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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> McKinnon & Ors v. Her Majesty's Advocate [2003] ScotHC 7 (13 February 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/7.html Cite as: [2003] ScotHC 7, 2003 SLT 281, 2003 SCCR 224, 2003 GWD 7-163, 2003 JC 29

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McKinnon & Ors v. Her Majesty's Advocate [2003] ScotHC 7 (13 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord MacLean Lord Osborne Lord Hamilton	Appeal Nos: C403/00 C384/00 C413/00 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTES OF APPEAL AGAINST CONVICTION by STEPHEN McKINNON, ROSS McKAY and ALAN JUNIOR NORWOOD Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellants: W. Taylor, Q.C., Gilbride; Gallen & Co., Glasgow: G. Jackson, Q.C., Livingstone; McCusker McIlroy Johnstone: M. Scott, Q.C., Hood; Anthony Mahon & Co, Glasgow

Respondent: D. Batchelor, Q.C., A.D.; Crown Agent

13 February 2003

1. The three appellants stood trial along with two co-accused on a charge of murder and two charges of assault relating to a single incident on 12 September 1999. On the charge of murder the Crown sought the conviction of the accused on the basis that it was the outcome of an antecedent concert between them to commit the crime of assault and robbery. In the result the appellants, along with a co-accused John Jackson, were found guilty of all three charges. The co-accused Leon Barrie was convicted only of the assault charges. All five accused appealed against their convictions. In due course the appeal of John Jackson was abandoned; and the appeal of Leon Barrie was allowed (Barrie v. H.M. Advocate 2002 SLT 1053). When dealing with Barrie's appeal the court decided that the appellants' appeals should be referred to a larger court for consideration of the law of concert in light of what was said by the court in Brown v. H.M. Advocate 1993 S.C.C.R. 382 and earlier decisions.
2. It is convenient to deal first with the law of concert, and thereafter with the present appeals.
3. For the appellant McKinnon, Mr. Jackson submitted that where the Crown relied on concert to establish the guilt of accused persons the jury required to be satisfied in regard to the individual accused that he personally had the appropriate mens rea, that is, that he had in contemplation as part of the criminal purpose an act of the degree of wicked recklessness for murder, such as occurred in the particular case. He relied for this purpose on what was said by the court in Brown at page 393. Thus, the fact that a number of persons set out to rob the victim, knowing that knives were to be used, was not enough to make them responsible for murder committed by one of their number. He emphasised that there had been a progressive change in the approach to the responsibility of an individual accused, contrasting the opinion of Lord Moncrieff in Docherty v. H.M. Advocate 1945 J.C. 89 with the individualistic approach adopted in Brown. The law had moved away from attributing to an accused what he should have foreseen to what was in his mind as to the behaviour of others. He submitted that the decision in Melvin v. H.M. Advocate 1984 S.C.C.R. 113 had introduced the principle of distinguishing, among persons who had acted in concert, between those who were guilty of murder and those who were guilty only of culpable homicide.
4. Mr. Taylor, who appeared for the appellant McKay, adopted Mr. Jackson's submissions and added a number of other contentions. He submitted that when all that was known was that an accused was one of a number of persons who had participated in an attack on the victim, the jury required to consider whether it was proved that he had associated himself with conduct which displayed the sufficient degree of wicked recklessness that the killing of the victim was murder.
5. For the appellant Norwood, Ms. Scott distinguished between two concepts which she submitted lay at the heart of the appeal, namely the law of concert (or art and part responsibility) and the mens rea of murder. As regards concert, if the jury were satisfied that the assault which caused the death was within the scope of the joint enterprise then the appellant was art and part responsible for the homicide. Matters such as the actual foresight of the accused or the reasonable foreseeability of events arose in the process of deciding what was within the scope of the joint enterprise and to what extent the accused was a party to it. Foresight or foreseeability were important factors from which the jury could infer art and part responsibility. Once the jury were satisfied that the appellant was responsible for homicide on an art and part basis, they then had to consider the question of the wickedness of the accused's participation. That was in order to determine whether they were satisfied that the Crown had proved that his participation amounted to wicked recklessness. The quality of his actions, and hence the degree of recklessness shown by him, were matters of fact for the jury to determine. They depended on inferences to be drawn from all the relevant circumstances. There might be some circumstances in which the only reasonable inference from the evidence was murder. The same factors which were relevant to determination of the scope of the joint enterprise - foresight and foreseeability - were relevant to determining the degree of recklessness or wickedness involved. It was too simplistic and wrong to take the view that participation in an assault which caused death in the course of a robbery automatically amounted to murder. The only basis on which murder could be so simply ascribed to the actions of an accused was by the imposition of an outdated public policy. Today the aims of any such policy could be met by finding art and part responsibility for homicide, as distinct from murder.
6. The Advocate depute criticised the submissions made by Mr. Jackson on the ground that, if they were correct, they would undermine the law on the basis of which an accused could be found guilty art and part. He submitted that the critical issue was the basis on which the law rendered a secondary party to be art and part in respect of a crime, such as murder, committed by another. For the purposes of determining the scope of the common criminal purpose Scots law had always taken an objective approach. What the court had said in Brown sought to introduce a subjective approach. The scope of the criminal purpose included not only what the participants agreed to do but also what could reasonably have been anticipated. Thus a jury would be entitled to convict of murder if the scope included the use of a weapon which might have fatal consequences. This depended on the jury's assessment of the evidence in the particular case. The Advocate depute also said that the mens rea of the accused required to be considered, but by joining in the common criminal purpose he or she could demonstrate a reckless indifference to the consequences.
7. We should add that we were referred not only to cases which illustrated the application of the law of concert in Scotland, but also to a number of English decisions, notably R. v. Powell [1999] 1 AC 1. However, having regard to the obvious differences between the law of England and that of Scotland, including the definition of murder, we have come to the conclusion that no useful purpose would be served by our discussing these decisions in any detail.
8. In considering the law as it stood prior to the decision in Brown, it is appropriate for us to begin by considering what was stated in Hume on Crimes concerning art and part of murder. While we are principally concerned with antecedent concert, it is useful to consider his remarks on that subject within a wider context. At page 264, in opening his discussion he points out, in regard to the several ways in which a person may be art and part guilty of murder and answerable according to the law where the homicide is not the immediate act of his own hand:

