“[A] But this was, or you may decide it was, a group attack. In such a situation it is not only the person who delivers the fatal blow who is liable to be convicted of murder. It two or more people join an attack on another, either personally intending to cause really serious harm or realising that others may intentionally cause really serious harm, but continue to participate in the attack, then, subject to matters I will come to in a moment, each is equally guilty in law of murder and it matters not who delivered the fatal blow. That is what lawyers call “joint enterprise”, that if several people agree to a course of conduct each is liable for the consequences. You may think common sense and public policy lies behind that decision because, of course, in many gang-related or multi-handed attacks, the Prosecution cannot actually say who delivered the fatal blow. … [B] You must therefore consider, in relation to Reece Mendez and Travis Hurst and Seaon Thompson, if you are not sure he was the stabber, what was the nature of the joint enterprise or common purpose, if any, that they were party to and what their intention or realisation was. Determining the purpose of the joint enterprise in circumstances such as this is a matter of inference. The incident arose fairly spontaneously out of a fluid situation, not a considered discussion by those involved. You must look at all the surrounding circumstances. What, if anything, was said in the house about any proposed fight with the group arriving from “Echo”, as it has been called? At what stages were weapons picked up? How many weapons were involved? What weapons, including feet, were actually used? And in determining the intent or realisation of any accused, you are entitled to look at the whole incident. [C] In this case there are two separate features that you must consider. No one other than the stabber appears to have realised, until the second part of the incident, that Dale had been stabbed; that the medical and forensic evidence shows that Dale received the fatal blows in the first part of the incident, near to that Toyota Avensis because his blood was on the wheel of that car. Anyone who only joined in the attack, or attacks, after Dale had been stabbed cannot in law be convicted of murder. You must therefore be sure, in the case of any accused whose case you are considering on murder, that he joined the attack with the appropriate intention or realisation before the fatal blows were inflicted. If you are not so sure you must find that individual not guilty of murder. [D] [1] The other matter is determining whether the act of stabbing was outside of the joint enterprise implicitly agreed to by any of the accused who are charged with murder. [2] There is no evidence Reece Mendez was aware of that knife being present…[3] The legal position is this, if you are sure that any accused charged with murder joined the attack intending to cause really serious harm, or realising others may intentionally cause really serious harm, he is liable for the murder unless – and it is a big “unless” – unless another attacker suddenly produces and uses a weapon of which that accused is unaware and which is more lethal than any weapon he contemplated may be used and for that reason the act of using that other weapon is to be regarded as fundamentally different from anything the accused foresaw. [4] It is a mouthful. [5] It is important in this case. [6] I will repeat it. [E] [1] The legal position is this. [2] If you are sure any accused charged with murder joined the attack intending to cause really serious harm, or realising that others may intentionally cause really serious harm, he is liable for the murder unless another attacker suddenly produces and uses a weapon of which that accused is unaware and which is more lethal than any weapon he contemplated may be used, and, for that reason, the act of using that other weapon is to be regarded as fundamentally different from anything the accused foresaw. [3] Whether it was fundamentally different is a matter for your judgment. [4] To determine that, of course, you must look at all the facts. [F] [1] Although each accused is disputing his alleged part in the incident, you may think there is a reasonably clear general picture. [2] This was no one to one fight. [3] It was a mob-handed and reasonably sustained attack on one individual. [4] That, indeed, is what some of the accused said in their interviews. [5] When Dale managed to break away and run off he was pursued and fell again. [6] In each part of the attack, according to some witnesses, he was assaulted by the use of weapons, pieces of wood or metal bars or poles, and by feet, kicking and stamping, and by fists. [7] Some of those weapons, you may think, were capable of causing death if they caught Dale on the most vulnerable parts of the body or were used repeatedly. [8] Ask yourselves when would the attack have stopped if someone had not called out that he had been stabbed? [9] It is against that factual background, as you determine it to be, that you should answer the question whether the use of the knife was fundamentally different from the enterprise any accused had joined. [10] If you are sure the enterprise included the use of potentially lethal weapons to cause serious injury, it is open to you to conclude that the use of the knife was within the scope of that joint enterprise. [11] But if you conclude that to stab in the chest with a knife was in a different league to the kind of battering to which the attackers implicitly agreed by the use of those other weapons, then only the stabber would be liable for the consequences and you would find any other accused not guilty of murder.”
“The only peculiarity of joint enterprise cases is that, once a common purpose to commit the offence in question is proved, there is no need to look for further evidence of assisting and encouraging. The act of combining to commit the offence satisfies these requirements of aiding and abetting. Frequently it will be acts of encouragement which provide the evidence of the common purpose. It is simply necessary to apply the ordinary principles of secondary liability to the joint enterprise.”
