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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Powell and Another, R v. [1997] UKHL 45; [1999] AC 1; [1997] 4 All ER 545; [1997] 3 WLR 959; [1998] 1 Cr App Rep 261; [1998] Crim LR 48 (30th October, 1997) URL: http://www.bailii.org/uk/cases/UKHL/1997/45.html Cite as: [1997] UKHL 45

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Powell and Another, R v. [1997] UKHL 45; [1999] AC 1; [1997] 4 All ER 545; [1997] 3 WLR 959; [1998] 1 Cr App Rep 261; [1998] Crim LR 48 (30th October, 1997)

LORD GOFF OF CHIEVELEY

My Lords,

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

LORD JAUNCEY OF TULLICHETTLE

My Lords,

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

LORD MUSTILL

My Lords,

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

    My own reasoning was, in summary, as follows:

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

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

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

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

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

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

LORD STEYN

My Lords,

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

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

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

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

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

    That brings me to the second argument. If the application of the accessory principle results in a form of constructive liability that would be contrary to principle and it would be a defect in our criminal law. But subject to a qualification about the definition of the mens rea required for murder to which I will turn later, I would reject the argument that the accessory principle as such imposes a form of constructive liability. The accessory principle requires proof of a subjective state of mind on the party of a participant in a criminal enterprise, viz. foresight that the primary offender might commit a different and more serious offence. Professor Sir John Smith, "Criminal Liability of Accessories: Law and Law Reform" (1997) 113 L.Q.R. 464, explained how the principle applies in the case of murder:

 "Nevertheless, as the critics point out it is enough that the accessory is reckless, whereas, in the case of the principal, intention must be proved. Recklessness whether death be caused is a sufficient mens rea for a principal offender in manslaughter, but not murder. The accessory to murder, however, must be proved to have been reckless, not merely whether death might be caused, but whether murder might be committed: he must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime. Recklessness whether murder be committed is different from, and more serious than, recklessness whether death be caused by an accident." (My emphasis.)

The foresight of the secondary party must be directed to a real possibility of the commission by the primary offender in the course of the criminal enterprise of the greater offence. The liability is imposed because the secondary party is assisting in and encouraging a criminal enterprise which he is aware might result in the commission of a greater offence. The liability of an accessory is predicated on his culpability in respect of the greater offence as defined in law. It is undoubtedly a lesser form of mens rea. But it is unrealistic to say that the accessory principle as such imposes constructive criminal liability.

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

 

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

    The observations which I have made about the mental element required for murder were not directly in issue in the appeals under consideration. But in the context of murder the application of the accessory principle, and the definition of murder, are inextricably linked. For that reason I have felt at liberty to mention a problem which was not addressed in argument. That counsel did not embark on such an argument is not altogether surprising. After all, in Reg. v. Cunningham [1982] AC 566 the House of Lords declined to rationalise and modernise the law on this point. Only Lord Edmund-Davies expressed the hope that the legislature would undertake reform: see p. 583B-C. In my view the problem ought to be addressed. There is available a precise and sensible solution, namely, that a killing should be classified as murder if there is an intention to kill or an intention to cause really serious bodily harm coupled with awareness of the risk of death: 14th Report of the Law Revision Committee, (1980), para. 31, adopted in the Criminal Code, for England and Wales, (Law Com. No. 177), (1986), clause 54(1). This solution was supported by the House of Lords Select Committee on Murder and Life Imprisonment, HL Paper 78-1, 1989, par 68.

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

LORD HUTTON

My Lords,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    My Lords, I consider that there is a strong line of authority that where two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise. This was decided by the Court of Appeal, constituted by five judges, in Reg. v. Smith (Wesley) [1963] 1 W.L.R. 1200. In that case after an argument in a public-house, where the appellant and three other men had been causing a disturbance, the appellant and one of the other men went outside where they collected and threw bricks through the glass door of the premises, in order to "tear up the joint." While they were so doing, one of the remaining two men, who were still inside, continued the argument which developed into a fight in the course of which one of them, A., stabbed the barman with a knife, killing him. At the time of the stabbing the appellant was outside the premises, but he knew that the man who stabbed the barman was carrying the knife on his person. All four men were charged with murder. The trial judge directed the jury:

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

The appellant was convicted of manslaughter.

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

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

And, at p. 1206F:

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

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

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

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

 "where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what had been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that unauthorised act. Finally, he says it is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise."

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

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

 "The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.

 "That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorization, which may be express or is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight."

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

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

 "The defendant's second point relies on Sir Robin Cooke's use of the word 'authorisation' as a synonym for contemplation in the passage already cited from his judgment in Chan Wing-Siu v. The Queen [1985] AC 168, 175. Their Lordships consider that Sir Robin used this word--and in that regard they do not differ from counsel--to emphasise the fact that mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise. The word 'authorisation' explains what is meant by contemplation, but does not add a new ingredient. That this is so is manifest from Sir Robin's pithy conclusion to the passage cited: 'The criminal culpability lies in participating in the venture with that foresight.'"

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

 "Each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."