"This one may either be, by some part taken in the perpetration of the deed, or by something done in preparation or furtherance of the future act; for all these several modes of guilt are within the scope and compass of our phrase of art and part. It is with respect to the first sort of accession, that the most frequent, though not perhaps the most difficult questions of art and part have arisen: Yet even here cases of some nicety may happen. For according to the views with which the several persons meet, the shares which they respectively take in doing the deed, the certainty or uncertainty of the mortal blow, and sundry other circumstances, they may be all in the same or in very different degrees of guilt, and may deserve higher or lower pains, or perhaps some of them be quite innocent of the charge".

9. Dealing with the first sort of accession, Hume states, also at page 264:

"One thing is plainly reasonable and is allowed by all authorities: That if a number conspire and lie in wait, to kill a certain person ... it signifies nothing who gives the mortal blow, or how few blows are given. Though but one of the party strike, and dispatch with one blow of a lethal weapon, he is not therefore the one actor on the occasion, but executioner, for all of them, of their common resolution: Properly speaking, he is their instrument with which they strike, and they by their presence are consenting, aiding, and abetting to him in all he does; having all come hither on purpose to have it done, and being ready to lend their aid, if need shall be ...".

Hume goes on to state at page 265:

"This rule is to be understood as applicable not only to those comparatively rare cases, where an express and formal compact to kill can be proved, but equally to all, in which, from the number, arms, words and behaviour of the persons engaged, an implied and tacit confederacy may reasonably be inferred ... . It is further to be observed, that a person may justly be convicted in respect of mere presence, in a case even where the murder is not committed with any of the proper instruments of slaughter. It is true, that where the whole party are equipped with lethal weapons, at setting out on the enterprise, or where some provide themselves with arms, with the knowledge and consent of the others, these circumstances are themselves evidence of the assent of all to the felonious and mortal purpose. And it must be allowed, that in any case where the person is not dispatched in that manner, but by beating with a staff or the like; here, to convict any one who has not actually struck (for there is otherwise no room for such a question) the stronger evidence will be required of his full association to the previous confederacy, and of the dangerous nature of the meditated injury, or of his actual assent to what he sees done at the time: Or at least, the case may be more open to a proof of favourable circumstances on his part; as that he remonstrated with his associates, and did what in him lay to restrain them from any dangerous excess".

