R v Rahman (Islamur) and Others
| Jurisdiction | England & Wales |
| Judge | LORD BINGHAM OF CORNHILL,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 02 July 2008 |
| Neutral Citation | [2008] UKHL 45 |
| Date | 02 July 2008 |
| Court | House of Lords |
and others
[2008] UKHL 45
Appellate Committee
Lord Bingham of Cornhill
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellants:
Michael Harrison QC
Yunus Valli
(Instructed by Sharpe Pritchard)
Respondents:
Robert Smith QC
Paul Greaney
(Instructed by Crown Prosecution Service)
My Lords,
On 4 March 2005 the four appellants were convicted in the Crown Court at Leeds before Wakerley J and a jury of murdering Tyrone Clarke on 22 April 2004. The indictment contained a second count, of violent disorder, on which no verdict was returned. It was not alleged or proved that any of the appellants had personally struck the fatal blow or blows and they were convicted as accessories or secondary parties to the joint enterprise which culminated in the death of the deceased. The Criminal Division of the Court of Appeal (Hooper LJ, Gibbs and Roderick Evans JJ) dismissed their appeals against conviction on 23 February 2007, for reasons given by Hooper LJ: [2007] EWCA Crim 342, [2007] 1 WLR 2191. Their appeals to the House raise a narrow but significant question on the direction to be given to the jury concerning the liability of an accessory on facts such as arose in the present case.
The facts
There was, it seems, a history of confrontation between the deceased and some of his friends on one side and a group of young Asians including two of the appellants on the other. In a chance encounter involving minor violence on 20 April 2004 some members of the latter group were worsted. There was talk of revenge, and on the afternoon of 22 April the deceased and some of his friends were sighted by the opposing group. A number of young Asians gathered. They were carrying a variety of weapons including baseball bats, a cricket bat, a scaffolding pole, a metal bar, a table leg and pieces of wood. Their numbers increased, and as they walked through the streets there were two groups, one of 10 to 12 with a group of about 5 to 7 shortly behind. The deceased and his friend armed themselves with pieces of wood taken from a fence and fighting broke out between the two groups. A further group of Asian men arrived and the deceased and his friend were pursued as they sought to escape through lanes and a ginnel (the Rock ginnel), until they reached a grassy area at the back of some houses in Brett Gardens, Beeston in Leeds. The deceased tried to enter the rear gate of one of the houses, but was caught there and attacked by a group of between 7 and 15 persons. After he collapsed to the ground some members of the group were seen to assault him with blunt instrument weapons and kicks. The attack lasted a short time, estimated at less than a minute. The police arrived quickly at the scene, and the group dispersed and ran off, save for two of the appellants who were arrested at the scene. There was some evidence that one member of the Asian group had been seen with a knife.
On post mortem examination of the body of the deceased it was found that he had sustained three knife wounds. One of these, on the left side of the back between the shoulder blade and the midline, just to the right of the left shoulder blade, was made by a knife which entered the body relatively straight and penetrated to a depth of 8 centimetres, causing massive haemorrhage, rapid collapse, rapid unconsciousness and death. The evidence was that this wound required severe force and was the principal injury of the deceased, from which he stood no chance of survival. There was another knife wound in a similar position on the right side of the back, which penetrated to a depth of 9 centimetres. It also required severe force and was potentially a fatal wound. The third wound, to the left shoulder, penetrated soft tissue and did not penetrate the chest. The evidence was that the first two of these wounds were probably caused by the same knife in similar movements, and it was possible that one knife had been used to inflict all three wounds. The knife was estimated to have a blade of 8 to 9 centimetres and a maximum width of 1.5 centimetres at the hilt. Scientific evidence suggested that the deceased was still standing when stabbed. A number of recent soft tissue injuries were also found on the body of the deceased, but these were not significant and would not have required hospital treatment. Some of these injuries could have been caused by a blunt instrument such as a baseball bat or a piece of wood.
There was no evidence that any of the appellants inflicted the fatal injuries. The participant who did was probably not apprehended. The prosecution alleged that the role of each appellant in the attack involved either the deliberate and intentional infliction of serious physical harm to the deceased or, by their conduct, the intentional encouragement of others to do likewise; that each appellant shared a common intention that serious bodily harm should be inflicted; and that the circumstances of the attack were such that each of them knew that weapons such as baseball bats, a scaffolding pole and a knife or knives might be used to inflict serious bodily harm.
The evidence of each appellant was that he had joined the enterprise with at most an intention to cause serious harm, without knowledge or foresight that anyone else involved in the assault intended to kill, that he did not have a knife and did not know or foresee that anyone else had a knife and that, accordingly, the acts of the primary offender were outside the scope of any joint enterprise to inflict serious bodily harm. The first, second and fourth-named appellants denied participation in the fatal assault. The third-named appellant admitted being present, wearing a balaclava, with intent to join in the assault, but said that before striking any blow he had been stunned by a blow to his head caused by a brick thrown by the deceased's friend.
It is accepted that the jury must have found that each appellant participated in the attack either (i) by using violence to the victim, or (ii) by surrounding him to enable others to use such violence, or (iii) by being present intending that his presence should encourage others to attack the victim.
The criminal liability of accessories
In the ordinary way a defendant is criminally liable for offences which he personally is shown to have committed. But, even leaving aside crimes such as riot, violent disorder or conspiracy where the involvement of multiple actors is an ingredient of the offence, it is notorious that many, perhaps most, crimes are not committed single-handed. Others may be involved, directly or indirectly, in the commission of a crime although they are not the primary offenders. Any coherent criminal law must develop a theory of accessory liability which will embrace those whose responsibility merits conviction and punishment even though they are not the primary offenders.
English law has developed a small number of rules to address this problem, usually grouped under the general heading of "joint enterprise". These rules, as Lord Steyn pointed out in R v Powell (Anthony), R v English [1999] 1 AC 1, 12, are not applicable only to cases of murder but apply to most criminal offences. Their application does, however, give rise to special difficulties in cases of murder. This is because, as established in R v Cunningham [1982] AC 566, the mens rea of murder may consist of either an intention to kill or an intention to cause really serious injury. Thus if P (the primary offender) unlawfully assaults V (the victim) with the intention of causing really serious injury, but not death, and death is thereby caused, P is guilty of murder. Authoritative commentators suggest that most of those convicted of murder in this country have not intended to kill.
As the Privy Council (per Lord Hoffmann) said in Brown and Isaac v The State [2003] UKPC 10, para 8,
"The simplest form of joint enterprise, in the context of murder, is when two or more people plan to murder someone and do so. If both participated in carrying out the plan, both are liable. It does not matter who actually inflicted the fatal injury. This might be called the paradigm case of joint enterprise liability".
It is (para 13) "the plain vanilla version of joint enterprise". Sir Robin Cooke had this same simple model in mind when, giving the judgment of the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168, 175, he said:
"… a person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert".
Countless juries have over the years been directed along these lines, the example of a bank robbery in which the masked robbers, the look-out man and the get-away driver play different parts but are all liable being often used as an illustration. In this situation the touchstone of liability is the intention of those who participate.
But there is what Sir Robin Cooke in Chan Wing-Siu v The Queen, p 175, called a "wider principle". In R v Powell (Anthony), R v English, above, as Lord Hutton made plain in the opening sentence of his leading opinion (p 16), the House had to consider a more difficult question: 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 first appeal, that of Powell and Daniels, three men...
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