal of murder. The starting
point was that anyone who takes part in an unlawful and
violent
attack on
another person which results in death is guilty (at least) of manslaughter. There
might conceivably have been an intervening act by another person of such a
character as to break any connection between the defendant’s conduct and the
victim’s
death (as, for example, in Anderson and Morris); but the fact
that it must have been within Smith’s contemplation that the principal might
act in the way that he did was fatal to the argument that he was not guilty
even of manslaughter. (See para 96 below).
“Only he who intended that
unlawful and grievous bodily harm should be done is guilty of murder. He who
intended only that the
victim
should be unlawfully hit and hurt will be guilty
of manslaughter if death results.”
74.
It was, of course, within the jurisdiction of the courts in Chan Wing-Siu
and Powell and English to change the common law in a way which made
it more severe, but to alter general principles which have stood for a long
time, especially in a way which has particular impact on a subject as difficult
and serious as homicide, requires caution; and all the more so when the change
involved widening the scope of secondary liability by the introduction of new
doctrine (since termed parasitic accessory liability). In Chan Wing-Siu
the Privy Council addressed the policy argument for the principle which it laid
down in two sentences (see para 46 above). The statement at p 177 “Where a man
lends himself to a criminal enterprise knowing that potentially murderous
weapons are to be carried, and in the event they in fact are used by his
partner with an intent sufficient for murder, he should not escape the
consequences …” may be thought to oversimplify the question of what is the
enterprise to which he has intentionally lent himself, but it also implies that
he would escape all criminal liability but for the Chan Wing-Siu
principle. On the facts postulated, if the law remained as set out in Wesley
Smith and Reid he would be guilty of homicide in the form of
manslaughter, which carries a potential sentence of life imprisonment. The
dangers of escalation of
violence
where people go out in possession of weapons
to commit crime are indisputable, but they were specifically referred to by the
court in Reid, when explaining why it was right that such conduct should
result in conviction for manslaughter if death resulted, albeit that the
initial intention may have been nothing more than causing fright. There was no
consideration in Chan Wing-Siu, or in Powell and English, of the
fundamental policy question whether and why it was necessary and appropriate to
reclassify such conduct as murder rather than manslaughter. Such a discussion
would have involved, among other things, questions about fair labelling and
fair discrimination in sentencing.
76.
We respectfully differ from the
view
of the Australian High Court,
supported though it is by some distinguished academic opinion, that there is
any occasion for a separate form of secondary liability such as was formulated
in Chan Wing-Siu. As there formulated, and as argued by the Crown
in these cases, the suggested foundation is the contribution made by D2 to
crime B by continued participation in crime A with foresight of the possibility
of crime B. We prefer the
view
expressed by the Court of Appeal in Mendez,
at para 17, and by textbook writers including Smith and Hogan’s Criminal Law,
14th ed (2015), p 260 that there is no reason why ordinary principles of
secondary liability should not be of general application.
77.
The rule in Chan Wing-Siu is often described as “joint enterprise
liability”. However, the expression “joint enterprise” is not a legal term of
art. As the Court of Appeal observed in R
v
A [2011] QB 841, para 9, it
is used in practice in a
variety
of situations to include both principals and
accessories. As applied to the rule in Chan Wing-Siu, it unfortunately
occasions some public misunderstanding. It is understood (erroneously) by some
to be a form of guilt by association or of guilt by simple presence without
more. It is important to emphasise that guilt of crime by mere association has
no proper part in the common law.
78.
As we have explained, secondary liability does not require the existence
of an agreement between D1 and D2. Where, however, it exists, such agreement is
by its nature a form of encouragement and in most cases will also involve acts
of assistance. The long established principle that where parties agree to carry
out a criminal
venture,
each is liable for acts to which they have expressly or
impliedly given their assent is an example of the intention to assist which is
inherent in the making of the agreement. Similarly, where people come together
without agreement, often spontaneously, to commit an offence together, the
giving of intentional support by words or deeds, including by supportive
presence, is sufficient to attract secondary liability on ordinary principles.
We repeat that secondary liability includes cases of agreement between
principal and secondary party, but it is not limited to them.
“(1) A person commits an offence if -
(a) he does an act capable of encouraging or assisting the commission of an offence; and
(b) he intends to encourage or assist its commission.
(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.”
