Court of Appeal
| Published date | 01 August 1996 |
| Date | 01 August 1996 |
| DOI | 10.1177/002201839606000304 |
| Subject Matter | Court of Appeal |
COUR
T
OF
APPEAL
MENS REA OF SECONDARY PARTY TO
MURDER
RvPowell and Daniels
Three men called at the house
of
a man later described as a small-time
drug dealer. As soon as he opened the door, he was shot dead by a single
shot. One
of
the men was not apprehended, but the other two were
charged with murder. There was a cut-throat defence. Powell claimed that
he had called on the dealer merely to purchase cannabis. Daniels claimed
that he knew nothing about the existence
of
a gun before it was used.
Powell gave evidence in support of his claim; Daniels did not. Both were
convicted. On appeal, in RvPowell and Daniels
[1996]
I Cr App R 14,
the question considered by the court was that which it eventually certified
as a point
of
law
of
general public importance, under s 33(2)
of
the
Criminal Appeal Act 1968. To found a conviction
of
murder, the intent
which must be proved is an intent to kill or to commit grievous bodily
harm. In the case
of
asecondary party to a homicide, must he have that
intent himself or does it suffice that he has realised that the primary party
might kill with that intent? At the trial, there were conflicting submissions
before the court as to which
of
these propositions was correct. There are
two different lines
of
authority on this question and the issue at the trial
was as to which of them the recorder should accept as the basis
of
the
direction he would be giving to the jury upon the mens rea which the
prosecution had to prove in this case, in relation to the secondary party
to the crime (that is, the party who, in the opinion of the jury, did not fire
the gun). The recorder directed the jury that, where there is a joint
enterprise, all are responsible for what has been (even tacitly) agreed and
even for the unusual consequences
of
carrying
out
the enterprise, so that
any claim to an absence
of
responsibility must be based on the fact that
what was done went beyond the joint enterprise and was thus unauthorised
by it. He added that
'if
B or C realised, without agreeing to such conduct
being used, that A may kill or intentionally inflict serious injury, and they
none-the-Iess continue to participate with A in the venture, that will
amount to a sufficient mental element
...
'.
It
was accepted on appeal that this direction was based on the line of
authority stemming from Chan Wing Siu v R
[1985]
AC 169 and that, on
the facts, the present case could not be distinguished from that case. The
advice given by the Board in Chan Wing Siu was based on the proposition
that the secondary party is liable for the acts
of
the primary offender
when he foresees, even though he does not necessarily agree with, them.
'That
there is such a principle is not in doubt', added the Board. The
House of Lords would appear to have accepted that proposition in
Maxwell v
DPP
for
Northern Ireland (1978) 68 Cr App R 128. One
advantage which flows from the acceptance
of
this proposition is that
where, as in RvHyde
[1991]
I QB 134, an attack is made on a victim by
236
Court
of
Appeal
three appellants and it is unknown which of them struck the fatal blow,
all will be guilty on the basis that, if it can be established that the
possibility of the fatal blow was contemplated by all of them, all must
share the blame. In that case, Lord Lane CJ corrected a statement he had
made in R v Slack
[1988]
I QB 775 which conflicted with the above
principle, terming it 'wrong, or at least misleading'.
The appellants boldly contended that the cases in that line of authority
'are all wrong', by reason of the fact that they equate foresight with intent.
To be guilty of murder, either as the primary or the secondary party to a
joint enterprise, the party must himself have the necessary intent
'to
kill
or, at least, to do grievous bodily harm'. That proposition was founded
on the line of authority exemplified by R v Maloney
[1985]
AC 905; R v
Niedrick (1986) 85 Cr App R 267; and R v Hancock and Shankland
[1986]
AC 267.
It
is to be remarked that, although two of those cases are
decisions of the House of Lords, none
of
them concerned a secondary
party to the homicide, for each of those appellants was the primary actor.
In R v Hancock and Shankland, however, Lord Scarman said that foresight
is no more than evidence of intent and does not necessarily imply intent.
