That brings me to the qualification which I have foreshadowed. In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, i.e. the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated: see Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), pp. 250-251; Ashworth, Principles of Criminal Law, 2nd ed. pp. 85 and 261; Card, Cross and Jones, Criminal Law, 12th ed. (1992), pp. 203-204. This is a point of considerable importance. The Home Office records show that in the last three years for which statistics are available mandatory life sentences for murder were imposed in 192 cases in 1994; in 214 cases in 1995; and in 257 cases in 1996. Lord Windlesham, writing with great Home Office experience, has said that a minority of defendants convicted of murder have been convicted on the basis that they had an intent to kill: "Responses to Crime," vol. 3 (1996), at 342, n. 29. That assessment does not surprise me. What is the justification for this position? There is an argument that, given the unpredictability whether a serious injury will result in death, an offender who intended to cause serious bodily injury cannot complain of a conviction of murder in the event of a death. But this argument is outweighed by the practical consideration that immediately below murder there is the crime of manslaughter for which the court may impose a discretionary life sentence or a very long period of imprisonment. Accepting the need for a mandatory life sentence for murder, the problem is one of classification. The present definition of the mental element of murder results in defendants being classified as murderers who are not in truth murderers. It happens both in cases where only one offender is involved and in cases resulting from joint criminal enterprises. It results in the imposition of mandatory life sentences when neither justice nor the needs of society require the classification of the case as murder and the imposition of a mandatory life sentence.

    The observations which I have made about the mental element required for murder were not directly in issue in the appeals under consideration. But in the context of murder the application of the accessory principle, and the definition of murder, are inextricably linked. For that reason I have felt at liberty to mention a problem which was not addressed in argument. That counsel did not embark on such an argument is not altogether surprising. After all, in Reg. v. Cunningham [1982] A.C. 566 the House of Lords declined to rationalise and modernise the law on this point. Only Lord Edmund-Davies expressed the hope that the legislature would undertake reform: see p. 583B-C. In my view the problem ought to be addressed. There is available a precise and sensible solution, namely, that a killing should be classified as murder if there is an intention to kill or an intention to cause really serious bodily harm coupled with awareness of the risk of death: 14th Report of the Law Revision Committee, (1980), para. 31, adopted in the Criminal Code, for England and Wales, (Law Com. No. 177), (1986), clause 54(1). This solution was supported by the House of Lords Select Committee on Murder and Life Imprisonment, HL Paper 78-1, 1989, par 68.

    Having made these observations I make clear that I am in full agreement with the judgment of Lord Hutton which in my view accurately states the applicable law.

LORD HUTTON

My Lords,

    The appeals before your Lordships' House relate to the liability of a participant in a joint criminal enterprise when another participant in that enterprise is guilty of a crime, the commission of which was not the purpose of the enterprise.

    In the case of Powell and Daniels the purpose of the joint enterprise was to purchase drugs from a drug dealer. Three men, including the two appellants, Powell and Daniels, went to purchase drugs from a drug dealer, but having gone to his house for that purpose, the drug dealer was shot dead when he came to the door. The Crown was unable to prove which of the three men fired the gun which killed the drug dealer, but it was the Crown case that if the third man fired the gun, the two appellants were guilty of murder because they knew that the third man was armed with a gun and realised that he might use it to kill or cause really serious injury to the drug dealer.

    In the course of summing up to the jury at the trial the Recorder of London said:

 "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."

Powell and Daniels were convicted of murder and their appeals were rejected by the Court of Appeal, and the question certified for the opinion of your Lordships' House is:

 "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?"

In the case of English the purpose of the joint enterprise in which he and another young man, Weddle, took part was to attack and cause injury with wooden posts to a police officer, Sergeant Forth, and in the course of the attack Weddle used a knife with which he stabbed Sergeant Forth to death.

    It was a reasonable possibility that English had no knowledge that Weddle was carrying a knife, and on this basis the learned trial judge, Owen J., stated in his summing up to the jury:

 "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,'"

    The judge then, in effect, directed the jury that if they answered that question in the affirmative they should find English guilty of murder.

