"Nevertheless, as the critics point out it is enough that the accessory is reckless, whereas, in the case of the principal, intention must be proved. Recklessness whether death be caused is a sufficient mens rea for a principal offender in manslaughter, but not murder. The accessory to murder, however, must be proved to have been reckless, not merely
"If B or C realised, without agreeing to such conduct being used, that A may kill or intentionally inflict serious injury and they nevertheless continue to participate with A in the venture, that will amount to a sufficient mental element for B or C to be guilty of murder if A with the requisite intent kills in the course of the venture. In those circumstances B and C have lent themselves to the enterprise and by so doing have given assistance and encouragement to A in carrying out an enterprise which they realised may involve murder. These are general principles which must be applied to the facts of this case."
"Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or must the secondary party have held such intention himself?"
"If he did not know of the knife then you have to consider whether nevertheless he knew that there was a substantial risk that Weddle might cause some really serious injury with the wooden post which was used in the manner which you find it to have been used. So there is the question; 'Has the Prosecution proved' - and this is an alternative, of course - 'that English joined in an unlawful attack on the sergeant realising at that time that there was a substantial risk that in that attack Weddle might kill or at least cause some really serious injury to the sergeant. If no, not guilty,"
"(i) Is it sufficient to found a conviction for murder for a secondary party to a killing to have realised that the primary party might kill with intent to do so or with intent to cause grievous bodily harm or must the secondary party have held such an intention himself?
"Assuming that one of the four knifed the barman, assuming you are satisfied that it was done unlawfully in the course of an assault upon him, was [the appellant] taking part in a general attack on the bar directed in part at the barman, so as to make him a party to the general assault in some way upon [the deceased barman]? . . . Manslaughter is unlawful killing without intent to kill or do grievous bodily harm. Anybody who is a party to an attack which results in an unlawful killing ... is a party to the killing."
"Anybody who is a party to an attack which results in an unlawful killing ... is a party to the killing."
"In the view of this court, that is a wholly unexceptionable direction upon the law except, of course, where the act can be said to be wholly outside the subject-matter of the concerted agreement. The term 'agreement,' 'confederacy,' 'acting in concert,' and 'conspiracy,' all pre-suppose an agreement express or by implication to achieve a common purpose, and so long as the act done is within the ambit of that common purpose anyone who takes part in it, if it is an unlawful killing, is guilty of manslaughter. That does not mean that one cannot hypothesise a case in which there is an act which is wholly outside the scope of the agreement, in which case no doubt different considerations might apply; but the judge was not dealing with that case at all."
"The grounds of appeal in this case although worded in different ways really, as I understand them, amount to the same thing; that is, that the use of a knife by Atkinson in this case was a departure, that is to say, assuming against Smith, as must be assumed in the light of the jury's verdict, that he was a party to some concerted action being taken against the barman, he certainly was not a party to the use upon the
"where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise but (and this is the crux of the matter) that, if one of the adventurers goes beyond what had been tacitly agreed as part of the common enterprise, his co-adventurer is not liable for the consequences of that
"The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend.
"That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorization, which may be express or is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight."
"The defendant's second point relies on Sir Robin Cooke's use of the word 'authorisation' as a synonym for contemplation in the passage already cited from his judgment in Chan Wing-Siu v. The Queen[1985] AC 168 , 175. Their Lordships consider that Sir Robin used this word—and in that regard they do not differ from counsel—to emphasise the fact that mere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise. The word 'authorisation' explains what is meant by contemplation, but does not add a new ingredient. That this is so is manifest from Sir Robin's pithy conclusion to the passage cited: 'The criminal culpability lies in participating in the venture with that foresight."
"Each of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."
"In support of that, he refers to a number of authorities to which this court finds it unnecessary to refer in detail, which in the opinion of this court shows that at any rate for the last 130 or 140 years that has been the true position. This matter was in fact considered in some detail in Reg. v. Smith (Wesley) , heard by a court of five judges presided over by Hilbery J., in which Slade J. gave the judgment of the court. Reg. v. Smith (Wesley) was referred to at some length in the later decision in this court in Reg. v. Betty; it is unnecessary to go into that case in any detail. It followed the judgment of Slade J. in Reg. v. Smith (Wesley), and it did show the limits of the general principle which Mr. Lane invokes in the present case. In Reg. v. Smith (Wesley) the co-adventurer who in fact killed was known by the defendant to have a knife, and it was clear on the facts of that case that the common design involved an attack on a man, in that case a barman, in which the use of a knife would not be outside the scope of the concerted action. Reference was there made to the fact that the case might have been different if in fact the man using the knife had used a revolver, a weapon which he had, unknown to Smith.
"The court in Reg. v. Betty approved entirely of what had been said in Reg. v. Smith (Wesley), and in fact added to it."
"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."
"First, the House cleared away the confusions which had obscured the law during the last 25 years laying down authoritatively that the mental element in murder is a specific intent, the intent to kill or to inflict serious bodily harm. Nothing less suffices: and the jury must be sure that the intent existed when the act was done which resulted in death before they can return a verdict of murder.
