R v Powell (Anthony Glassford); R v English (Philip); R v Daniels (Antonio Eval)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 25 May 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J0525-1 |
| Docket Number | No. 94/1795/Y2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 May 1995 |
[1995] EWCA Crim J0525-1
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Tucker and Mr Justice Forbes
No. 94/1795/Y2
94/1982/Y2
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR PETER FEINBERG QC appeared on behalf of THE APPELLANT POWELL
MR MICHAEL WOLKIND and MR GLENN HARRIS appeared on behalf of THE APPELLANT DANIELS
MISS JOANNA KORNER QC and MR WILLIAM BOYCE appeared on behalf of THE CROWN
Thursday 25 May 1995
THE LORD CHIEF JUSTICEOn 28 February 1994, at the Central Criminal Court before The Recorder of London and a jury, these appellants were convicted of murder and were sentenced to life imprisonment with a recommendation that each appellant should serve a minimum term of 20 years. They were each also convicted of burglary and each was sentenced to a concurrent sentence of 9 months imprisonment in respect of that. They now appeal against conviction by leave of the single judge.
It was the Crown's case that the appellants, together with another man, called at the deceased's home in South London. Seconds after he had answered his doorbell, one of the group shot the deceased at point blank range and he died a short while later. It was alleged this was a joint enterprise.
Rachel Hickey gave evidence that on Saturday 29 May 1993, she was asked on the telephone by the appellant Daniels to give him a lift. She agreed and went in a van provided by her employer. She collected the two appellants and the third man known as "Mikey" who was not brought to justice. She was instructed to drive to Daniels' home where the three men got out. They returned a few minutes later, Daniels carrying a plastic bag. She was then asked to drive back to Upper Norwood where again the three men got out of the van. Hickey said she did not see where they went. They in fact went to some stairs leading to the first floor of a block of flats where the deceased, David Edwards, lived alone. He was apparently a small-time dealer in drugs frequently supplying cannabis. On this night, four of his friends were at his home when the appellants and Mikey arrived there at about 11.20 pm. One or more of the group of three knocked at the door. Seconds after the deceased opened it, he was shot in the chest. There was evidence from his friends in the flat and from neighbours that they heard the bang just after the door was opened.
Lisa Steel, who lived nearby, also heard the bang from the gun. Looking out of her window she saw three black men running along the pathway towards Hickey's van. They ran one after the other, the middle man being the tallest and the other two of similar height. She said the tallest was carrying in one hand horizontally what she thought was an iron bar. She helped in the creation of a photofit of the tallest of the three. Later she attended an identification parade at which both appellants appeared but did not pick out either of them. Shortly after dropping the three men off, Hickey also heard the bang. All three of the men returned to the van and shouted at her to get out of the area. Daniels got into the front passenger seat, Powell and Mikey in the back. According to Hickey, Daniels shouted at Powell "You should not have gone up there and done that". He was, she said, "going mad at Powell". The latter responded merely by complaining about the blood on his clothes and at no time ventured any denial. At the end of the journey Hickey found a gun in the passenger footwell where Daniels had been sitting. The plastic bag, now empty, was also on the floor. She was told to dispose of the gun and took it into her flat. Next day, she cleaned out the van and found blood on the carpet in the back. In cross-examination she agreed that she was devoted to Daniels and disliked Powell. She pleaded guilty to doing an act in relation to the gun intended to pervert the course of justice.
In interview, both appellants exercised their right to remain silent. Daniels did not give evidence or call any evidence at the trial. Powell did testify. He said he had been introduced to "Mikey" for the first time that evening. The three men had arranged to go to Norwood to buy some cannabis from a man known to the other two but not to him. They drove first to the home of Daniels who went inside and returned with something in a plastic bag. Although when they got to a block of flats all three got out of the van, he, Powell, did not go to the deceased's front door. He was present at the scene purely to purchase cannabis. He never saw a gun or knew anything about it until after it was fired. He claimed that as the three ran away Daniels was in the lead, Mikey was in the middle and he was at the back. He denied that there was any blood on his clothing and in that he was supported by evidence from his father's girlfriend who did his laundry and said there was no blood on any garment of his which she handled.
At the end of the prosecution it was submitted on behalf of Daniels that the case against him should be withdrawn from the jury. The Recorder rejected that submission. Although a ground of appeal suggesting he erred in that respect was lodged, it has not been pursued before us; rightly so in our view.
However, before The Recorder summed up, there was legal argument as to the appropriate direction on mens rea in relation to a secondary party on a charge of murder.
After conflicting submissions inviting him to sum up in accordance with two different lines of authority, the learned Recorder directed the jury as follows:
"If you are satisfied on the evidence as to the identity of that person —the one who fired —you may consider that he has no defence to the charge of murder. Whoever he was he was not alone. Two other men were with him the whole or part of the relevant time. About them the law says this: where two or more persons embark on a joint criminal enterprise, each is liable for the acts done in pursuance of that joint enterprise, and that includes liability for unusual consequences if they arise from the execution of the joint enterprise, but if one of the adventurers goes beyond what has been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of the unauthorised act. It is for you to decide whether what was done was part of the joint enterprise or went beyond it and was, in fact, an act unauthorised by the joint enterprise.
I referred to tacit agreement because you may consider that is the commonest situation, and may be it is the one here. There is no evidence about an express agreement other than one to purchase cannabis.
The law goes further and adds this: 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."
That direction is in accordance with the line of authority starting with Chan Wing Sui v The Queen 80 Cr App R 117 and, as one would expect from The Recorder, is expressed with total clarity. Mr Feinberg QC accepts that the preponderance of authorities and in particular the most recent cases, have followed that line. He also conceded that he could not in principle distinguish the present case from Chan Wing Sui. Nevertheless, supported by Mr Wolkind for Daniels, he submits that the Recorder was wrong and should have followed the other line of authority to which we will later refer.
Chan Wing Sui was a case of murder in the course of a joint enterprise by the three appellants to commit robbery. The advice of the Board was given by Sir Robin Cooke who said at page 121:
"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, authorisation, which may be expressed but 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".
That statement of the law has been adopted and followed in a number of later decisions. It is, moreover, in accordance with the decision of the House of Lords in Maxwell v Director of Public Prosecutions for Northern Ireland 68 Cr App R 128. In that case Sir Robert Lowry CJ, giving the judgment of the Court of Appeal of Northern Ireland which was warmly approved by the House of Lords, said at page 141:
"The situation has something in common with that of two persons who agree to rob a bank on the understanding, either express or implied from conduct (such as the carrying of a loaded gun by one person with the knowledge of the other), that violence may be resorted to. The accomplice knows, not that the principal will shoot the cashier, but that he may do so; and, if the principal does shoot him, the accomplice will be guilty of murder."
Lord Scarman in the same case said at page 153:
"The principle thus formulated has great merit. It directs attention to the state of mind of the accused —not what he ought to have in contemplation, but what he did have; it avoids definition and classification,...
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