10. Dealing with the second sort of accession Hume states, at page 268-269:

"What is true of homicide committed in pursuance of a concert to kill, or to do some grievous bodily harm, seems to be equally so of homicide done in prosecution of any other felony; provided the nature of the attempt imply, or the behaviour and proceedings of the parties indicate, an unity of purpose in all concerned, and a resolution to control all resistance by numbers and force. If several go out together, armed, to rob on the highway, and one of them kill in the assault, it is murder in all those of the party who are anywise aiding in the robbery, whether present or not on the spot. For they are all there under a compact of mutual support; and the homicide is an obvious and not unforeseen consequence of the assault, to rob: Else why do they go out provided with arms? The like judgment is due, if a number are engaged in a housebreaking and one of them kills a person in the house, whether to subdue resistance, or make good his own escape: Even those who never enter the house, but watch only without, to prevent surprise, are here guilty art and part of the murder. Or again, Put the case that a score of persons have assembled to rescue a cargo of smuggled goods, which are in the course of conveyance by the revenue-officer, and that they set out on this adventure, all or most of them provided with fire-arms. If, in the prosecution of this felonious enterprise, the revenue-officer or any of his party shall be killed, all the confederates are answerable for it with their lives. For why come they there armed, and in numbers, but in the expectation of resistance, and in preparation to overcome it? All are on the spot at the time, in a mutual league of defence and support, by force of arms, in their unlawful project; and it is by the presence and countenance of all and each of them, in pursuit of their common object, that the immediate actor has been brought into that situation, which has emboldened him to kill. It is on their account, as much as his own, that he makes use of his arms. He does so, to protect their persons, and promote their enterprise, in which he has no deeper interest than the others, and which, if he were left single, he would certainly abandon. Were it not for their company, he would not be on the expedition; if others had not brought arms with them, neither would he; and it is to their power, and their disposition to assist him, that he trusts when he makes use of his weapon ...".

11. On the other hand, Hume goes on to state at page 270:

"In all that has been said this limitation is plainly implied, That to effect all concerned, the homicide must be done in pursuance of the common enterprise. For if the killer strike on some accidental and peculiar quarrel of his own, nowise connected with or subservient to the original design; or, though it be in some sort connected with that design, if a resolution of the whole party to accomplish their object by such extreme means cannot reasonably be inferred in the whole circumstances of the case; certainly all the reasons fail for which, by the construction of law, the act of one may be carried over into the persons of his associates ...".

12. Dealing thirdly with art and part in cases of sudden slaughter, Hume states, at page 270:

"The more ordinary case of homicide is, that the felonious purpose is taken up suddenly, on a fortuitous quarrel among persons who were lawfully assembled for some other object. And, in these circumstances, to convict any one as art and part, evidence must be shown with respect to him in particular, of his having done such things as infer that he partook of the mortal purpose, and amount to an assistance in the execution".

In regard to cases in which it was not known by whose hand the mortal blow had been given, Hume states at page 271:

"But in the circumstances of the fact, this uncertainty did not furnish a sufficient argument for mitigating the ordinary pains with respect to any one of the pannels, against whom such a co-operation should be proved. Because, in employing the peculiar instruments of slaughter, they had all substantially, though all of a sudden, adopted the felonious purpose; were actuated by the same malignity; exerted themselves to one end; and effectually assisted the mortal hand, whichever it was, by their combined attack; which materially aggravated the alarm to the deceased, and lessened his ability to defend himself. What hand gave the fatal blow was indifferent in such a case, and if known could not have tended in any degree to relieve the others; since the deed was equally that of the whole party, acting with sword or pistol, as if it had been done on a more regular and deliberate association. For in the case of a number of persons, as of one individual, it is indifferent to the guilt of murder (if there have been no sufficient provocation) whether the mortal purpose is of malice aforethought, or is conceived only upon the spot. The deed in the several foregoing cases, was therefore that of all who assailed with mortal weapons ...".

It is clear from this exposition that guilt of murder on the basis of accession depends on the circumstances of the individual case.

13. A number of points may be noted in regard to what Hume says about art and part of murder done "in prosecution of any other felony". First, the parties' common criminal purpose and their "resolution to control all resistance by numbers or force" is implied by "the nature of the attempt" or indicated by "the behaviour and proceedings of the parties". Secondly, homicide is "an obvious and not unforeseen consequence" where parties go out provided with arms for achieving their purpose. Seen in this light homicide may be part of what they had within their contemplation as their criminal purpose. Thirdly, the responsibility of the individual participants for the murder which they did not themselves commit is based on their support and defence of the common criminal purpose, including its "obvious and not unforeseen consequence". Accordingly the "immediate actor" is regarded as acting on their behalf in his use of arms and thus emboldened to kill. Lastly, it is clear from his discussion of the subject of accession that the nature of any weapons which are carried and the way in which it is envisaged that they may be used have an important bearing on the guilt of the participants.
14. Of these three points the second and the last are the most pertinent for present purposes. They were discussed in part of the opinion of Lord Moncrieff in the well-known case of Docherty v. H.M. Advocate. In that case it was held by the appeal court that the trial judge had failed to make it clear to the jury that the conviction of the appellant on a charge of murder depended on whether there was satisfactory proof of concert. After commenting on an illustration which the trial judge had given to the jury in the course of his charge, Lord Moncrieff stated at pages 95-96:

