Attorney General's Reference No 3 of 2004 [2005] EWCA Crim 1882

Case No 200405579C5[2005] EWCA Crim 1882
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON A REFERENCE BY THE ATTORNEY GENERAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 13 July 2005
Before
LORD JUSTICE HOOPERMR JUSTICE GRIGSONSIR CHARLES MANTELL
Attorney General’s Reference under section 36 of the Criminal Justice Act 1972, No 3 of 2004
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr D. Perry and Mr R. McCoubrey for the Attorney General
Mr Geoffrey Cox QC and Mr M. Sherratt for the acquitted person
Judgment

Introduction

[1]On 22 July 2002 H, the acquitted person, was convicted of manslaughter on an indictment for murder. The prosecution case was that H recruited K and C to kill R and that it was K who on 2 July 1999 shot R in the head at point blank range. H, in evidence, denied the suggestion that he was involved in any way with the killing. K and C, H’s co-defendants, were convicted of murder and subsequently sentenced to life imprisonment.[2]The jury were directed that they could not convict H of murder unless they found that K had committed the murder, that H had counselled that offence and that murder was within the scope of what H had advised or ordered or persuaded K to do. The judge did not direct the jury, as he could have done, that they could also convict of murder if H realised that in the course of the joint enterprise the primary party (or principal) might kill with intent to kill or cause grievous bodily harm.[3]On 23 July 2003 H’s conviction for manslaughter was quashed by CACD on the basis that the judge had misdirected the jury on the issue of manslaughter. Rose LJ giving the judgment of the Court set out the passage in the summing-up directing the jury as to manslaughter (we have substituted a letter for the names): “Now if, members of the jury, you are not sure that H ordered K to murder R or to cause him really serious bodily injury but you were sure that he ordered, advised, encouraged or persuaded K to cause some harm to R but not to kill him or to cause some harm less than really serious bodily injury and if you were sure that K, having received that order, in company with C or whoever else was the other man who was there if it was not C, went beyond and killed R, H would not be guilty of murder but he would be guilty of manslaughter. Now, let me just try and put a little more on the canvass to explain what I am about at the moment. By reference to the facts of this case, this verdict could come into play if you were sure that what H counselled K to do was to frighten R by, for example, threatening him with force, by assaulting him or kidnapping him or doing damage to his home and if you were sure he had not ordered any really serious bodily harm to be done to R but in the event things went wrong, in the sense that K and C, or whoever else it was, for whatever reason went beyond what H had ordered and killed R that would be a circumstance in which, as I said to you, in that event H would be guilty of manslaughter. Now, the reason is simple, the law holds a person responsible for the consequences of setting in train an unlawful piece of conduct and plainly if you were satisfied so that you were sure that what he had ordered was to threaten, to assault him in a less than serious way, otherwise damage his home, that would all be unlawful conduct and if you set in train unlawful conduct and death ensues as a result, even though you have not counselled it the law holds you responsible for manslaughter."[4]The direction contained no reference to the use of a loaded firearm.[5]Rose LJ summarised the submission made by H’s then counsel, Mr Kelson QC:
“The submission which is made by Mr Kelson on behalf of the appellant is that the appellant could only be convicted of manslaughter if the jury were sure that he had contemplated the use of a lethal weapon and the jury ought so to have been directed. Because the authorities show, says Mr Kelson - and this is not in dispute - that a defendant only carries responsibility for the consequences of the actus reus he specifically agreed to. In other words the judge's direction was too wide: if the agreement was merely to frighten or cause damage, submits Mr Kelson, that would not be a sufficient basis on which the appellant could be convicted of manslaughter, if the death was caused by the discharge of a loaded firearm.”
[6]The Court rejected the submissions of Mr Waters QC for the respondent to the effect that the judge's direction was given on the basis that everyone connected with the trial knew that the case centred around the use of a gun and the directions given by the learned judge, in the passage which we have read, predicated the use of a firearm. Rose LJ continued:
“As it seems to us, the direction given by the learned judge was flawed in the way which we have identified because it did not focus the jury's attention, in relation to the activity of frightening, on the use of a loaded firearm.”
The Court directed that a new indictment should be preferred and H should be re-arraigned on that indictment.[7]The appeal was thus allowed on a narrow basis. The thrust of Mr Kelson’s argument had been that that the appellant could only be convicted of manslaughter if the jury were sure that he had contemplated the use of a lethal weapon. Whether he made the further argument which was subsequently to succeed on the retrial is not clear.[8]On 8 August 2003 a fresh indictment was preferred.[9]On 26 August 2003 H was re-arraigned and it was ordered that there should be a preparatory hearing. That took place before Sir Stephen Mitchell, sitting as a Deputy High Court Judge, who had been assigned to preside over the retrial.[10]Having regard to H’s acquittal of murder at the original trial the Crown proposed to put the case against him on the basis that he would be guilty of manslaughter if the jury were satisfied that he: i. sent K and C to R to apply pressure on him through terror; ii. knew that K and C would have with them a loaded firearm; iii. knew that in order to maximise the pressure on R, the firearm might be deliberately discharged near R Importantly it was further agreed (although not referred to in the Attorney General’s Reference) that the judge had to decide the issue on the basis that H did not intend physically to injure or kill R nor had he foreseen the possibility of physical injury or death to R. The judge was asked to proceed on this assumption because, so it appears, it was thought that not to make that assumption would be inconsistent with the acquittal of murder. We shall describe these “facts” and assumptions as the “assumed facts”.[11]Mr Cox QC, who appeared for H, submitted to Sir Stephen that if the prosecution were successful in establishing the assumed facts, that would not found a conviction for manslaughter. He relied particularly on Powell and English [1999] 1 AC 1. In the words of Sir Stephen summarising the submission:
“The act which caused death, so the argument runs, is an act of fundamentally different character from the act contemplated by H. The act which caused death was the deliberate discharge of a firearm deliberately aimed at Mr Raja. The act contemplated by H was the deliberate discharge of a firearm in circumstances which excluded the deliberate causing, by the use of the firearm, of any physical injury, let alone the deliberate causing of death.”