Section 45 creates a parallel offence if a person does such an act believing that the offence will be committed and that his act will encourage or assist his commission, but both sections are subject to a statutory defence if the defendant acted reasonably in the circumstances as he believed them to be. It is a noteworthy feature of the present law in England and Wales that Parliament has provided that foresight is not sufficient mens rea for the offence of intentionally encouraging or assisting another to commit an offence; whilst at present under Chan Wing-Siu if that other person goes on to commit the offence, such foresight is sufficient mens rea for the secondary party to be regarded as guilty of the full offence at common law. The correction of the error in Chan Wing-Siu brings the common law back into recognition of the difference between foresight and intent, consistently with Parliament’s approach in section 44(2) of the 2007 Act and more generally in section 8 of the Criminal Justice Act 1967 (referred to at para 73 above).
Restatement of the principles
90.
The second issue is likely to be whether the accessory intended to
encourage or assist D1 to commit the crime, acting with whatever mental element
the offence requires of D1 (as stated in para 10 above). If the crime requires
a particular intent, D2 must intend (it may be conditionally) to assist D1 to
act with such intent. To take a homely example, if D2 encourages D1 to take
another’s bicycle without permission of the owner and return it after use, but
D1 takes it and keeps it, D1 will be guilty of theft but D2 of the lesser
offence of unauthorised taking, since he will not have encouraged D1 to act
with intent permanently to deprive. In cases of concerted physical attack there
may often be no practical distinction to draw between an intention by D2 to
assist D1 to act with the intention of causing grievous bodily harm at least
and D2 having the intention himself that such harm be caused. In such cases it
may be simpler, and will generally be perfectly safe, to direct the jury (as
suggested in Wesley Smith and Reid) that the Crown must prove
that D2 intended that the
victim
should suffer grievous bodily harm at least.
However, as a matter of law, it is enough that D2 intended to assist D1 to act
with the requisite intent. That may well be the situation if the assistance or
encouragement is rendered some time before the crime is committed and at a time
when it is not clear what D1 may or may not decide to do. Another example might
be where D2 supplies a weapon to D1, who has no lawful purpose in having it,
intending to help D1 by giving him the means to commit a crime (or one of a
range of crimes), but having no further interest in what he does, or indeed
whether he uses it at all.
92.
In cases of secondary liability arising out of a prior joint criminal
venture,
it will also often be necessary to draw the jury’s attention to the
fact that the intention to assist, and indeed the intention that the crime
should be committed, may be conditional. The bank robbers who attack the bank
when one or more of them is armed no doubt hope that it will not be necessary
to use the guns, but it may be a perfectly proper inference that all were
intending that if they met resistance the weapons should be used with the
intent to do grievous bodily harm at least. The group of young men which faces
down a rival group may hope that the rivals will slink quietly away, but it may
well be a perfectly proper inference that all were intending that if resistance
were to be met, grievous bodily harm at least should be done.
93.
Juries frequently have to decide questions of intent (including conditional
intent) by a process of inference from the facts and circumstances proved. The
same applies when the question is whether D2, who joined with others in a
venture
to commit crime A, shared a common purpose or common intent (the two
are the same) which included, if things came to it, the commission of crime B,
the offence or type of offence with which he is charged, and which was
physically committed by D1. A time honoured way of inviting a jury to consider
such a question is to ask the jury whether they are sure that D1’s act was
within the scope of the joint
venture,
that is, whether D2 expressly or tacitly
agreed to a plan which included D1 going as far as he did, and committing crime
B, if the occasion arose.
95.
In cases where there is a more or less spontaneous outbreak of
multi-handed
violence,
the evidence may be too nebulous for the jury to find
that there was some form of agreement, express or tacit. But, as we have said,
liability as an aider or abettor does not necessarily depend on there being
some form of agreement between the defendants; it depends on proof of intentional
assistance or encouragement, conditional or otherwise. If D2 joins with a group
which he realises is out to cause serious injury, the jury may well infer that
he intended to encourage or assist the deliberate infliction of serious bodily
injury and/or intended that that should happen if necessary. In that case, if
D1 acts with intent to cause serious bodily injury and death results, D1 and D2
will each be guilty of murder.
96.
If a person is a party to a
violent
attack on another, without an intent
to assist in the causing of death or really serious harm, but the
violence
escalates and results in death, he will be not guilty of murder but guilty of
manslaughter. So also if he participates by encouragement or assistance in any other
unlawful act which all sober and reasonable people would realise carried the
risk of some harm (not necessarily serious) to another, and death in fact
results: R
v
Church [1965] 1 QB 59, approved in Director of Public
Prosecutions
v
Newbury [1977] AC 500 and
very
recently re-affirmed in R
v
F (J) & E (N) [2015] EWCA Crim 351; [2015] 2 Cr App R 5. The test is
objective. As the Court of Appeal held in Reid, if a person goes out
with armed companions to cause harm to another, any reasonable person would
recognise that there is not only a risk of harm, but a risk of the
violence
escalating to the point at which serious harm or death may result. Cases in
which D2 intends some harm falling short of grievous bodily harm are a
fortiori, but manslaughter is not limited to these.