"It is true that if people acting in concert have reason to expect that a lethal weapon will be used - and their expectation may be demonstrated by various circumstances, as, for example, if they themselves have carried arms or if they know that arms and lethal weapons are being carried by their associates - they may then under the law with regard to concert each one of them become guilty of murder if the weapon is used with fatal results by one of them. In view of their assumed expectation that it might be used, and of their having joined together in an act of violence apt to be completed by its use, they will be assumed in law to have authorised the use of the fatal weapon, and so to have incurred personal responsibility for using it. If, on the other hand, they had no reason to expect that any one among them would resort to any such act of violence, the mere fact that they were associated in minor violence would not be conclusive against them; and the lethal act, as being unexpected, will not be ascribed to a joint purpose so as to make others than the principal actor responsible for the act".

Lord Moncrieff went on to remark that this distinction had the support of many authorities. At page 96 he referred to the passage in Hume at page 270 which we have quoted earlier; and to Anderson on the Law of Scotland at page 48 as follows:

"But persons acting together are not always guilty of the acts of one of them. If a sudden brawl arise rixa per plures, sticks and fists being used, and one draws a knife and stabs another, the friends of the man who used the knife are not guilty of murder if the injured man dies".

Lord Moncrieff commented that this gave a concise illustration of the doctrine that secondary responsibility for a criminal act arises only in cases of reasonable expectation. At page 97, commenting in the circumstances in Docherty, he stated:

"But in this case the weapon which was used was a hatchet which was the property of the appellant and which must have been present visibly in the room; and it seems to me that in these circumstances either of the assailants must have ascribed to him a common expectation that in the stress of the event the other might snatch up anything which was handy and which was adapted to achieve the joint purpose".

15. The discussion by Lord Moncrieff of the responsibility of a participant for murder committed by another as a consequence of a common criminal purpose is consistent with the views expressed by Hume, that is to say, if the participant is one of a number of persons who, in his words, "have reason to expect" the use of a lethal weapon and have "joined together in an act of violence apt to be completed by its use". His discussion of this subject plainly proceeded on the basis that whether the use of a weapon was expected, and whether the violence intended by the parties was liable to lead to its use, did not depend on the subjective understanding of the participant, however that might be gathered, but on objective evidence as to the circumstances, including what must have been obvious to that participant. Implicit in what was said by Hume and Lord Moncrieff is that the participant will be held responsible for murder committed by one of the party whom he was supporting where there was an obvious risk that the weapons carried by them for carrying out the criminal purpose might be used to commit murder.
16. We now turn to Brown v. H.M. Advocate. In that case there was evidence that the two appellants had gone to the house of the deceased, who was the estranged husband of the first appellant, in order to have a confrontation with him. There was evidence that at the house they engaged in a joint attack on him in which the second appellant used a hammer, or, according to his own evidence, a metal bar, to strike him on the head. The death of the deceased was caused by a stab wound to his heart, which clearly was delivered by one or other of the appellants. However, there was no positive evidence as to which of them had stabbed him. Each of them gave evidence that he or she knew nothing about it. The second appellant said in evidence that he had picked up the metal bar en route to the deceased's house.
17. The trial judge directed the jury that in view of the nature of the fatal blow there was no room for a verdict of culpable homicide in the case of either of the appellants. That is not an issue with which we are concerned.
18. Dealing with concert as a basis on which the appellants could be convicted, the trial judge said in the course of his charge that

"before an accused person can be convicted of murder on the doctrine of concert you must be satisfied that death or at least serious injury ... was foreseeably within the scope of the common assault as embarked upon jointly by the two accused ... ". (Page 383F-G)

Later in his charge he said to the jury:

"If, however, you are satisfied that there was here some concerted ... attack by the two accused, the next question you must ask for each of them in turn is what so far as this accused is concerned was the foreseeable scope of the joint attack and, in particular, were murderous weapons to be used so as to make death or serious injury within her or, as the case may be, his contemplation". (Page 385F-G)

He went on to point out to the jury on pages 386-387 that it was open to them to find evidence of concert in the case of the first appellant, in the light of evidence relating to her having previously threatened to kill or do serious violence to the deceased; her attempt to get a witness to give a false alibi, linked with telling lies to the police; and an inference which might be drawn from her behaviour at the scene of the crime if the jury were satisfied that she had seen the hammer or metal bar being wielded by the second appellant. As regards the second appellant, there was evidence that he had tried to induce the witness to provide a false alibi; and that he had struck the deceased on the head with a hammer or metal bar. The trial judge pointed out to the jury that the real question was whether this was a weapon which might foreseeably cause serious or fatal injury. If so the jury might find it difficult to resist the conclusion that, in regard to the second appellant, "the foreseeable scope of the joint attack was indeed a murderous one, whether or not it was he who actually wielded the knife which killed Douglas Brown".