[12]On 2 December 2003 Sir Stephen ruled in H’s favour that, on the assumed facts, the offence of manslaughter would not be made out because the facts reveal “no basis upon which a jury could conclude that H contemplated the act which in this case caused death” and accordingly he was not a party to the joint enterprise which led to the unlawful killing of R. The prosecution had relied on some authorities which, so the judge held, did not survive the reasoning of the House of Lords in Powell and English. At 42C of his decision Sir Stephen said:
“I have come to the conclusion that the application of the foresight test to the agreed facts of this case reveals that there is no basis upon which a jury could conclude that H contemplated the act which in this case caused death.”
[13]The prosecution applied for leave to appeal under s 35(1) of the Criminal Procedure and Investigations Act 1996. On 8 December 2003 CACD held that they had no jurisdiction to entertain an appeal from the judge’s ruling.[14]On 9 December 2003 the prosecution offered no evidence against H and a verdict of not guilty was entered.[15]The Attorney General has referred the following questions to the Court:
“1. Where a secondary party to a joint enterprise contemplates that the carrying out of the joint enterprise will involve the commission of an act intended to frighten the victim (for example by the discharge of a firearm) and the principal carries out the act with an intention to kill or cause serious bodily harm thus causing the death of the victim, does the variation in the intent of the participants at the time the act is done preclude the act from being part of the joint enterprise or may a jury nevertheless convict the secondary party of manslaughter? 2. Where the Court of Appeal quashes the conviction and orders the retrial of a person who was originally convicted of manslaughter on an indictment for murder, may the prosecution present its case at the retrial on the basis of facts which, if correct, would establish guilt of manslaughter as a lesser included offence of murder?”
[16]H has stated that he does not consent to his name being disclosed during the proceedings (Rule 6 Criminal Appeal (Reference of Points of Law) Rules 1973).[17]At the outset of the hearing Mr Cox submitted that the Court had no jurisdiction under section 36 to hear the Reference because H had not been acquitted on a trial on indictment. We rejected that submission and gave brief reasons for so doing.

The first question

[18]There is no dispute that, on the assumed facts, H could have been convicted of manslaughter if the deliberate discharge of the firearm by K or C had accidentally caused R’s death or if the firearm had accidentally been discharged and caused R’s death. Both H and the principals would be guilty of manslaughter by an unlawful act if the jury found that “all sober and reasonable people would inevitably realise [that such an act] must subject the victim to, at least, the risk of some harm resulting therefrom, albeit not serious harm” (Church [1966] 1 QB 59, at 70). Mr Cox made this concession both before Sir Stephen and before us. He was right to do so.[19]What caused the death of R was the deliberate discharge by K of the firearm aimed at R. However, the judge had to assume that H had not foreseen the possibility of physical injury or death, let alone the deliberate causing of death. H had contemplated the deliberate discharge of the firearm (on the assumed facts) but not at R. The question in this case is whether the fact that H had not foreseen the possibility of physical injury or death means that he is not guilty of manslaughter even though he could have been guilty of manslaughter (the other ingredients being satisfied) if the gun had been deliberately discharged and had accidentally killed R or had accidentally been discharged with the same fatal result.[20]The Attorney General submits that H is guilty of manslaughter because if the primary party had carried out his plan and R had been shot accidentally, H would have been guilty of manslaughter. The fact that the primary party went further and murdered R should not affect H’s criminal responsibility for manslaughter.[21]Mr Perry relies on public policy to support his argument. If H would have been guilty of manslaughter if death had been caused accidentally by the primary party carrying out the plan to frighten R, then it would be quite wrong if the fact that the primary party went outside the scope of the plan prevented his conviction for manslaughter. What distinguishes what was planned to happen and what did happen is only the decision by K to shoot R rather than frighten R by discharging the gun. Instead of discharging the gun with the intent to frighten K discharged the gun with intent to kill (or cause grievous bodily harm).[22]Courts have recognised the apparent anomaly in acquitting a party of manslaughter when the primary party goes beyond the scope of the joint enterprise and kills. As Carswell J said in Gamble [1989] N.I. 268, at 284, the anomaly is on its face difficult to accept. He found an explanation in a note by Plowden on the case of Saunders and Archer (1576) 2 Plowd. 475.[23]It is sometimes suggested that the rule enables a defendant in these circumstances to escape criminal liability altogether. It does not. Mr Perry accepted that if the trial indictment had contained a count or counts to reflect the criminality of the plan to frighten with a gun, H could have duly been convicted and received substantial punishment. Not only, so Mr Perry submits, would it be difficult for the prosecution to anticipate what counts are needed, but the additional count or counts would overload the indictment. We find this an unconvincing argument. To convict a person of manslaughter simply because of the supposed difficulty of drafting appropriate alternative counts (or because of the failure to do so at the first trial) seems wrong to us. Prosecutors were warned of the danger of not including alternative offences in Greatrex and Bates [1999] 1 C App R 126.[24]Whether the rule is a good rule or a bad rule, there is no doubt, and Mr Perry accepts this, that if the primary party goes outside the scope of the joint enterprise (whatever that may mean) then the secondary party is not guilty of murder or manslaughter. He would not be guilty of manslaughter even though he would be guilty of manslaughter (the other ingredients being satisfied) if the plan had been carried out as envisaged and death had accidentally been caused. There is no dispute about that and could not be on the law as it stands, confirmed as it was in Powell and English.[25]Thus if the killing is within the scope of joint enterprise, the secondary party is guilty of murder, if he has the necessary mens rea for a secondary party (foresight of possibility), or manslaughter if he has the necessary very reduced mens rea for manslaughter- provided, of course, the other ingredients of the relevant offence are established.