"Secondly, the House made it absolutely clear that foresight of consequences is no more than evidence of the existence of the intent: it must be considered, and its weight assessed, together with all the evidence in the case. Foresight does not necessarily imply the existence of intention, though it may be a fact from which, when considered with all the other evidence, a jury may think it right to infer the necessary intent. Lord Hailsham of St. Marylebone L.C. put the point succinctly and powerfully in his speech in Reg. v. Moloney[1985] AC 905 , 913:
'I conclude with the pious hope that your Lordships will not again have to decide that foresight and foreseeability are not the same thing as intention although either may give rise to an irresistible inference of such, and that matters which are essentially to be treated as matters of inference for a jury as to a subjective state of mind will not once again be erected into a legal presumption. They should remain, what they always should have been, part of the law of evidence and inference to be left to the jury after a proper direction as to their weight, and not part of the substantive law.'
"Thirdly, the House emphasised that the probability of the result of an act is an important matter for the jury to consider and can be critical in their determining whether the result was intended."
"It is submitted by Mr. Steer in regard to that ground of appeal that the decisions of the House of Lords in Reg. v. Moloney and Reg. v. Hancock have had the effect of completely altering the law relating to joint enterprise. The way in which he put it was this. We asked him to dictate the submission so we could write it down. No man, he submits, can be convicted of murder unless it is specifically decided against him that he had a murderous intent and that could only be decided against him if the judge directed the jury that that was what they had to find.
"Each member of this Court is bound to confess that he was unable to understand the submission. It is enough to say that we do not consider that the cases of Reg. v. Moloney and Reg. v. Hancock have had any effect at all upon the well-known and well-established principles of joint enterprise: in short, the principle set out in Reg. v. Anderson; Reg. v. Morris(1966) 50 Cr. App. R. 216 , [1966] 2 Q.B. 110 still holds good . . .
"We are told that the learned judge may have been equipped with the opinion of the Judicial Committee of the Privy Council in a case called Chan Wing-Siu v. The Queen[1985] AC 168 . If that is so, the learned judge accurately reflected the view of their Lordships in that case in the passage which I have read.
"It was suggested by Mr. Steer that the decision in that case, which came from Hong Kong, is not in accordance with the decisions of the House of Lords in Reg. v. Moloney and Reg. v. Hancock. We disagree. We think that what appears in that case, if we may say so respectfully, is good law.
"Chan Wing-Siu v. The Queen[1985] AC 168 was considered and approved by this court in Reg. v. Ward(1986) 85 Cr. App. R. 71 . The appellant's submission in that case was that the decisions of the House of Lords in Reg. v. Moloney[1985] AC 905 and Reg. v. Hancock [1986] A.C. 455 had the effect of completely altering the law relating to joint enterprise: that no man can be convicted of murder unless it is specifically decided against him that he had a murderous intent; since intent had to be read against the decisions in Reg. v . Moloney[1985] AC 905 and Reg. v. Hancock [1986A.C. 455 the jury ought to be directed on the basis of those cases.
"This court in Reg. v. Ward(1986) 85 Cr.App.R. 71 reiterated the passage from Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110, 118-119, cited above and went on to hold that Reg. v. Moloney[1985] AC 905 and Reg. v. Hancock [1986] A.C. 455 had had no effect on the well known and well established principles of joint enterprise."
"where it is appropriate to direct a jury upon foreseeability of consequence, the jury must be told that evidence of such foreseeability does no more than assist the jury to determine whether a defendant had at the requisite time an intention either to kill or to do serious harm to the victim.
"Unwittingly, the judge with regard to a time prior to the burglary, unaided by those authorities, because they were decided after he had directed the jury in the present case, seems to have directed them as though it was not necessary for a defendant charged with murder himself to possess one of the necessary intents: it was enough to convict him if he contemplated that one of his co-accused had one of those
"we feel bound to follow and apply the Hyde formulation having regard to the approval which it has received in a number of decisions in this court and to the fact that it is in
"If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lent himself to the enterprise and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder."
"Regard must be had to public policy considerations. Public policy requires that when a man lends himself to a criminal enterprise knowing it involves the possession of potentially murderous weapons which in fact are used by his partners with murderous intent, he should not escape the consequences to him of their conduct by reliance upon the nuances of prior assessment of the likelihood that such conduct will take place. In these circumstances an accomplice who knowingly takes the risk that such conduct might, or might well, take place in the course of that joint enterprise should bear the same responsibility for that conduct as those who use the weapons with the murderous intent."
"What public policy requires was rightly identified in the submissions for the Crown. Where a man lends himself to a criminal enterprise knowing that potentially murderous weapons are to be carried, and in the event they are in fact used by his partner with an intent sufficient for murder, he should not escape the consequences by reliance upon a nuance of prior assessment, only too likely to have been optimistic."
"It seems that a common intent to threaten violence is equivalent to a common intent to use violence, for the one so easily leads to the other."
"There was no occasion for the Court to turn its attention to the situation where one party foresees, but does not agree to, a crime other than that which is planned, and continues to participate in the venture. However, the secondary offender in that situation is as much a party to the crime which is an incident of the agreed venture as he is when the incidental crime falls within the common purpose. Of course, in that situation the prosecution must prove that the individual concerned foresaw that the incidental crime might be
"If he had the knife and English knew that Weddle had the knife, what would have been — must have been — in the mind of English, bearing in mind whatever condition you find that he was in as a result of drink? So you have to ask that question. If he did not know of the knife then you have to consider whether nevertheless he knew that there was a substantial risk that Weddle might cause some really serious injury with the wooden post which was used in the manner which you find it to have been used."
"If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture."
"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."
"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-Sui. 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