19. In delivering the Opinion of the appeal court the Lord Justice General (Hope), having pointed out that a trial judge should not withdraw the alternative verdict of culpable homicide unless he is satisfied that there was no basis at all for it in the evidence, continued as follows on page 393:

"The problem in the present case, however, is that there was only one stab wound and there were two assailants. The force and depth of the stab wound might be said to indicate nothing less than the necessary degree of wicked recklessness in the mind of the person who inflicted it. This no doubt was what the trial judge was thinking about when he said that whoever did that act was guilty of the crime of murder. But what about the other party to the attack? What evidence was there that he or she was acting with the same degree of wicked recklessness, and that in his or her case also murder was, on the evidence, the only possible verdict? The jury had to be satisfied that he or she was aware that a knife was likely to be used in the attack to take the verdict beyond one of assault. But what was there to show, once this point was reached, that he or she anticipated that the knife would be used to inflict a wound of this character?

The answers to these questions are to be found later in the charge where the trial judge was dealing with the question of concert. He reminded the jury of the various pieces of evidence which had been relied on by the Crown to implicate each accused. But it is significant that when he was dealing with this matter he told the jury that the question was whether this was a joint attack in which murderous weapons were to be used so as to make death or serious injury within his or her contemplation because these weapons could inflict death or serious injury: see pp. [385F and 387E, supra]. He did not tell them that they had to be satisfied that they both had in contemplation, as part of their joint purpose, an act of the necessary degree of wicked recklessness such as that the deceased would be stabbed by plunging a knife into his heart. This was unnecessary on the approach he had taken, since he had removed from them the verdict of culpable homicide. On the other hand, if all that was in contemplation was to use weapons to inflict serious injury, there was room for the view that this was a case of culpable homicide, since the murderous act went beyond the joint purpose and there was no evidence to show which of the two assailants used the knife. The evidence other than that relating to the force and depth of the stab wound was not such as to exclude the possibility that one of the accused had acted with a greater degree of wicked recklessness than was in the reasonable contemplation of the other at the time of the assault. It appears that this point was overlooked by the trial judge when he said that whoever did the stabbing was guilty of the crime of murder. In any event there was here a question of fact which should have been left to the jury to decide".

In these circumstances the court considered that the judge's direction which had deprived the jury of this opportunity was a misdirection, and that this had resulted in a miscarriage of justice. The appeal was accordingly allowed.

20. Mr. Jackson claimed that this passage represented a watershed in the treatment of concert in a charge of murder, so that a participant in a joint attack should not be held guilty of murder unless he had in contemplation at the time of the attack as part of the common criminal purpose an act of the necessary degree of wicked recklessness for a case of murder. Mr. Jackson also submitted that the catalyst for this change of approach was the decision in Melvin v. H.M. Advocate, in which it was held that where two persons were charged with the robbery and murder of a victim whom they had both attacked, it was open to the jury to assess the degree of recklessness displayed by each of them, and return verdicts of murder or culpable homicide in accordance with that assessment. He particularly founded on the opinion of Lord Stott at page 118:

"Where two are charged with murder the actings of the one may display such utter recklessness as to require a verdict of guilty as libelled, without its being a necessary corollary that the actings of another who is art and part in the homicide must be taken to infer the same degree of recklessness".