[26]In this case, if the killing of R was inside the scope of the joint enterprise, then the jury could properly have convicted H of manslaughter on the assumed facts in the particular circumstances set out in paragraph 18 above.[27]There is no dispute that the same joint enterprise principles to a secondary party whether he is present or absent from the scene (see e.g. Rook [1997] Cr App R 327). The same issues arise in the case of H and C, although the answers may well be different.[28]This case is concerned with the test for deciding whether an act is or is not within the scope of a joint enterprise. Other phrases are also used to describe “joint enterprise”, such as common design and joint venture, but we shall use the phrase “joint enterprise”.[29]It is clear after Powell and English that if the secondary party realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm, then the secondary party is guilty of murder. The killing, with the necessary intent, having been foreseen as a possibility by the secondary party, will be or will, as Mr Cox accepted, almost certainly be within the scope of the joint enterprise. On the assumed facts, H did not have that foresight.[30]It would also follow that if the secondary party realised that in the course of the joint enterprise the primary party might kill in circumstances which in law amounted to manslaughter, then the secondary party is guilty of manslaughter. The killing, having been foreseen as a possibility by the secondary party, will be (or almost certainly will be) within the scope of the joint enterprise. On the assumed facts H did not have that foresight.[31]The first question referred to this Court by the Attorney General asks whether the secondary party is guilty of manslaughter if he contemplates the commission of an unlawful act to frighten and the principal carries out that act with the necessary intention for murder. Would the killing be within the scope of the joint enterprise?[32]Mr Perry concedes (rightly in our view) is that the test for whether what the primary party did is within or outside the scope of the joint enterprise requires the application of a subjective test. Did the secondary party foresee the possibility that the primary party would do what he did? It is preferable to define the scope of the joint enterprise in this way rather than by using such language as “Did the act go beyond what had tacitly been agreed?” or “Did he depart from the concerted action of the common design?”. That is established by Powell and English (see e.g. 31C-D). Nor is a test fashioned on the law of causation probably very helpful. Earlier cases which talk of “must have anticipated” may also now be ignored.[33]The issue in this case is what does the secondary party have to have foreseen as a possibility? There is no dispute between Mr Perry and Mr Cox that it is an act and in the case of English, as in this case, it is the act which caused the death. Lord Hutton in Powell and English said: “The first issue is what is the degree of foresight required to impose liability under the principle stated in Chan Wing-Siu [1985] A.C. 168. On this issue I am in respectful agreement with the judgment of the Privy Council in that case that the secondary party is subject to criminal liability if he contemplated the act causing the death as a possible incident of the joint venture, unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.” (Underlining added)[34]Mr Perry says: the act which caused the death in the instant case was the deliberate discharge of a loaded gun. If H foresaw that as a possibility (and H did on the assumed facts), he could be convicted of manslaughter, the deliberate discharge of the gun being within the scope of the joint enterprise. Given that the risk of manslaughter was within the scope of the joint enterprise to frighten by discharging a loaded gun, the fact, in this case, that the primary party went further and deliberately shot R with the loaded gun does not and cannot take the act of the primary party outside the scope of the joint enterprise.[35]Mr Cox says: the act which caused the death was the deliberate discharge of a loaded gun deliberately pointed at R. Anything less than the foresight of the possibility of the deliberate discharge of the gun at R takes the killing outside the scope of the joint enterprise and H is not guilty of manslaughter.[36]We note in passing that, if the defendant had that foresight then, as a matter of fact, he is likely to be convicted of murder. A jury is likely to conclude that the defendant realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm. However a conviction is not inevitable as the case of Gamble shows.[37]The problem of defining the test to determine whether the act of the primary party was, or was not, within the scope of the joint enterprise is further complicated by the fact that manslaughter and murder both require the defendant to have unlawfully caused the death of someone and that the difference between the two offences lies only in the mental element. Murder requires intent to kill or cause grievous bodily harm (for the primary party) whereas manslaughter requires only the mens rea of the unlawful act which caused the death. There is the added complication that the offence of manslaughter requires no foresight even of injury. Mr Perry argues that the only difference between what H had in mind and what happened was that K had the necessary mens rea for murder. That he submits, relying on authority, is insufficient to take the deliberate shooting at K outside the scope of the joint enterprise.[38]It is worth noting that there are offences other than murder which permit a verdict on a lesser offence where the only difference between the offences is in the mental element, e.g. sections 18 and 20 of the Offences Against the Person Act 1861. However offences such as robbery and theft have a different actus reus as well as mens rea.[39]The question (it is agreed) being “What was the act which caused the death?”, we take the view, untrammelled by any authority, that the answer to that question is the answer given by Mr Cox and not that given by Mr Perry. If a person was asked what caused R’s death, he would answer, we think, K shot him and he might add at point blank range. If he did give Mr Perry’s answer (he deliberately discharged the loaded gun), the questioner would then say “At him?”, to which the answer would be “Yes”.[40]In Powell and English, Lord Hutton said:
“… there will be cases giving rise to a fine distinction as to whether or not the unforeseen use of a particular weapon or the manner in which a particular weapon is used will take a killing outside the scope of the joint venture, but this issue will be one of fact for the common sense of the jury to decide.”
