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House of Lords
Session 1997-98
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Judgments - Regina v. Powell and Another
Regina v. English


  Lord Goff of Chieveley   Lord Jauncey of Tullichettle   Lord Mustill
  Lord Steyn   Lord Hutton








  Oral Judgment: 17 July 1997
   Reasons: 30 October 1997


My Lords,

    I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hutton. And for the reasons he has given I too would also make the orders he proposes.


My Lords,

    I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Hutton and for the reasons which he gives I would also make the orders he proposes.


My Lords,

    I concurred without hesitation in the orders made by the House on 17 July 1997. Even as regards the case of English, which is much the more difficult of the appeals, I felt and continue to feel that neither or the authorities nor in plain justice could it be right to sustain the conviction once it was very properly conceded on behalf of the respondent that the appellant might have been unaware that the knife ultimately used by Wedale was even in the latter's possession. So much is to my mind clear. Much less clear is the proper analysis of the law in a situation where the secondary party foresees that the principal offender may commit a more serious crime than the one which the two set out to commit, and nevertheless decides to go ahead with the plan.

    My own reasoning was, in summary, as follows:

    Throughout the modern history of the law on secondary criminal liability (at least of the type with which this appeal is concerned) the responsibility of the secondary defendant has been founded on his participation in a joint enterprise of which the commission of the crime by the principal offender formed part. Any doubts on this score were set at rest by Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110 by reference to which countless juries have been directed over the years. As it seemed to me the House should not depart from this long-established principle without the strongest of reasons. The problem is to accommodate in the principle the foresight of the secondary party about what the main offender might do. Two aspects of this problem are simple. If S did not foresee what was actually done by P he is not liable for it, since it could not have been part of any joint enterprise. This is what the court decided in Reg. v. Anderson; Reg. v. Morris. Conversely, if S did foresee P's act this would always, as a matter of common sense, be relevant to the jury's decision on whether it formed part of a course of action to which both S and P agreed, albeit often on the basis that the action would be taken if particular circumstances should arise.

    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?

    At the same time the culpability of S ought to be reflected in some form of criminal liability, attracting some degree of punishment. If one rejects, for the reason just given, the idea of forcing it within the existing notion of a joint venture there remain only two alternatives. The first is to abandon that notion altogether, and employ in all cases a test of foreseeability as the direct route to a verdict. The second is to retain the concept of a joint venture in all those cases, forming the great majority, where on the facts it provides a complete test for whether S is or is not guilty of the crime which P actually committed. In the minority of cases where S ought to be guilty and yet cannot rationally be treated as party to an express or tacit agreement to commit the offence in question his culpability can be established by a different route, proposed by Sir Robin Cooke, delivering the opinion of the Privy Council in Chan Wing-Siu v. The Queen [1985] A.C. 168, 175. Namely, that the culpability of S lies in his participation in the venture with foresight of the crime as a possible incident of the common unlawful enterprise.

    My Lords, I had for my part preferred the second of these alternatives; for I did not favour the abandonment of a doctrine which has for years worked adequately in practice and its replacement by something which I conceived to be new, unless this step was strictly necessary; and I did not think it necessary, since the existing principles could be retained, in combination (for the exceptional cases) with the concept of wrongful participation in face of a known risk. This was indeed what I understood the law to be, after Chan Wing-Siu v. The Queen [1985] 1 A.C. 168; Hui Chi-Ming v. The Queen [1992] 1 A.C. 34 and McAuliffe v. The Queen (1995) 69 A.L.J.R. 621.

    My Lords, given the importance of the topic I had originally prepared the draft of a speech containing a detailed historical analysis and a statement of the reasons which led me to prefer the second version of the law. Recognising, however, that the remainder of your Lordships see the matter differently I prefer that the draft should be withdrawn. There are some instances where the delivery of a minority opinion is a duty, the performance of which is not simply a matter of record, but also makes an important contribution to the future understanding and development of the law. This is not such a case. Doctrinally the differences may be considerable, but their practical significance is likely to be small, or perhaps even non-existent. What the trial judge needs is a clear and comprehensible statement of a workable principle, which he or she will find in the speech of my noble and learned friend, Lord Hutton; and the judge's task will not be helped in any way by a long exposition of a theory which might have prevailed, but in the event has not. This being so I am entirely willing to concur in the reasoning to which the remainder of your Lordships subscribe. This will, I suspect, require some judges to look again at the terms in which they have customarily directed juries, but the task should not be at all difficult to perform.

    In conclusion I wish to express my wholehearted support for the observations of my noble and learned friend, Lord Steyn, in the latter part of his speech. Once again, an appeal to this House has shown how badly our country needs a new law of homicide, or a new law of punishment for homicide, or preferably both. The judges can do nothing about this, being held fast by binding authorities on the one hand and a mandatory statute on the other. Only Parliament has the powers, if it will choose to exercise them. It may not be a popular choice, but surely it is justice that counts.


My Lords,

    My Lords, for the reasons contained in the speech to be delivered by my noble and learned friend, Lord Hutton, which I have read in draft, I supported the orders made by the House in the appeals under consideration on 17 July 1997. Given the importance and difficulty of the legal issues at stake I make a few additional observations.

    There are two separate but complementary legal concepts at stake. The first is the mental element sufficient for murder, i.e. an intention to kill or to cause really serious bodily injury. Only if this element is proved in respect of the primary offender, and if the other ingredients of murder are proved, does the second concept arise for consideration, viz. the criminal liability of accessories to a joint criminal enterprise. Under the accessory principle criminal liability is dependent on proof of subjective foresight on the part of a participant in the criminal enterprise that the primary offender might commit a greater offence, that being in these cases foresight that the primary offender might commit murder as defined in law.