“Much hath been said by writers who have gone before me, upon cases where a person supposed to commit a felony at the instigation of another hath gone beyond the terms of such instigation, or hath, in the execution, varied from them. If the principal totally and substantially varieth, if being solicited to commit a felony of one kind he wilfully and knowingly commiteth a felony of another, he will stand single in that offence, and the person soliciting will not be involved in his guilt. For on his part it was no more than a fruitless ineffectual temptation. The fact cannot with any propriety be said to have been committed under the influence of that temptation. But if the principal in substance complyeth with the temptation, varying only in circumstance of time or place, or in the manner of execution, in these cases the person soliciting to the offence, will, if absent, be an accessory before the fact, if present a principal.” (Emphasis added)
“In Anderson and Morris…a distinction was drawn between a mere unforeseen consequence of a unlawful act and “an overwhelmingly supervening event which is of such a character that it will relegate into history matters which would otherwise be looked upon as causative factors”; see the judgment of Lord Parker CJ at…120. Was O’Conaill’s deliberate firing of the revolver “a mere unforeseen consequence” of the unlawful possession of offensive weapons? We adjudge it was. 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 to 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.”
“Where there is a conspiracy and the perpetrator of the deed does not act in full accord with the original design, the question is: Did he go beyond the common purpose? – a rule easy to state but difficult to apply. The question is one of degree…”
“The grievous bodily harm need not be permanent, but it must be serious, and it is serious or grievous if it is such as seriously and grievously to interfere with the health or comfort of the victim…”
“Suppose that, knowing what A is like and that he tends to carry a gun, B contemplates that A may take a gun and use it in the course of the attack on the victim. Then, even if B is vehemently opposed to the use of a gun and tries to dissuade A from carrying one, nevertheless, if, being aware of the risk, B takes part in the joint assault, he will be guilty of murder if A shoots the victim.”
“Intellectually, there are problems with the concept of a joint venture, but they do not detract from its general practical worth, which has proved itself over many years. In one particular situation there is, however, a problem which this time-honoured solution cannot solve. Namely, where S foresees that P may go too far; sincerely wishes that he will not, and makes this plain to P; and yet goes ahead, either because he hopes for the best, or because P is an overbearing character, or for some other reason. Many would say, and I agree, that the conduct of S is culpable, although usually at a lower level than the culpability of the principal who actually does the deed. Yet try as I may, I cannot accommodate this culpability within a concept of joint enterprise. How can a jury be directed at the same time that S is guilty only if he was party to an express or tacit agreement to do the act in question, and that he is guilty if he not only disagreed with it, but made his disagreement perfectly clear to P? Are not the two assertions incompatible?”
“To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or “constructive liability”
“If two men concerted together to fight two other men with their fists, and one struck an unlucky blow causing death, both would be guilty of manslaughter. But if one used a knife, or other deadly weapon…without the knowledge or consent of the other, he only who struck with the weapon would be responsible for the death resulting from the blow given by it.”
“If A counsel or commands B to beat C with a small wand or rod, which could not, in all human reason, cause death, if B beats C with a great club, or wound him with a sword, whereof he dies, it seems, that A is not accessary, because there was no command of death, nor of anything that could probably cause death, and B hath varied from the command in substance, and not in circumstance.”
“It is, with respect, clearly inappropriate to speak of a weapon’s “propensity to cause death”, since an inanimate object can have no propensity to do anything. But of course it is clear that some weapons are more dangerous than others and have the potential to cause more serious injury, as a sawn-off shotgun is more dangerous than a child’s catapult.”
“(a) If D contemplates that P will cause V serious harm with intent, D will not be liable for V’s death (or presumably the serious injury which led to his death) if the jury regards P’s conduct in using that weapon as he did as a “fundamentally different” act from the type of act contemplated. Whether an act is “fundamentally different” is a question of fact, a “significant factor” being P’s use of an uncontemplated weapon (unless the weapon was “equally likely to inflict fatal injury”). (b) Although the question is one of fact, in truth D’s liability for P’s offence would seem to turn on whether D contemplated a non-life-threatening form of serious harm and P committed a life-threatening form of serious harm. For example, it would seem to be implicit in Carswell J’s ruling in Gamble [1989] NI 268, 283-284, that P’s use of a gun to shoot V in a vital part of this body would have been regarded as fundamentally different from the contemplated (and possibly non-life-threatening) act of shooting V in the knee caps. As the law stands, however, there is no guidance available to the judge or jury as to what is meant by “fundamentally different”.”
“Anyone who thought that the House of Lords’ decision in Rahman[2008] UKHL 45 had clarified the law on secondary participation in murder would have had that view disabused if he had been in this court yesterday…”
“I pause only to observe how unsatisfactory it is that the question of liability of secondary parties in the law of murder is still so difficult that appellate courts are routinely asked to review the direction of trial judges.”
“In each part of the attack, according to some witnesses, he was assaulted by the use of weapons, pieces of wood or metal bars or poles, and by feet, kicking and stamping, and by fists.”
“Some of those weapons, you may think, were capable of causing death if they caught Dale on the most vulnerable parts of the body or were used repeatedly.”
“Ask yourselves when would the attack have stopped if someone had not called out that he had been stabbed?”
“It is against that factual background, as you determine it to be, that you should answer the question whether the use of the knife was fundamentally different from the enterprise any accused had joined.”