[41]Mr Cox stresses the words “the manner in which a particular weapon is used”. On the assumed facts, H knew that the gun would be discharged to frighten, K’s use of it to shoot R takes it outside the scope of the joint venture. Applying Lord Hutton’s words to this case, it seems to us that Mr Cox must be right.[42]Nor do we think that Mr Perry’s public policy arguments are as strong as he contends. If A and B agree that B will unlawfully give V a light punch and, unforeseen as a possibility by A, B “goes mad” and, by punching kills B intending to kill B or cause him grievous bodily harm, why should A be guilty of manslaughter simply because if V had fallen to the ground as a result of the slap, A would have been guilty of manslaughter?[43]The public policy argument may seem to have more force in this case because of the assumed facts. But the assumed facts have a measure of unreality about them. If H had been charged with murder and, on the assumption that the jury were sure of the assumed facts, then a jury might have had little difficulty in concluding that H realised that the primary party might kill in circumstances amounting to manslaughter. The jury might well find that unlawfully discharging a loaded gun near R carried with it that risk and that H was aware of that risk. However, in this case, the assumed facts, precluded such a finding because, on the assumed facts, H had not foreseen the possibility of physical injury or death to V. The peculiar “facts” of this case should not be used in support of Mr Perry’s public policy argument. Nor does the public policy argument find support in Powell and English.[44]The facts of English’s case were (taken from the headnote):
“… the defendant, E., who was aged 15 at the time of the offence, and W. were convicted of the murder of a police sergeant on the basis of joint enterprise. Both the defendant and W. attacked the deceased with wooden posts. At the trial it was the Crown's case that the defendant was present when W. produced the knife with which the fatal injuries were inflicted. It was maintained on the defendant's behalf that there was evidence that he had fled the scene before W. produced the knife.”
[45]The House of Lords allowed the appeal of English because the trial judge, in the words of Lord Hutton (30):
“did not qualify his direction on foresight of really serious injury by stating that if the jury considered that the use of the knife by Weddle was the use of a weapon and an action on Weddle's part which English did not foresee as a possibility, then English should not be convicted of murder. As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Criminal Appeal held in Reg. v. Anderson, that English should not be found guilty of manslaughter.”
[46]Lord Hutton said (28-29): “Mr. Sallon, for the appellant, advanced to your Lordships' House the submission (which does not appear to have been advanced in the Court of Appeal) that in a case such as the present one where the primary party kills with a deadly weapon, which the secondary party did not know that he had and therefore did not foresee his use of it, the secondary party should not be guilty of murder. He submitted that to be guilty under the principle stated in Chan Wing-Siu the secondary party must foresee an act of the type which the principal party committed, and that in the present case the use of a knife was fundamentally different to the use of a wooden post.My Lords, I consider that this submission is correct. It finds strong support in the passage of the judgment of Lord Parker C.J. in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, 120 which I have set out earlier, but which it is convenient to set out again in this portion of the judgment: ‘It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.’ The judgment in Chan Wing-Siu's case [1985] A.C. 168 also supports the argument advanced on behalf of the appellant because Sir Robin Cooke stated, at p. 175: ‘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." (Emphasis added.) There is also strong support for the appellant's submission in the decision of Carswell J., sitting without a jury in the Crown Court in Northern Ireland, in Reg. v. Gamble [1989] N.I. 268. In that case the four accused were all members of a terrorist organisation, the Ulster Volunteer Force, who had a grievance against a man named Patton. The four accused entered upon a joint venture to inflict punishment upon him, two of them, Douglas and McKee, contemplating that Patton would be subjected to a severe beating or to "kneecapping" (firing a bullet into his kneecap). In the course of the attack upon him Patton was brutally murdered by the other two accused. His throat was cut with a knife with great force which rapidly caused his death. In addition he was shot with four bullets, and two of the bullet wounds would have been fatal had his death not been caused by the cutting of his throat. Douglas and McKee had not foreseen killing with a knife or firing of bullets into a vital part of the body. It was argued, however, on behalf of the prosecution that the joint enterprise of committing grievous bodily harm, combined with the rule that an intent to cause such harm grounded a conviction for murder in respect of a resulting death, was sufficient to make the two accused liable for murder notwithstanding that they had not foreseen the actions which actually caused death. After citing the relevant authorities Carswell J. rejected this argument and stated, at pp. 283-284: ‘When an assailant 'kneecaps' his victim, i.e. discharges a weapon into one of his limbs, most commonly into the knee joint, there must always be the risk that it will go wrong and that an artery may be severed or the limb may be so damaged that gangrene sets in, both potentially fatal complications. It has to be said, however, that such cases must be very rare among victims of what is an abhorrent and disturbingly frequent crime. Persons who take a part in inflicting injuries of this nature no doubt do not generally expect that they will endanger life, and I should be willing to believe that in most cases they believe that they are engaged in a lesser offence than murder. The infliction of grievous bodily harm came within the contemplation of Douglas and McKee, and they might therefore be regarded as having placed themselves within the ambit of life-threatening conduct. It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder on the ground that it was outside the common design. To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards a greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Siu. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting.’ In my opinion this decision was correct in that a secondary party who foresees grievous bodily harm caused by kneecapping with a gun should not be guilty of murder where, in an action unforeseen by the secondary party, another party to the criminal enterprise kills the victim by cutting his throat with a knife. The issue (which is one of fact after the tribunal of fact has directed itself, or has been directed, in accordance with the statement of Lord Parker C.J. in Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, 120b) whether a secondary party who foresees the use of a gun to kneecap, and death is then caused by the deliberate firing of the gun into the head or body of the victim, is guilty of murder is more debatable although, with respect, I agree with the decision of Carswell J. on the facts of that case.” ‘It seems to this court that to say that adventurers are guilty of manslaughter when one of them has departed completely from the concerted action of the common design and has suddenly formed an intent to kill and has used a weapon and acted in a way which no party to that common design could suspect is something which would revolt the conscience of people today.’ ‘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." (Emphasis added.) ‘When an assailant 'kneecaps' his victim, i.e. discharges a weapon into one of his limbs, most commonly into the knee joint, there must always be the risk that it will go wrong and that an artery may be severed or the limb may be so damaged that gangrene sets in, both potentially fatal complications. It has to be said, however, that such cases must be very rare among victims of what is an abhorrent and disturbingly frequent crime. Persons who take a part in inflicting injuries of this nature no doubt do not generally expect that they will endanger life, and I should be willing to believe that in most cases they believe that they are engaged in a lesser offence than murder. The infliction of grievous bodily harm came within the contemplation of Douglas and McKee, and they might therefore be regarded as having placed themselves within the ambit of life-threatening conduct. It may further be said that they must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder on the ground that it was outside the common design. To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards a greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Siu. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting.’[47]Both the passages cited from Anderson and Morris and Gamble provide an answer to the public policy arguments raised by Mr Perry.[48]It seems to us that the acquittal of manslaughter of Douglas and McKee in Gamble, approved by Lord Hutton “on the facts of that case”, provides strong support for the submissions made by Mr Cox.[49]Mr Perry sought to distinguish Gamble by saying that what took the actions of the primary party out of the scope of the joint enterprise was the use of the knife. If the primary party had shot the victim that would have been within the scope. He points to where Lord Hutton says (in the passage which we have already cited):
“… whether a secondary party who foresees the use of a gun to kneecap, and death is then caused by the deliberate firing of the gun into the head or body of the victim, is guilty of murder is more debatable …”
In that passage Lord Hutton is referring to murder presumably because he thought that the secondary party, who knew that grievous bodily harm was to be inflicted during the knee-capping, would have realised that in the course of the joint enterprise the primary party might kill with intent (at least) to cause grievous bodily harm.[50]We do not think that Gamble can be distinguished in the way which Mr Perry submits. It was the unforeseen act of deliberate killing rather than punishing which took the killing out of the scope of the joint venture, and not the mere change in weaponry, with the consequence that Douglas and McKee were acquitted of manslaughter. Indeed Lord Hutton said a little later:
“However I would wish to make this observation: if the weapon used by the primary party is different to, but as dangerous as, the weapon which the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and the latter used a knife to kill, or vice versa.”
Mr Perry does however point out that if “he foresaw that the primary party might use a gun to kill”, then it will follow that he is guilty of murder whatever the weapon because the killing will be within the scope of the joint enterprise (paragraph 27 above).[51]We return again to the question: “For the purposes of determining whether the primary party, K, was acting outside the scope of the joint enterprise, is the act which caused the death, as Mr Perry argues, the deliberate discharge of a loaded gun by K or, as Mr Cox argues, the deliberate discharge of a loaded gun deliberately pointed at R?”.[52]It seems to us that the answer to the question is to be found by applying the “fundamentally different test”. Mr Sallon, arguing the case of English, submitted (as we have seen) that the use of a knife was fundamentally different to the use of a wooden post and Lord Hutton said:
“I consider that this submission is correct” (see paragraph 46 above). In Uddin[1999] 1 Cr. App. R. 319 this Court, applying Powell and English, said (at p. 329): “If the jury conclude that the death of the victim was caused by the actions of one participant which can be said to be of a completely different type to those contemplated by the others, they are not to be regarded as parties to the death whether it amounts to murder or manslaughter.”
Professor Sir John Smith in “Criminal Law” (Smith and Hogan, 10th Ed. at page 162) gives another example of both the application of the subjective test and an analysis of the relevant act: Mahmood [1995] RTR 48, [1994] Crim LR 368. He wrote:
“A and B took a car without the consent of the owner. There followed the usual police chase. A, the driver, abandoned the car in gear with the engine running so that the car went on and killed a baby. The jury convicted B as well as A of manslaughter. Although the jury, being properly directed, must have found as a fact that B did foresee that A might do such an act, the Court of Appeal quashed B’s conviction, holding there was no evidence on which they could find that B foresaw such an exceptional act of gross negligence.”
[53]According to Uddin the test is one for the jury. However if the jury could not properly find that that the act causing the death was within the scope, then the judge should so rule. So in Powell and English Lord Hutton said in considering the case of English, (at page 30):
“As the unforeseen use of the knife would take the killing outside the scope of the joint venture the jury should also have been directed, as the Court of Criminal Appeal held in Reg. v. Anderson, that English should not be found guilty of manslaughter.”