21. The passage in the Opinion of the Court in Brown which we have quoted in para. 19 shows that the court was concerned with what required to be established in order to render each of the accused guilty of murder by reason of concert. The court criticised the trial judge for failing to direct the jury that they required to be satisfied that the accused "had in contemplation" - apparently at the time of the attack on the deceased - "an act of the necessary degree of wicked recklessness such as that the deceased would be attacked by plunging a knife into his heart". That statement of the court calls for a number of comments.
22. In the first place, as was pointed out by Mr. Jackson and the Advocate depute, this suggests that the jury should have been concerned with what they inferred was in the mind of each of the accused. This is confirmed by the earlier reference to what "he or she anticipated". In our view, since the time of Hume the courts have approached the establishment of guilt on the basis of concert by taking an objective rather than a subjective approach and hence asking what, in the case of the individual accused, was foreseeable as liable to happen (cf Boyne v. H.M. Advocate 1980 SLT 56). Secondly, it is plain from the terms of the trial judge's charge in Brown that he put to the jury an issue as to whether each of the accused was guilty on the basis of antecedent concert, and for that purpose relied on the law as stated by Hume and in Docherty. However, it is not clear whether the appeal court was considering antecedent concert. There is no reference to the evidence which was relied on as pointing to antecedent concert, such as the second appellant's carrying of a hammer or metal bar. If the court should be understood as stating that in a case of antecedent concert it is necessary for the jury to be satisfied as to what was contemplated by each accused at the time of the attack, we consider that this approach was unwarranted. This is quite apart from the fact that, in referring to the contemplation of the murderous act such as that which actually happened, the court appears to have postulated an over-exacting requirement.
23. The Lord Justice General went on to express the view that if all that was in contemplation was the use of weapons to inflict "serious injury", there was room for the view that this was a case of culpable homicide. We have no difficulty in envisaging situations in which there would be room for a verdict of culpable homicide, if, for example, the evidence as to the circumstances indicated that all that the parties had reason to expect was the infliction of a relatively minor injury. By way of illustration we would refer to what Lord Sutherland postulated in his charge to the jury in Mathieson v. H.M. Advocate 1996 S.C.C.R. 388 at page 383E-F, where an accused expected that a knife "was only going to be used to inflict the odd cut or slash or something of that kind". However, if an accused contemplates that a weapon may be used to inflict serious injury, in pursuance of a criminal purpose, there may well be an obvious risk of the victim dying as a result of the use of the weapon.
24. In the light of these considerations we are of the view that the observations of the court in Brown we have quoted did not adequately address the issue of antecedent conduct in that case or the well-recognised approach to guilt on the basis of antecedent concert, and should not be regarded as authoritative in regard to that subject.
25. There is no reason to think that what was said by Hume and by Lord Moncrieff in Docherty does not or should not represent a correct statement of the law in regard to guilt of murder on the basis of antecedent concert. While there may be cases in which no other conclusion can reasonably be reached, it is for the jury to decide whether a person who participates in the carrying out of a common criminal purpose which leads to a fellow participant committing murder should be held criminally responsible for the murder on the basis that he knew that a weapon which could readily be used to kill was being carried for use in furtherance of that purpose, so that there was an obvious risk of murder. In such a situation it would be immaterial whether he knowingly ran that risk or was recklessly blind to it.
26. We should add that we do not accept that the decision in Melvin v. H.M. Advocate should be regarded as a catalyst for the approach taken by the court in Brown. It was plain that Melvin was not a case of antecedent concert. At page 117 Lord Cameron stated:

"In determining the quality of the crime, i.e., as between culpable homicide and murder, a jury would be entitled, in a case where intent to kill was not suggested or established or indeed any antecedent concerted intention to carry out an assault and robbery on the deceased or any other person, to consider and assess the degree of recklessness displayed by each participant and return, if their judgment so required, a discriminating verdict in accordance with their assessment".

We do not consider this decision introduced a new approach to the criminal responsibility of persons carrying out a joint attack. As the Advocate depute pointed out, the passages in Hume at pages 264 and 271, to which we have already referred, demonstrate that the degree of responsibility, if any, of persons who are present at an attack depends upon the circumstances, including their words and conduct and what was or was not known or obvious to them.