In R v Ward (1987) 85 Cr App R
71-a
case of a secondary
party-it
was
argued that the three cases cited immediately above had changed the law,
for proof of murder requires proof that the alleged murderer had himself
amurderous intent. The appellants also relied on the statement made by
Lawton U in R v Reid (1976) 62 Cr App R 109 that where one of several
men kills another,
'if
such an injury was not intended by the others, they
must be acquitted of murder'. In the present case, however, the court held
that no reliance could be placed on 'that half-sentence': it was a dictum
which, if it contradicted the main line of principle, 'was wrong'. The
explanation of the dictum was that it was uttered in a case of manslaughter,
where considerations arise which are different from those which arise in
murder: cf R v Perman (p 238 below). The line of authority relied on by
the appellants in this case has none-the-less persisted. Thus, in R v Smith
[1988]
Crim LR 616, Russell U in effect repeats Lord Scarman's statement
that foresight is not intent: it is only evidence of it.
It
has been argued that, authority apart, the main trend of opinion, on
which the recorder relied in the present case, gives rise to an anomaly
that, although it must be proved that the principal actor himself had the
requisite intent, yet when it comes to a secondary party, only a lesser
mens rea (foresight) need be established. That anomaly was remarked on
in the Law Commission's Consultative Paper No 131. Notwithstanding
this criticism of the authorities relied on by the recorder, the Court of
Appeal held that, in view of the support which it had (including that of
the House of Lords, in Maxwell v
DPP
for Northern Ireland), any
resulting anomaly, if unacceptable, would have to be dealt with by the
House of Lords or by Parliament. If one accepts the general principle that
the mens rea required can be established by proof of foresight, at least
one, albeit subsidiary, point remains to be determined: how grave a risk
would the appellant have to foresee?, and (perhaps more difficult) to what
extent must he have foreseen it? Would 'a fleeting thought' as to the
consequences suffice to show that he had those consequences 'in
237
Journal
of
Criminal Law
contemplation?' In the present case, the recorder's direction to the jury
that they must decide whether the defendant 'realised without agreeing to
such a conduct being used' was held on appeal to be correct, so that it
would seem that there is no need to ask the jury to 'quantify the risk' or
to quantify the accused's degree of belief in the existence of that the risk.
MENS REA OF SECONDARY PARTY TO MANSLAUGHTER
R v Perman
Whereas in R v Powell and Daniels (p 236 above), the Court
of
Appeal
was concerned with the significance of the proof of a joint enterprise
where the appellant has been convicted of murder, the question which
arose in R v Perman
[1996]
I Cr
App
R 24 was as to the significance of
that fact where the appellant, although originally charged with murder,
was convicted of manslaughter. The Crown's case was that there was an
agreement for a joint enterprise between two youths (both of whom had
taken drugs and had consumed alcohol) to rob a newsagent's shop. The
appellant's co-accused had in his possession a sawn-off shotgun which the
appellant (it was alleged) knew he intended to use in order to threaten
and frighten the persons in the shop. The unlawful use of the gun resulted
in the death of a person in the shop and the prosecution argued that,
although the circumstances did not justify their pursuing the charge of
murder against the secondary party, the use of the gun was nevertheless
part of, and within scope of, the joint enterprise, so that the appellant (the
secondary party) was guilty of manslaughter. The appellant claimed that
there had been no joint enterprise, that he had not taken part in the
robbery, being merely a bystander in the shop. His co-accused was found
guilty of murder, after pleading guilty to robbery and possessing a firearm
with intent; the appellant was found guilty of manslaughter, of robbery
and possession with intent. Unlike the situation in R v Powell and Daniels
(above) there was no cut-throat defence, for the primary actor seems to
have been at pains to resist all suggestions made by the prosecution that
there had been joint enterprise implicating the appellant. Indeed, it was
for this reason, no doubt, that the judge refrained from giving the jury a
'warning' as to the co-defendant's evidence, lest he devalued it.
On his appeal from conviction of manslaughter, the appellant's principal
argument was that the judge was in error in directing the jury that, if the
appellant had agreed to the gun being used to frighten people in the shop,
then the appellant was guilty of manslaughter even if he had not known
that the gun was loaded and had believed that it was unloaded. The judge
had directed the jury that there was no need for the prosecution to prove
that the appellant had realised that his co-defendant might intend to kill
or cause serious harm, for it was sufficient that 'he realised (when he took
part in the robbery) that the co-defendant would use the gun, if it were
necessary, in such a way as to cause serious harm' and (he added) 'the
very least sort of harm is the causing of fright or hysteria by threatening
to use the gun'. The judge added a warning that, if what was done was
238
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