Law report: Foresight sufficient to make secondary party liable

A secondary party could be convicted of murder where he realised in the course of a joint enterprise that the primary party might kill with intent to do so or with intent to cause grievous bodily harm although he had no such intention himself. Where, however, the primary party killed with a deadly weapon which the secondary party did not know he had, the secondary party would not be guilty of murder.

Regina v Powell and anor; Regina v English; House of Lords (Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Mustill, Lord Steyn and Lord Hutton) 30 October 1997

The House of Lords dismissed the appeals of Anthony Glassford Powell and Antonio Eval Daniels against their convictions of murder, but allowed the appeal of Philip English against his conviction of murder.

Peter Feinberg QC and Benjamin Squirrell (Thanki Novy Taube) for Powell and Daniels; Christopher Sallon QC and Julian B. Knowles (Bindman & Partners) for English; Anthony Scrivener QC and William Boyce (Crown Prosecution Service) for the Crown.

Lord Hutton said that in the case of Powell and Daniels the purpose of the joint enterprise, with a third man, was to buy drugs from a dealer. The drug dealer was shot dead and the Crown, unable to prove who had fired the gun, submitted that if it was the third man, the two appellants were guilty of murder because they knew that he 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 case of English the purpose of the joint enterprise in which he and another man, Weddle, took part was to attack and cause injury with wooden posts to a police officer, but Weddle used a knife with which he stabbed the officer to death. It was a reasonable possibility that English had not known that Weddle was carrying a knife.

The questions before their Lordships were:

1) 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 to cause grievous bodily harm, or must the secondary pary have held such intention himself?

2) 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 fundamentally different from the acts foreseen or intended by the secondary party?

There was 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 was sufficient to impose criminal liability for that act carried out by another participant in the enterprise. The question then arose whether as a matter of principle there was an anomaly in requiring proof against a secondary party of a lesser mens rea than that needed to be proved against the principal who committed the actus reus of murder. If foreseeability of risk was insufficient to found the mens rea of murder for a principal then the same test should apply to a secondary party to the joint enterprise.

The rules of the common law were not, however, based solely on logic but related 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. The first certified question would accordingly be answered in the affirmative, and the appeals of Powell and Daniels would be dismissed.

With regard to the second question, it had been submitted that in a case where the primary party killed with a deadly weapon which the secondary party did not know he had, and the use of which he did not therefore foresee, the secondary party should not be guilty of murder. That submission was correct, finding strong support in R v Anderson; R v Morris [1966] 2 QB 110. On the evidence the jury could have found that English did not know that Weddle had a knife. His conviction was unsafe, and the appeal would be allowed.