[54]In the instant case Sir Stephen Mitchell ruled that the act done by K was of a fundamentally different character from any act contemplated by H. We agree.[55]We turn to Mr Perry’s submission that an act cannot, as a matter of law, be outside the scope of joint enterprise if the only difference between the act the possibility of which was foreseen and the act which occurred is the state of mind of the primary party. Mr Cox submits that any such authority is no longer good law.[56]We note that no such principle can be found in Powell and English. It would require the jury to convict of manslaughter albeit that the act of the primary party was “fundamentally different” to that contemplated even as a possibility. Going back to the example we gave in paragraph 42, on Mr Perry’s analysis, the only difference between what B did and what A agreed he would do, was that B intended to kill or cause grievous bodily harm. Mr Perry accepts, as he has to, that if B had used a knife (and A had not foreseen that possibility) then A would not be guilty of manslaughter. If on the other hand, so Mr Perry submits, B uses his fists in a manner which was unforeseen as a possibility by A and in a manner which was fundamentally different from what A had foreseen even as a possibility, then A is guilty of manslaughter. Indeed he goes further and has to go further if his proposition is right. If A and B agreed only that B should unlawfully threaten V, and B “went mad”, A would be guilty of manslaughter. If the unlawful threat had caused the death of V (the other ingredients being satisfied) A would have been guilty of manslaughter and therefore, so Mr Perry argues should be guilty of manslaughter however unforeseen the conduct of B and however fundamentally different it was.[57]Mr Perry referred us to Roberts, Stephens and Day [2001] EWCA Crim 1594. Roberts, Marc Day and Ian Day were charged with murder. Roberts and Ian day were convicted of murder, Marc Day of manslaughter. That part of the judgment relating to Marc Day’s conviction is the relevant part in the present case. The facts were:
“4. … The 17th of July 1999 was a Saturday. Marc Day was socialising at the Rumours club. Paul Gardener, the man who was to die, was also present. A minor incident occurred when the deceased, as we will refer to him, was said to have stumbled onto Marc Day. Nothing significant happened however and any difficulty that there was broken up by the club manager. 5. The next day, Sunday 18th July, Marc Day was again at the club with Ian Day and Stephen Roberts. The deceased was there also. He was with one Dean Hall. There were no exchanges between the parties. Ian Day left early. Marc Day, Roberts, Kelly Day (she was Marc Days's sister) and a man called Peter Melvyn went to a local chip shop. The deceased and Dean Hall were also at the chip shop. 6. As the Day party left the shop the deceased started to shout abuse at them. Marc Day proceeded to telephone Ian Day. He arrived in a van or truck. The three appellants went looking for the deceased. They found him ... . Ian Day proceeded to punch the deceased, probably three times to the head. That caused him to fall backwards. He hit his head on the kerb. Ian Day then kicked him three times to the head, seemingly the right-hand side of the head. Meantime Marc Day was fighting with Dean Hall. Marc Day was knocked to the ground and kicked. Roberts meanwhile had followed Ian Day and then he gave Marc Day a hand. The deceased died as a result of a kick or injury to the left-hand side of his head causing severance of the left vertebral artery which led to a subarachnoid haemorrhage. Eye witnesses said that the blow was either perpetrated by the driver Ian Day or one of the other two.”
[58]Mr Fitzgerald QC for Marc Day submitted:
“that the jury had to be satisfied that the defendant whom they were considering contemplated or foresaw that an act of the kind which in the result was perpetrated might be perpetrated. Here Marc Day must be shown to have contemplated or foreseen that one or other of his co-defendants might not merely punch the deceased but kick him to the head if and when he fell to the ground. Such a kicking would, it is said, be an act of a different quality from throwing a punch.”
[59]The Court did not dissent from that proposition but went on to hold that Marc Day had in evidence contemplated that kicking of the sort in question might occur during a fight of this kind. “That being so there was no issue as to the quality of the act foreseen by Marc Day” (paragraph 49).[60]Laws LJ continued a little later:
“52. … it is not part of the law of joint enterprise that a secondary party, B, must share the mens rea of principal offender, A - see Slack [1989] QB 775 and Hide [1991] 1 QB 134 where it was made clear that foresight of what the principal may do is sufficient mens rea for the accessory even if there is no actual agreement between him and the principal. In Powell and English itself a major question was whether a secondary party in a murder case must be shown to have been actuated by the mens rea required in the principal offender, and the question was answered in the negative. The subject matter of a joint enterprise is not a state of mind or intention but an objective act which it is contemplated will or might be done. 53. That proposition we think provides the key to the right result in a class of case which is not, so far as counsel's researches have revealed, distinctly the subject of any authority. Suppose that the participants in a joint enterprise all propose or foresee the same kind of violence being inflicted on their victim, let it be punching with the possibility of kicking to follow. On that they are at one. But two them harbour a subjective intention to inflict really serious injury by means of such violence. The third harbours only, or foresees or intends only, that some harm might be done. One of those actuated by an intent to do grievous bodily harm punches or kicks the victim just as all three foresaw. The victim falls and suffers a subdural haemorrhage and dies. The principal is guilty of murder as he had the mens rea required. So also is the accessory who, like him, intended or contemplated the infliction of the serious injury. What of the third adventurer? Mr Fitzgerald submits he must escape altogether because he did not foresee a murderous state of mind would be harboured by his fellows. Yet if his fellows had entertained only an intention to do some harm and otherwise the facts were the same, all three would be guilty of manslaughter. It does not seem to us that that can be right. In such a case there was a joint enterprise at least to inflict some harm, and that is not negated by the larger intentions of the other two adventurers. In our judgment in such a case there is no reason why the participants should not be convicted and sentenced appropriately as their several states of mind dictate. That was what was done here. Marc Day's conviction is perfectly safe. His appeal, like those of the others, is dismissed.”
