R v S (MN) and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 15 July 2010 |
| Neutral Citation | [2010] EWCA Crim 1622 |
| Docket Number | Case No: 200901501 B5 200905058 B5 200901503 B5 200902103 B5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 July 2010 |
[2010] EWCA Crim 1622
COURT OF APPEAL (CRIMINAL DIVISION)
Before: Lord Justice Hughes Vice President of the Court of Appeal Criminal Division
Mr Justice Wyn Williams
and
Mr Justice King
Case No: 200901501 B5 200905058 B5 200901503 B5 200902103 B5
T20087548 T20087105 T20087269 T20087252
Mr R Carey-Hughes QC and Mr M Dacey (instructed by Paytons and Partners) for the Appellant A
Mr R Carey-Hughes QC and Mr M Dacey (instructed by B K R W) for the
Appellant B
Mr I Goldrein QC and Mr S Lally (instructed by B H Mohammed) for the
Appellant C
Mr R Carey Hughes QC and Mr M Dacey (instructed by Charles Simmons) for the Appellant D
Mr J Higgs and Mr J Polnay (instructed by DPP) for the Crown
Hearing dates : Thursday 17 th June 2010
Lord Justice Hughes:
These appeals raise once again questions related to the concept of common or joint enterprise, and specifically as applied in cases where the charge is murder. On the facts which the jury must have found, there was an attack made upon the deceased in his home by three of the appellants, which had been organised by the fourth. No weapon was involved; the attack consisted of a beating. The case was put by the Crown as a common enterprise. It was not possible to identify individual acts of violence or to say who had done precisely what. The judge gave the jury a written document encapsulating the gist of his directions and providing a summary by way of steps to a verdict. The jury was directed that a defendant was guilty, inter alia, if:
“he participated in a plan to assault [the deceased] in which he intended to cause him some harm, less than really serious bodily harm, but realised that there was a real risk that one of the others might cause him really serious bodily harm and such harm was caused, and he did not dissociate himself from the plan.”
The judge had a substantial number of issues to cover in his directions apart from that of joint enterprise liability. It is common ground that he did so with care and accuracy. His decision to give the jury both (commendably brief) written directions and, even more helpfully, a ‘route to verdicts’ should be applauded. Judges need to decide case by case whether such aids are required, but a multi-handed murder with more than one possible basis for verdict to be considered is one which will ordinarily call for a ‘steps to verdict’ document at least. In his directions, the judge dealt with precision with murder, manslaughter, participation and the general principles of common enterprise, including the concept of fundamental and unforeseen departure from the common purpose. His directions passed through a number of editions before being presented to the jury, and in their final form were agreed by all counsel. In every respect but two they are still agreed to be admirable. But the passage which we have quoted is contended to give rise, on closer inspection and further thought, to two difficulties:
i) it told the jury that a defendant would be guilty if he participated foreseeing that others might cause the deceased grievous bodily harm (‘GBH’); it did not speak of foresight of GBH intentionally being done; and
ii) although it was dealing with possible guilt on the basis of joint enterprise, it nowhere required the jury first to be sure that at least one of the assailants (whether identified or not) had committed murder as a principal.
The contention of the appellants is that these two features are fatal to the safety of the conviction. The first submission requires us to consider the true import of the decision of the House of Lords in R v Rahman [2008] UKHL 45; [2009] 1 AC 129.
The jury convicted all four of murder. It must have rejected the contentions of A and D that they had no part in the beating, and of C that he had not arranged it.
The judge's direction
After dealing with murder and manslaughter and making crystal clear the difference in relation to intent between those two offences, the judge explained the principles of joint enterprise. His direction included the words:
“It will be necessary, therefore, to decide what, if anything, had been agreed and what a particular participant realised a fellow participant might well do in carrying out the plan.”
Thus far there can be no possible complaint.
The document then did what is most helpful of all to a jury. It applied the law as explained to the decision making process in the case. It set out in a few lines the “Route to Verdicts”. It is this, critical, part of the direction, on which this appeal is focused. It said this:
“Count 1: In relation to the defendant whose case you are considering, are you sure that:
(a) He himself unlawfully assaulted [the deceased] and caused really serious bodily harm, with that intention ? OR
(b) He participated in some way with others in a plan to cause really serious bodily harm to [the deceased] and such harm was caused ? OR
(c) He participated in a plan to assault [the deceased] in which he intended to cause him harm less than really serious bodily harm, but realised that there was a real risk that one of the others might cause him really serious bodily harm, and such harm was caused, and he did not dissociate himself from the plan ?
(d) If you are sure of any of (a), (b) or (c) then that defendant is guilty of murder….”
And the document went on to deal with the alternative count of manslaughter in a similar manner.
On this appeal, the critical paragraph is (c). The appellants submit that it is defective, firstly, because it ought to have read:
“…..but realised that there was a real risk that one of the others might intentionally cause him really serious bodily harm…..”
and, secondly, because it should have followed a preliminary requirement that the jury be sure that at least one of the assailants (whether identified or not) killed the deceased with intent to do him GBH.
Common or joint enterprise
The expressions ‘common enterprise’ or ‘joint enterprise’ may be used conveniently by the courts in at least three related but not identical situations:
i) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals, as for example when three robbers together confront the security men making a cash delivery.
ii) Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a weapon so that D1 can use it in a robbery, or drives D1 to near to the place where the robbery is to be done, and/or waits around the corner as a get-away man to enable D1 to escape afterwards.
iii) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.
These scenarios may in some cases overlap.
There is utility in the use of the expressions ‘common enterprise’ or ‘joint enterprise’ in each of these situations, especially to introduce a jury to the proposition that a man may be responsible for acts which his own hand did not physically commit, if those acts are within the common purpose. But, as Lord Brown pointed out in R v Rahman at paragraph 63, the third scenario depends upon a wider principle than do the first and second. The important difference is that in the third type of scenario, D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A.
This case involves, as many murder cases do, consideration of the third type of scenario. Here, as the jury must have found, there was an agreed common purpose to commit crime A, the beating of the deceased. The question was this. If in the course of it, one or more participants inflicted not simply injury but grievous bodily harm, when had crime B (murder) been committed by those who did not themselves personally inflict it ?
The first submission and R v Rahman
In Rahman there was a group attack by something between 7 and 15 people on two. The group of 7 – 15 was armed with sticks, bars and the like. In the course of the attack, somebody (unknown) delivered a fatal stab in the back to one of the victims in circumstances which suggested that it must have been done with an intent to kill (not merely to do GBH). The defendants contended that there was no basis for attributing to them any intention to kill, but rather (at most) an intention to cause GBH. The judge directed the jury that the defendants would be guilty of murder if they foresaw that another participant might, in the course of the common enterprise to attack the victims, use a lethal weapon to kill the deceased with intent to kill him or to do him really serious injury. The issue was whether he ought also to have directed the jury that the stabber's intent to kill (as distinct from an intent to cause GBH) either amounted to a fundamental departure from the common purpose or was capable of doing so, so that unless a defendant foresaw that heightened intent he was not guilty. That question was answered ‘no’. The common factor in the reasons given in their Lordships' speeches was that since murder may be committed either with the intention to kill or with the intention to cause really serious bodily harm, the difference between those two intentions could not form a fundamental departure from the common purpose. Therefore it mattered not which of them the secondary participant foresaw. What mattered in that case was whether a secondary participant had foreseen the use of a knife.
In those circumstances, there are in Rahman observations to the effect that it is foresight of D1's act rather than of his intent which is crucial. It is necessary for us to decide whether they mean that ...
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