27. It is, of course, well established that, where a number of persons act together in pursuance of a common criminal purpose, each of them is criminally responsible for a crime which is committed in pursuance of that purpose, regardless of the part which he or she played, provided that the crime is within the scope of that common criminal purpose. This holds good whether the concert is antecedent or spontaneous. The submissions in the present appeal have raised the question of the relationship between concert and mens rea. In our view if the relevant concert is established, there is no separate question as to whether the individual accused had the necessary criminal intent which is required for the finding of guilt of that crime. In short, he or she is responsible for that crime in the same way as if he or she had personally committed it.
28. When the actor, by which we mean the person by whom the crime was personally committed, is identified, his guilt plainly depends on what is established to have been his own criminal intent, normally to be inferred from all the relevant circumstances. Whether another person is guilty, and, if so, of what crime, depends on whether he or she acted in pursuance of a common criminal purpose along with the actor and, if so, whether it was within the scope of that purpose, as inferred from all the relevant circumstances. Where, on the other hand, the actor cannot be identified, the position is different to the extent that the question is what crime has been committed, and, for the purpose of answering that question, what inference can be drawn as to the criminal intent associated with the act. The guilt of the individual accused depends on whether, in regard to him or her, there was a common criminal purpose and, if so, what was its scope, and not on his or her individual criminal intent.
29. As we have already stated, the nature and scope of a common criminal purpose should be discerned on an objective basis. Thus, in the case of individual accused, the question is what was foreseeable as liable to happen, and hence what was or was not obvious in this respect. The common purpose in a particular case may change over time and acquire a more serious character (Coleman v. H.M. Advocate 1999 S.C.C.R. 87).
30. In the light of what we have said above, it is open to a jury to convict an accused of murder if they are satisfied that it was committed in pursuance, and within the scope, of a common criminal purpose to which he or she was a party. It is important to emphasise that the nature of the guilt, if any, of an individual accused depends on the jury's assessment of the evidence. Thus, for example, the jury may conclude in a particular case that, while the individual accused was party to a common criminal purpose with others, it was not foreseeable that the victim might sustain serious injury. In such a case the jury might conclude, according to the part played by him or her, that he or she should be acquitted or should be convicted of a lesser crime than murder.
31. Where an individual accused knows that weapons are being carried for use in order to carry out a common criminal purpose, and these are weapons of such a nature that they can readily be used to kill, it is open to the jury to convict him or her of murder on the basis that it was foreseeable that such weapons were liable to be used with lethal effect. That is, however, dependent on the circumstances, including the way in which it was envisaged that the weapons were to be or might be used. There is no rule of law that the jury must convict. In particular it is not a rule of law that homicide in pursuance of the commission of a crime involving the use of violence is necessarily a murder. The jury may conclude that they are not satisfied, in regard to an individual accused, that it was obvious that weapons were being carried or at any rate that such weapons might be used to kill the victim. If, for example, one of two accused is carrying a stick or even a penknife which, so far as the other accused is concerned, is intended to frighten a shopkeeper whom they intend to rob, the latter might well not be guilty of murder perpetrated by the former even though he had reason to anticipate that such a weapon would or might be used for that limited purpose. Much will depend on whether the participant is reckless as to the consequences of proceeding.
32. Thus, an accused is guilty of murder art and part where, first, by his conduct, for example his words or actions, he actively associates himself with a common criminal purpose which is or includes the taking of human life or carries the obvious risk that human life will be taken, and, secondly, in the carrying out of that purpose murder is committed by someone else. It is for the Crown to prove in relation to each individual accused, inter alia, that there was a purpose of that character and scope and that the particular accused associated himself with that purpose. Where he is not proved to have associated himself with that purpose or is proved to have participated in some less serious common criminal purpose in the course of which the victim dies, the accused may be guilty art and part of culpable homicide, whether or not any other person is proved guilty of murder.
33. We turn now to the circumstances of the present case. On 12 September 1999 all five accused were in the house of the accused John Jackson. At least four of them discussed whether they should go to the house occupied by the deceased James Rankin, his father Peter Rankin and his younger brother Peter Rankin Junior, with a view to committing a robbery. The deceased was believed to have sums of money there. There was some discussion among the accused about obtaining knives with which to carry out the robbery. Jackson and the appellant Norwood said they would obtain some knives from Jackson's father-in-law who had been a chef and had a set of chef's knives. The appellant McKinnon acquired a large bone-handled knife. In due course a group consisting of at least the appellants and Jackson left Jackson's house and went to the house where the Rankins lived. Five persons in all appeared outside the front door of the house, which was at ground level. The front door was knocked in. The deceased tried to get rid of the group by pushing them into the close. His father joined in, carrying a spade or similar garden instrument. He was followed by Peter Rankin Junior. The latter gave evidence that at one stage five persons in the close or nearby split into three groups, two with the deceased, two with himself and one with his father. There was a violent confrontation in the course of which the deceased received three stab wounds to the chest, one of which proved fatal. The stab wounds were probably inflicted by the same person and with the same weapon at about the same time. The deceased's father and brother were also injured. The father had a broken arm as a result of being hit with a stick which had a nail in it. The brother received blows to his head and body caused by a stick, as well as an injury to a finger which was cut to the bone by a knife.
34. Thereafter all five accused returned to Jackson's house. When they did so, it was seen that some members of the group had bloodstains on their clothing and shoes, which had come from the deceased. There was some conversation among them as to what had happened. Jackson claimed to have "proved himself", saying that he had "stabbed the fuck out of him". The appellants McKinnon and McKay also claimed to have used a knife. Though the position was not entirely clear, the evidence appeared to suggest that Jackson was the most likely person to have inflicted the stab wounds to the deceased.
35. The case for the Crown was that all five accused were involved in planning and preparing for the robbery, that all five were involved in the violence, that all five were armed with sticks or knives, and that all five were aware that knives had been taken for the purposes of the robbery. The Crown accordingly maintained that all of them were guilty of murder on the basis that they had been involved in a concerted assault with deadly weapons which led to the death of the deceased.
36. In the course of her speech to the jury the Advocate depute maintained in support of the Crown case that the criminal responsibility of the accused depended on whether they knew or should have perceived that a weapon was likely to be used. She also maintained that the more lethal the weapon the more foreseeable were fatal consequences from its use.
37. In his charge to the jury the trial judge invited them to consider whether the group formed by the accused had gone to the door of the house with a common criminal purpose, and, if so, whether that included all of the violence that followed in respect of each of the accused and each of the victims (pages 27 and 30). He directed them that the law of concert meant that where two or more persons were acting in the course of a common criminal purpose, each member of the group might be guilty of everything that they understood or appreciated the group was liable to do, irrespective of their individual contribution to the activities of the group (page 23). He emphasised to the jury that it was important that they should be clear as to the common criminal purpose. He directed them that