98.
This type of case apart, there will normally be no occasion to consider
the concept of “fundamental departure” as derived from English. What
matters is whether D2 encouraged or assisted the crime, whether it be murder or
some other offence. He need not encourage or assist a particular way of
committing it, although he may sometimes do so. In particular, his intention to
assist in a crime of
violence
is not determined only by whether he knows what
kind of weapon D1 has in his possession. The tendency which has developed in
the application of the rule in Chan Wing-Siu to focus on what D2 knew of
what weapon D1 was carrying can and should give way to an examination of
whether D2 intended to assist in the crime charged. If that crime is murder,
then the question is whether he intended to assist the intentional infliction
of grievous bodily harm at least, which question will often, as set out above,
be answered by asking simply whether he himself intended grievous bodily harm
at least.
Very
often he may intend to assist in
violence
using whatever weapon
may come to hand. In other cases he may think that D1 has an iron bar whereas
he turns out to have a knife, but the difference may not at all affect his
intention to assist, if necessary, in the causing of grievous bodily harm at
least. Knowledge or ignorance that weapons generally, or a particular weapon,
is carried by D1 will be evidence going to what the intention of D2 was, and
may be irresistible evidence one way or the other, but it is evidence and no
more.
99.
Where the offence charged does not require mens rea, the only mens rea
required of the secondary party is that he intended to encourage or assist the
perpetrator to do the prohibited act, with knowledge of any facts and
circumstances necessary for it to be a prohibited act: National Coal Board
v
Gamble.
Past convictions
“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”
For more recent statements of the same rule see Hawkins
[1997] 1 Cr App R 234 (Lord Bingham CJ) and Cottrell and Fletcher [2007] EWCA Crim 2016; [2007] 1 WLR 3262 (Sir Igor Judge P) together with the cases
reviewed in R
v
R [2006] EWCA Crim 1974; [2007] 1 Cr App R 150. As Cottrell
and Fletcher decides, the same principles must govern the decision of the
Criminal Cases Review Commission if it is asked to consider referring a conviction
to the Court of Appeal: see in particular para 58.
101.
On 28 March 2012
Jogee
and a co-defendant, Hirsi, were each convicted at
Nottingham Crown Court of the murder of a man named Fyfe. His appeal to the
Court of Appeal Criminal Division was dismissed. The cause of death was a stab
wound inflicted by Hirsi. The stabbing took place shortly before 2.30 am on 10
June 2011 at the home of a woman called Naomi Reid in Leicester.
Jogee
and
Hirsi spent the evening of 9 June 2011 together at
various
places, taking drink
and drugs. They became increasingly intoxicated and their behaviour became
increasingly aggressive. Shortly before midnight they arrived at Miss Reid’s
house. The prosecution’s case about what happened after that was based on her
evidence. According to her account,
Jogee
was angry about a recent encounter
with another man. He picked up a large knife from a kitchen block and waved it
about, saying that they should go and “shank” him. Miss Reid wanted them to
leave. She was in a relationship with the deceased and told them that she was
expecting him home shortly. They replied that they were not scared of him and
would sort him out. They left after
Jogee
received a call from someone wanting
to buy cocaine, but said that they would be back.
102.
Hirsi later returned alone to Miss Reid’s house and was there when the
deceased arrived. Miss Reid phoned
Jogee
and told him to take Hirsi away.
Jogee
arrived, and he and Hirsi left. After they had gone, Miss Reid sent
Jogee
a
text telling him not to bring Hirsi to her house again. Within minutes the two
men returned. Hirsi entered the house, shouting. The deceased came downstairs
and there was an angry exchange. The deceased went upstairs to put on his
jeans. While that was happening, Hirsi took the knife from the kitchen.
According to Miss Reid, the deceased came down and tried to get Hirsi and
Jogee
to leave. The deceased was in the hallway. Hirsi was inside the front door,
armed with the knife.
Jogee
was outside, striking a car with a bottle and
shouting encouragement to Hirsi to do something to the deceased. At some stage
Jogee
came to the doorway, with the bottle raised, and leaned forward past
Hirsi towards the deceased, saying that he wanted to smash it over the
deceased’s head, but he was too far away. The deceased told them to go, but
both men said that they were not going anywhere. Miss Reid threatened to call
the police. Hirsi pointed the knife at her chest and grabbed her by the throat.
Miss Reid backed away and went to the kitchen, but she saw Hirsi make a
stabbing motion towards the deceased’s chest and both men ran off. The deceased
had been stabbed by Hirsi and died of his wounds.
107.
