Intending to Assist in Murder: When Will the Use of a Deadly Weapon Constitute Going Beyond the Confines of an Agreed Plan? R v Harper [2019] EWCA Crim 343
| Date | 01 June 2019 |
| Published date | 01 June 2019 |
| Author | Zach Leggett |
| DOI | 10.1177/0022018319855789 |
| Subject Matter | Case Notes |
Case Note
Intending to Assist in Murder:
When Will the Use of a Deadly
Weapon Constitute Going Beyond
the Confines of an Agreed Plan?
R v Harper [2019] EWCA Crim 343
Keywords
Accessory, supervening act, weapon, investigation, admissibility
In R v Harper [2019] EWCA Crim 343, the appellant and a friend, Cahill, were on a Christmas Eve night
out. Apparently the appellant was said to have been out to ‘get pissed and cause trouble’ and as a result
had been asked to leave the pub they were in. They proceeded on to a working men’s club where they
encountered the victim, Mr Kerry and two others, Mr Frost and Miss Minto. An affray broke out at the
club where Harper punched Frost and fought with Minto. When Kerry intervened, Cahill attacked him
from the front, while Harper attacked him from behind, attempting to hit him on the back of the head
with a glass. After she had been tackled to the ground, Harper continued screaming and kicking out.
Meanwhile, Cahill produced a knife and stabbed Kerry which resulted in his death.
Harper was charged and convicted as an accessory to murder on the basis that she assisted or
encouraged Cahill in the killing of Kerry. At trial, Harper had admitted behaving badly that night but
denied assisting or encouraging Cahill. She argued that she had not intended that Cahill assault the
victim let alone cause him serious harm or death. In relation to the attack with the beer glass, Harper
argued that she had only intended to throw the contents of the glass over the victim and not to attempt to
inflict upon him grievous bodily harm.
Evidence was presented at trial from a prison guard where Harper was purported to have said that she
was in for murder and that she had confessed to being complicit in the killing but she was pleading not
guilty. This was refuted by counsel for the defence in cross-examination, but the prison officer main-
tained her position.
The two grounds of appeal raised by Harper were that the confession evidence presented by the prison
officer should not have been admitted at trial and that the judge erred in his direction of the jury in
relation to joint enterprise when he said:
It is Ms Harper’s case that she was unaware that Mr Cahill had a knife at the material time. Knowledge or
ignorance that Mr Cahill had a particular weapon at the material time will constitute evidence relevant to your
determination of whether you can be sure Ms Harper intentionally encouraged and/or assisted Brian Cahill to
assault Owen Kerry unlawfully with intent to kill Mr Kerry or cause him really serious bodily injury. (at [26])
It was contended by the appellant that this direction did not give sufficient weight to the importance of
her knowledge of the presence of the knife which had constituted an ‘overwhelming supervening act by
the perpetrator’ (at [26]).
With regard to the prison officer’s evidence, it was argued that due to her occupation she fell within s
67(9) of the Police and Criminal Evidence Act 1984 (PACE) as a person ‘other than a police officer
The Journal of Criminal Law
2019, Vol. 83(3) 182–185
ªThe Author(s) 2019
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DOI: 10.1177/0022018319855789
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