    The thrust of both appeals was to challenge the existing law and practice regarding the second concept. The appeals under consideration relate to charges of murder. But there is no special rule regarding the criminal liability of accessories in cases of murder. The principle governing the criminal liability of accessories applies across the spectrum of most criminal offences. Any alteration in the accessory principle, as presently understood, would have to apply to most criminal offences. That does not mean that the arguments advanced on behalf of the appellants are unsound. But it underlines the sweeping impact of the changes to the existing law and practice necessarily involved in an acceptance of the submissions made on behalf of the appellants in these appeals.

    The established principle is that a secondary party to a criminal enterprise may be criminally liable for a greater criminal offence committed by the primary offender of a type which the former foresaw but did not necessarily intend. The criminal culpability lies in participating in the criminal enterprise with that foresight. Foresight and intention are not synonymous terms. But foresight is a necessary and sufficient ground of the liability of accessories. That is how the law has been stated in two carefully reasoned decisions of the Privy Council: see Chan Wing-Sui v. The Queen [1985] A.C. 168 and Hui Chi-ming v. The Queen [1992] 1 A.C. 34. In a valuable article Professor Sir John Smith has recently concluded that there is no doubt that this represents English law: "Criminal Liability of Accessories: Law and Law Reform" (1997) 113 L.Q.R. 453, 455. And Lord Hutton has demonstrated in his comprehensive review of the case law that the law is as stated in the two Privy Council decisions. That does not mean that the established principle cannot be re-examined and, if found to be flawed, re-formulated. But the existing law and practice forms the starting point.

    Counsel for the appellants argued that the secondary party to a criminal enterprise should only be guilty of a murder committed by the primary offender if the secondary party has the full mens rea sufficient for murder, i.e. an intent to kill or to cause really bodily harm. Their arguments fell into three parts, namely (1) that there is a disharmony between two streams of authority; (2) that the accessory principle involves a form of constructive criminal liability; and (3) that it is anomalous that a lesser form of culpability is sufficient for a secondary party than for the primary offender. The first part of the argument centred on the scope of decisions of the House of Lords in Reg. v. Moloney [1985] A.C. 905 and Reg. v. Hancock [1986] A.C. 455. Those decisions distinguish between foresight and intention and require in the case of murder proof of intention to kill or cause serious bodily injury. But those decisions were intended to apply to a primary offender only. The liability of accessories was not in issue. Plainly the House did not intend in those decisions to examine or pronounce on the accessory principle. The resort to authority must therefore fail.

    That brings me to the second argument. If the application of the accessory principle results in a form of constructive liability that would be contrary to principle and it would be a defect in our criminal law. But subject to a qualification about the definition of the mens rea required for murder to which I will turn later, I would reject the argument that the accessory principle as such imposes a form of constructive liability. The accessory principle requires proof of a subjective state of mind on the party of a participant in a criminal enterprise, viz. foresight that the primary offender might commit a different and more serious offence. Professor Sir John Smith, "Criminal Liability of Accessories: Law and Law Reform" (1997) 113 L.Q.R. 464, explained how the principle applies in the case of murder:

     "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 whether death might be caused, but whether murder might be committed: he must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime. Recklessness whether murder be committed is different from, and more serious than, recklessness whether death be caused by an accident." (My emphasis.)

The foresight of the secondary party must be directed to a real possibility of the commission by the primary offender in the course of the criminal enterprise of the greater offence. The liability is imposed because the secondary party is assisting in and encouraging a criminal enterprise which he is aware might result in the commission of a greater offence. The liability of an accessory is predicated on his culpability in respect of the greater offence as defined in law. It is undoubtedly a lesser form of mens rea. But it is unrealistic to say that the accessory principle as such imposes constructive criminal liability.

    At first glance there is substance in the third argument that it is anomalous that a lesser form of culpability is required in the case of a secondary party, viz. foresight of the possible commission of the greater offence, whereas in the case of the primary offender the law insists on proof of the specific intention which is an ingredient of the offence. This general argument leads, in the present case, to the particular argument that it is anomalous that the secondary party can be guilty of murder if he foresees the possibility of such a crime being committed while the primary can only be guilty if he has an intent to kill or cause really serious injury. Recklessness may suffice in the case of the secondary party but it does not in the case of the primary offender. The answer to this supposed anomaly, and other similar cases across the spectrum of criminal law, is to be found in practical and policy considerations. If the law required proof of the specific intention on the part of a secondary party, the utility of the accessory principle would be gravely undermined. It is just that a secondary party who foresees that the primary offender might kill with the intent sufficient for murder, and assists and encourages the primary offender in the criminal enterprise on this basis, should be guilty of murder. He ought to be criminally liable for harm which he foresaw and which in fact resulted from the crime he assisted and encouraged. But it would in practice almost invariably be impossible for a jury to say that the secondary party wanted death to be caused or that he regarded it as virtually certain. In the real world proof of an intention sufficient for murder would be well nigh impossible in the vast majority of joint enterprise cases. Moreover, the proposed change in the law must be put in context. The criminal justice system exists to control crime. A prime function of that system must be to deal justly but effectively with those who join with others in criminal enterprises. Experience has shown that joint criminal enterprises only too readily escalate into the commission of greater offences. In order to deal with this important social problem the accessory principle is needed and cannot be abolished or relaxed. For these reasons I would reject the arguments advanced in favour of the revision of the accessory principle.