We regard that submission as hopeless. The jury’s
verdict
means that it
was sure, at the
very
least, that the appellant knew that Hirsi had the knife
and appreciated that he might use it to cause really serious harm. In returning
to the house, after 2.00 am, in the circumstances which we have summarised, the
appellant and Hirsi were clearly intent on some form of
violent
confrontation.
The appellant was brandishing a bottle, striking the car and shouting
encouragement to his co-defendant at the scene. There was a case fit to go to
the jury that he had the mens rea for murder. At a minimum, he was party to a
violent
adventure carrying the plain objective risk of some harm to a person
and which resulted in death; he was therefore guilty of manslaughter at least.
The choice of disposal is whether to quash the appellant’s conviction for
murder and order a re-trial or whether to quash his conviction for murder and
substitute a conviction for manslaughter. We invite the parties’ written
submissions on that question.
108.
On 26 January 2010
Ruddock
was convicted at Montego Bay Circuit Court of
the murder of Pete Robinson. A co-defendant, Hudson, pleaded guilty to murder
at the beginning of the trial.
Ruddock’s
appeal to the Court of Appeal of
Jamaica was dismissed. The prosecution’s case was that the murder was committed
in the course of robbing the deceased of his Toyota station wagon.
109.
The deceased was a taxi driver. His body was found on the morning of 1 July
2007 on a beach in the fishing
village
of White House. His hands and feet were
tied with cloth and his throat had been cut. On 4 July 2007 the deceased’s son
saw the Toyota being driven in the town of Maggotty. He immediately reported it
to the police. Soon afterwards two police officers came across the
vehicle
parked in Maggotty. Hudson was in the driver’s seat, a woman was in the front
passenger seat and
Ruddock
was in the back seat. They were told that the police
had information that the
vehicle
had been stolen and the owner murdered, and
they were taken to Maggotty police station.
110.
The prosecution’s case against
Ruddock
was based on what he was alleged
to have told the police. The investigating officer, DC Spence, gave evidence
that he interviewed
Ruddock
under caution on 5 July 2007. He said that
Ruddock
stated that he was not the one who cut the deceased’s throat, that this was
done by Hudson with a ratchet knife, but that he had tied the deceased’s hands
and feet. The officer then recorded a statement from him, which was not adduced
in evidence.
111.
After taking
Ruddock’s
statement, DC Spence interviewed a woman whose
picture appeared on Hudson’s mobile phone. He was asked by prosecuting counsel
what the woman said, but at this point the judge rightly intervened to warn the
prosecution against hearsay evidence. DC Spence told the jury that he then went
back to see
Ruddock
and, despite the judge’s warning, he continued:
“I told him that the female had explain (sic) to me that, told me all what they have done to her and the deceased, Pete Robinson, while they were on the beach at White House in St James.”
112.
DC Spence said that he subsequently arrested
Ruddock,
and that under
caution he repeated that he had tied up the deceased’s hands and feet and that
Hudson used a ratchet knife to cut his throat.
Ruddock
allegedly added that
they then drove away in the car with “the female”, which the jury is likely to
have understood to mean the female about whom DC Spence had been speaking. The
female was not called as a witness.
113.
Ruddock
did not give evidence, but he made an unsworn statement from the
dock to the effect that he had not been present at the murder and had no
knowledge of it. He gave an explanation for being in the car when he was picked
up by the police. He said that he told the police that he knew nothing about
the murder, but that they beat him and offered him a bribe to build a case
against Hudson.
116.
The judge also reminded the jury of DC Spence’s evidence of what he told
Ruddock
about what the female had said regarding “what they did to her at White
House on the beach and what they did to Mr Robinson”. He commented that the
jury would have to “look at that”, together with the fact that there seemed to
have been no reply from
Ruddock.
118.
Secondly, that the judge failed to tell the jury that if they were sure
that
Ruddock
was a party to carrying out the robbery, it did not automatically
follow that he was also party to the murder of the deceased. That question
required separate and further consideration.
Ruddock’s
alleged statements to
the police were, or were at least capable of being understood as, a denial that
he was responsible for the deceased’s murder. He admitted to tying up the
deceased, but that was consistent with a simple intent to rob. The fact that
the defence advanced by
Ruddock
at trial was a total denial of involvement in
the incident did not remove the judge’s obligation to point out to the jury
that there was evidence in
Ruddock’s
words to the police which was intended to
exculpate himself from the murder.
119.
Thirdly, and less significantly, the judge’s treatment in his summing up
of what DC Spence said to
Ruddock about the female in the photograph was
unsatisfactory. It was potentially prejudicial. The judge should have told the
jury that they had not heard from the woman, and that they should ignore
altogether any reference to what she had said.