[61]This case is authority for the proposition that the failure to “foresee [that] a murderous state of mind would be harboured by his fellows” does not, of itself, mean that the what the primary party did was outside the scope of the joint enterprise. However, as Laws LJ made clear, in his example, the participants all foresaw the same kind of violence being inflicted on their victim, let it be punching with the possibility of kicking to follow. One could put it another way. What happened was (so a jury would inevitably find) not fundamentally different from what Marc Day had foreseen might occur.[62]We turn to Po Ming Li and others CACD (The Vice President Rose LJ, Holland and Langley JJ) 25/07/1997 No. 9605202W3, relied upon by Mr Perry. The decision just preceded the judgment of the House of Lords Powell and English. The earlier cases relied upon by Mr Perry are considered and it is not therefore necessary for us to examine them in detail.[63]The appellant Sil Sin had been convicted of the manslaughter of Edie Hui. It had been submitted on his behalf:
“that the judge should have directed the jury that, if he was not a party to a plan to murder, Sil Sin must be acquitted; and, furthermore, the jury’s verdict of guilty of manslaughter was, in all the circumstances, perverse. Five young Triads, he said, set out to eliminate the opposition by assassinating the deceased: there was a common plan to kill. Sil Sin’s intention was that the deceased should be frightened not killed. He had the necessary mens rea for manslaughter and, if the deceased had been frightened to death, this would have been an actus reus sufficient to support a verdict of manslaughter. But death by shooting was not part of any plan to which Sil Sin agreed and it was an event which broke causation between Sil Sin and the death.”
[64]The substance although not the details of the argument reflect the arguments of Mr Cox before us.[65]The trial judge had directed the jury that if a defendant knew that John Wong (the primary party) was carrying a gun loaded with an effective cartridge and realised that Wong might intentionally cause some injury (not necessarily serious) and Wong did kill in the course of the venture, then he could be guilty of manslaughter. His exact words were:
“.....before you can convict any defendant of murder on the above basis you must be satisfied that he knew not only that John Wong or Wai Tai, if they believed that he was the carrier of the weapon, not only had the gun but also that it was loaded with an effective cartridge... If you are satisfied that a particular defendant knew that but that their realisation was not that John Wong may kill or intentionally inflict serious injury on Eddie Hui but that John Wong may intentionally cause some injury...not necessarily serious injury and John Wong does in fact kill Eddie Hui in the course of the venture, then you may find that particular defendant guilty of manslaughter, unlawful killing, as an alternative to murder. The difference here being in the realisation by that defendant of what John Wong may do coupled with the knowledge that Eddie Hui would be faced by somebody carrying a lethal weapon. I say this, if an individual defendant did not know that the gun was loaded and believed that it was unloaded and that the enterprise was merely to frighten Eddie Hui through threats being made with an unloaded gun, then that would not be sufficient for you to find him guilty of murder or manslaughter.”
[66]For the Crown, Mr Warren had made the following submissions:
“[He] stressed that, in interview, Sil Sin said that he knew a gun would be fired to frighten the deceased, although in evidence he said that he treated this as nonsense. Accordingly, the jury must have concluded that Sil Sin knew Wong might intentionally cause some injury in the context of being a party to a joint enterprise which encompassed the discharge of a loaded firearm. Discharge of the firearm was part of the enterprise to which he was a party. Accordingly the actus reus for manslaughter was death from anticipated discharge of the gun. If Sil Sin was party to the firing of the gun, the mere fact that Wong pointed it deliberately was an unforeseen consequence, not a departure from common enterprise. Accordingly, the passage relied upon by Mr Carus at 223 in Anderson and Morris does not relate to the present circumstances because Sil Sin contemplated the discharge of the gun, an act which the jury were entitled to conclude was within the joint enterprise. Furthermore, in R. v. Betty (l964) 48 Cr.App.R. 6, at page 8, Lord Parker C.J., giving the judgment of the Court, expressly rejected an argument of the kind advanced by Mr Carus in the present case, and at page nine approved a direction that “anybody who is a party to an attack which results in an unlawful killing which results in death is a party to the killing”
. The concluding words of the judgment in Betty at page 10, Mr Warren submitted, apply to this case:
“the act which resulted in death was one which was well within the scope of the concerted action which the jury must have found...namely a knife attack”, if one substitutes “discharging a gun” for “a knife attack”
. In Reid (1976) 62 Cr. App.R. 109 Mr Warren relied on this part of the judgment of the Court given by Lawton LJ at 112:
“When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter”
. Mr Warren also referred to Stewart and Schofield [l995] 1 Cr.App.R. 441 and, in particular, a passage in the judgment of the Court delivered by Hobhouse LJ at 453D there appears the following:
“The question whether the relevant act was committed in the course of carrying out the joint enterprise in which the defendant was a participant is a question of fact not law. If the act was not so committed then the joint enterprise ceases to provide a basis for a finding of guilt against such a defendant. He ceases to be responsible for the act. This is the fundamental point illustrated by Anderson and Morris and Lovesey and Peterson. But it does not follow that a variation in the intent of some of the participants at the time the critical act is done precludes the act from having been done in the course of carrying out the joint enterprise as is illustrated by Betty and Reid.” “When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter”. “The question whether the relevant act was committed in the course of carrying out the joint enterprise in which the defendant was a participant is a question of fact not law. If the act was not so committed then the joint enterprise ceases to provide a basis for a finding of guilt against such a defendant. He ceases to be responsible for the act. This is the fundamental point illustrated by Anderson and Morris and Lovesey and Peterson. But it does not follow that a variation in the intent of some of the participants at the time the critical act is done precludes the act from having been done in the course of carrying out the joint enterprise as is illustrated by Betty and Reid.”