"If any of the group that you thought went to the Rankins' were unaware that knives were to be carried or were liable to be used in the way I have described, such a person would not be guilty of any part of the attack involving a knife and, in effect, would not be guilty of the murder". (Page 29)

In the course of summarising his directions on the matter of concert the trial judge said:

"You have to be satisfied from the evidence you've heard, in respect of each accused, whether they were part of that criminal purpose, that they knew knives were being carried and were liable to be used in the course of the purpose that I have described, in the way I've described, and that all the violence that took place outside the Rankins' house, against each of the occupants, was a single consequence or development of that criminal purpose. When satisfied on all of those matters you can find the accused or, any of them, guilty of murder on charge 1, on the basis of concert and, it doesn't matter, as I say, who struck the fatal blow, or who, or what each accused did, so long as you were satisfied that they were involved in that way. If you are not satisfied on any of those matters, beyond reasonable doubt, you cannot reach those verdicts based on concert and, while the fifth accused [John Jackson] can be convicted on the basis of the direct evidence available, the most that accused Nos. 1 to 4 can be found guilty of, on charge 1, is of seizing and struggling with James Rankin with intent to rob him". (pages 34-35).

38. At a later stage in his charge the trial judge adverted to the scope for a verdict of culpable homicide, stating:

"However, if you thought that either the use of the knife or knives in the course of any assault did not have the qualities of a murderous intent, or wicked recklessness that I have described, you found that not to be proved or, that the question of murderous intent or wicked recklessness was absent in the case of any of the accused, simply because they were unaware that knives were being carried and were liable to be used, but at the same time the accused has involved himself in a struggle with the deceased, in the way that in a real and substantial sense contributes to the death of the deceased, that is where you can find that the accused is liable for culpable homicide. Now that is a very technical situation and, as I say, you may find it has no relevance to the present case but, I have to describe it to you and, if it does, as I say, reflect something which you believe to be in the evidence then, you can consider it".

39. Counsel for the appellants advanced two criticisms of the charge by the trial judge. The first was that the Advocate depute had been in error in relying on foreseeability, evidently in the sense of negligence, in support of her contention that the accused should be found guilty of murder. It was submitted that the trial judge should have corrected the contention advanced by the Advocate depute.
40. In our view there is no merit in this complaint. It was clear to the jury that they were expected to look to the trial judge for directions as to the law which they should apply in coming to their verdicts in respect of each of the accused. It was not incumbent on the trial judge specifically to correct the contention advanced by the Advocate depute, since his directions effectively superseded what was said by the Advocate depute.
41. The second complaint which was made about the trial judge's charge was that he had, in effect, excluded culpable homicide by restricting it to two issues before the jury, first, whether the circumstances in which the deceased was stabbed did not indicate that the assailant had a murderous intent and, secondly, whether any of the accused were unaware that knives were being carried and were liable to be used but had contributed in some sense to the death of the deceased. For the reasons given by us in the earlier part of this opinion we are satisfied that in the circumstances of this case the only real scope for the returning of a verdict of culpable homicide was that indicated by the trial judge in the passage to which we have referred. Thus, if the jury were satisfied that an individual accused was aware that knives were being carried and liable to be used in this projected enterprise, it was clearly open to them to infer that there was an obvious risk that they might be used to commit murder as a consequence or development of the pursuit of the criminal purpose of robbery which he had pursued. Such an inference was, on that hypothesis, virtually inevitable.
42. In these circumstances we are satisfied that the appellants' grounds of appeal are not well-founded. Their appeals against conviction will accordingly be refused.