    There is therefore a strong line of authority that participation in a joint criminal enterprise with foresight or contemplation of an act as a possible incident of that enterprise is sufficient to impose criminal liability for that act carried out by another participant in the enterprise.

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

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

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

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

 "It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today."

    Therefore I consider that the judgment in Reg. v. Anderson was not intended to constitute a departure from the principle stated in Reg. v. Smith, and that the acceptance of Mr. Lane's test was regarded by the Court of Appeal as an alternative way of formulating the principle stated in Reg. v. Smith, although as Professor Smith has pointed out, as a matter of strict analysis, a distinction can be drawn between the two tests.

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

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

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

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

    In reliance upon Reg. v. Moloney and Reg. v. Hancock Mr. Feinberg, on behalf of the appellants Powell and Daniels, submitted to this House, as he submitted to the Court of Appeal, that as a matter of principle there is an anomaly in requiring proof against a secondary party of a lesser mens rea than needs to be proved against the principal who commits the actus reus of murder. If foreseeability of risk is insufficient to found the mens rea of murder for a principal then the same test of liability should apply in the case of a secondary party to the joint enterprise. Mr. Feinberg further submitted that it is wrong for the present distinction in mental culpability to operate to the disadvantage of a party who does not commit the actus reus and that there is a manifest anomaly where there is one test for a principal and a lesser test for a secondary party.

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

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

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

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

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

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

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

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

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

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

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

 "Unwittingly, the judge with regard to a time prior to the burglary, unaided by those authorities, because they were decided after he had directed the jury in the present case, seems to have directed them as though it was not necessary for a defendant charged with murder himself to possess one of the necessary intents: it was enough to convict him if he contemplated that one of his co-accused had one of those intents and that he no more than foresaw the possibility of that intent being carried into effect by that person."

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

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

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

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

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

 "we feel bound to follow and apply the Hyde formulation having regard to the approval which it has received in a number of decisions in this court and to the fact that it is in accordance with the House of Lords' decision in Maxwell. If the result is an unacceptable anomaly, it must now be for the House of Lords or the legislature to say so."

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

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

 "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder."

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

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

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

Sir Robin Cooke stated, at p. 177D:

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

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

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

 "There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind. But there is no other relevant distinction. As Sir Robin Cooke observed, the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it."

    Therefore for the reasons which I have given I would answer the certified question of law in the appeals of Powell and Daniels and the first certified question in the appeal of English by stating that (subject to the observations which I make in relation to the second certified question in the case of English) it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm. Accordingly I would dismiss the appeals of Powell and Daniels.

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

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

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

 "If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture."

     However in Hyde the attack on the victim took place without weapons and the Crown case was that the fatal blow to the victim's head was a heavy kick. The problem raised by the second certified question is that, if a jury is directed in the terms stated in Hyde, without any qualification (as was the jury in English), there will be liability for murder on the part of the secondary party if he foresees the possibility that the other party in the criminal venture will cause really serious harm by kicking or striking a blow with a wooden post, but the other party suddenly produces a knife or a gun, which the secondary party did not know he was carrying, and kills the victim with it.

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

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

 "It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today."

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

 "The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend." (emphasis added).

    There is also strong support for the appellant's submission in the decision of Carswell J. (as he then was), sitting without a jury in the Crown Court in Northern Ireland, in Reg. v. Gamble [1989] N.I. 268. In that case the four accused were all members of a terrorist organisation, the Ulster Volunteer Force, who had a grievance against a man named Patton. The four accused entered upon a joint venture to inflict punishment upon him, two of them, Douglas and McKee, contemplating that Patton would be subjected to a severe beating or to "kneecapping" (firing a bullet into his kneecap). In the course of the attack upon him Patton was brutally murdered by the other two accused. His throat was cut with a knife with great force which rapidly caused his death. In addition he was shot with four bullets, and two of the bullet wounds would have been fatal had his death not been caused by the cutting of his throat. Douglas and McKee had not foreseen killing with a knife or firing of bullets into a vital part of the body. It was argued, however, on behalf of the prosecution that the joint enterprise of committing grievous bodily harm, combined with the rule that an intent to cause such harm grounded a conviction for murder in respect of a resulting death, was sufficient to make the two accused liable for murder notwithstanding that they had not foreseen the actions which actually caused death. After citing the relevant authorities Carswell J. rejected this argument and stated, at p. 283F:

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

 "The infliction of grievous bodily harm came within the contemplation of Douglas and McKee, and they might therefore be regarded as having placed themselves within the ambit of life-threatening conduct. It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder on the ground that it was outside the common design.
 "To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards a greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Sui. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting."

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

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

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

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

    I have already stated that the issue raised by the second certified question in the appeal of English is to be resolved by the application of the principle stated by Lord Parker in Reg. v. Anderson, at p. 120B. Having so stated and having regard to the differing circumstances in which the issue may arise I think it undesirable to seek to formulate a more precise answer to the question in case such an answer might appear to prescribe too rigid a formula for use by trial judges. However I would wish to make this observation: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa.

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

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

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