[67]To these submissions Mr Carus had replied:
“[He] sought to rely on R v. Dunbar and Others (unreported) Court of Appeal (Criminal Division) Transcript 23rd March l988 where at 8D Russell LJ, giving the judgment of the Court, having referred to Anderson and Morris and Lovesey and Peterson said: “Applying that dictum to the circumstances of the instant case, we have reluctantly come to the conclusion that the jury’s verdict of manslaughter against Dunbar must have been reached upon the basis that while she contemplated the use of some unlawful violence, short of the infliction of grievous bodily harm, one or other or both of her co-defendants must have gone beyond the scope of that design and used the extreme violence which was intended to cause grievous bodily harm or death. The learned judge’s direction in the case of Dunbar did not deal with that situation and the appropriate verdict of not guilty, should the jury find that the second and/or the third defendant went beyond what was contemplated by Dunbar. On the facts of this case we have come to the conclusion that in Dunbar’s case there were only two verdicts open to the jury, namely, guilty or not guilty of murder.” “Applying that dictum to the circumstances of the instant case, we have reluctantly come to the conclusion that the jury’s verdict of manslaughter against Dunbar must have been reached upon the basis that while she contemplated the use of some unlawful violence, short of the infliction of grievous bodily harm, one or other or both of her co-defendants must have gone beyond the scope of that design and used the extreme violence which was intended to cause grievous bodily harm or death. The learned judge’s direction in the case of Dunbar did not deal with that situation and the appropriate verdict of not guilty, should the jury find that the second and/or the third defendant went beyond what was contemplated by Dunbar. On the facts of this case we have come to the conclusion that in Dunbar’s case there were only two verdicts open to the jury, namely, guilty or not guilty of murder.”
[68]Rose LJ said, dismissing the appeal: “It is to be noted that the facts of Dunbar were strikingly different from the present case in that Dunbar did not know that any weapon was being carried and the common design was merely to cause some harm. In the present case Sil Sin knew that a loaded gun was being carried and fired, albeit he believed only to frighten. In our judgment, in the present case, the actus reus was the firing of the gun: it would be astonishing if, having authorised that activity, Sil Sin were entitled to be acquitted of any offence. It is further to be noted that, in Dunbar, no direction was given that if a principal acted outside the scope of the common design, he alone could be guilty. In the present case such a direction was clearly given [the judge had directed the jury that if the defendant did not know the gun was loaded then that would not be sufficient]. … In the light of the correct directions of law given by the learned judge, in particular in the passage starting at 22F [summarised above in paragraph 66] which we have cited, the jury were entitled to return the verdict of manslaughter, which they did in relation to Sil Sin, on the basis that he authorised others to fire a loaded shotgun to frighten: aiming the gun to kill was not a complete departure from the enterprise. His appeal therefore fails.” (Underlining added)[69]Mr Perry relies on the underlined words. It should be noted, however, that the judge had, as we have seen, directed the jury that the defendant would be guilty of manslaughter if (and only if) not being guilty of murder, he knew that Wong had a loaded gun and realised that Wong might intentionally cause some injury to the victim. That distinguishes this case from the instant case. In the instant case, as we have said before, H, on the assumed facts, did not foresee the possibility of any harm to R, let alone intentional harm.[70]Applying the principles which we believe are established by Powell and English to the facts in Po Ming Li (as they must have been found by the jury in the light of the direction), the act which the appellant had foreseen as a possibility was the deliberate discharge of a loaded gun at the deceased intentionally causing the deceased some injury (albeit not serious). It seems unlikely, on these facts, that a jury would find, if asked, that the primary party’s act of deliberately causing the deceased’s death was of a fundamentally different type to that contemplated.[71]We accept that the words which we have underlined in the passage in paragraph 69 above and some of the earlier authorities cited by Rose LJ tend to support Mr Perry’s submission that an act cannot, as a matter of law, be outside the scope of joint enterprise if the only difference between the act the possibility of which was foreseen and the act which occurred is the state of mind of the primary party. Nonetheless we take the view that the law is now clearly laid down in Powell and English and to the extent to which those cases are inconsistent they must be regarded as no longer good law.[72]We return to the first question. We do not think that we can give a precise answer. The issues are more complicated than the question suggests. We propose merely to say that, for the reasons which we have given, the conclusion reached by Sir Stephen Mitchell was the right conclusion on the assumed facts of the case.

Second question

[73]As to the second question, we have no jurisdiction to answer it. Section 36(1) of the Criminal Justice Act 1972 provides: “Where a person tried on indictment has been acquitted ….the Attorney-General may, if he desires the opinion of the Court of Appeal on a point of law which has arisen in the case, refer that point to the court, and the court shall, in accordance with this section, consider the point and give their opinion on it.” (Underlining added)[74]Contrary to Mr Perry’s submissions, we have no doubt that the second question raises a point of law which, albeit very interesting, did not arise in the case. It was never submitted to Sir Stephen Mitchell that the prosecution was entitled to present its case at the retrial on the basis of facts which, if correct, would establish guilt of manslaughter as a lesser included offence of murder. It is now too late to argue that point.

Cited in 4 later judgments