    Weddle and English were convicted of murder and their appeals were rejected by the Court of Appeal. English now appeals to your Lordships' House and the two questions certified for the opinion of the House are as follows:

 "(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?

 (ii) Is it sufficient for murder that the secondary party intends or foresees that the primary party would or may act with intent to cause grievous bodily harm, if the lethal act carried out by the primary party is fundamentally different from the acts foreseen or intended by the secondary party?"

The question certified in the appeals of Powell and Daniels and the first question certified in the appeal of English raise the issue whether foresight of a criminal act which was not the purpose of the joint enterprise (in the case of Powell and Daniels the use of a gun, and in the case of English the use of a knife) is sufficient to impose criminal liability for murder on the secondary party in the event that the jury find that the primary party used the weapon with intent to kill or cause really serious harm.

    In the case of Powell and Daniels the Crown case was that the two appellants knew that the third man was armed with a gun, and the Crown accepted that if the jury did not find this knowledge the appellants would not be guilty of murder. But in the case of English the Crown case was that, even if he did not know that Weddle had a knife, English foresaw that Weddle would cause really serious injury to the police officer, and that this foresight was sufficient to impose criminal liability upon him for the murder. Accordingly the second question arises in the case of English and that question is, in essence, whether the secondary party is guilty of murder if he foresaw that the other person taking part in the enterprise would use violence that would cause really serious injury, but did not foresee the use of the weapon that was used to carry out the killing.

    My Lords, the first question gives rise, in my opinion, to two issues. The first issue is whether there is a principle established in the authorities that where there is a joint enterprise to commit a crime, foresight or contemplation by one party to the enterprise that another party to the enterprise may in the course of it commit another crime, is sufficient to impose criminal liability for that crime if committed by the other party even if the first party did not intend that criminal act to be carried out. (I shall consider in a later part of this judgment whether the foresight is of a possibility or of a probability.) The second issue is whether, if there be such an established principle, it can stand as good law in the light of the decisions of this House that foresight is not sufficient to constitute the mens rea for murder in the case of the person who actually causes the death and that guilt only arises if that person intends to kill or cause really serious injury.

    My Lords, I consider that there is a strong line of authority that where two parties embark on a joint enterprise to commit a crime, and one party foresees that in the course of the enterprise the other party may carry out, with the requisite mens rea, an act constituting another crime, the former is liable for that crime if committed by the latter in the course of the enterprise. This was decided by the Court of Appeal, constituted by five judges, in Reg. v. Smith (Wesley) [1963] 1 W.L.R. 1200. In that case after an argument in a public-house, where the appellant and three other men had been causing a disturbance, the appellant and one of the other men went outside where they collected and threw bricks through the glass door of the premises, in order to "tear up the joint." While they were so doing, one of the remaining two men, who were still inside, continued the argument which developed into a fight in the course of which one of them, A., stabbed the barman with a knife, killing him. At the time of the stabbing the appellant was outside the premises, but he knew that the man who stabbed the barman was carrying the knife on his person. All four men were charged with murder. The trial judge directed the jury:

 "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."

The appellant was convicted of manslaughter.

    In delivering the judgment of the Court of Appeal Slade J. referred to the direction of the trial judge that: "Anybody who is a party to an attack which results in an unlawful killing . . . is a party to the killing." Slade J. then stated, at p. 1205F:

 "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."

And, at p. 1206F:

 "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 barman of a knife which resulted in the barman's death. It is significant, as I have shown by reading Smith's own statement, that he knew that Atkinson carried a knife. Indeed, I think he knew that one of the other man carried a cut-throat razor. It must have been clearly within the contemplation of a man like Smith who, to use one expression, had almost gone berserk himself to have left the public-house only to get bricks to tear up the joint, that if the bar tender did his duty to quell the disturbance and picked up the night stick, anyone whom he knew had a knife in his possession, like Atkinson, might use it on the barman, as Atkinson did. By no stretch of imagination, in the opinion of this court, can that be said to be outside the scope of the concerted action in this case. In a case of this kind it is difficult to imagine what would have been outside the scope of the concerted action, possibly the use of a loaded revolver, the presence of which was unknown to the other parties; but that is not this case, and I am expressing no opinion about that. The court is satisfied that anything which is within the ambit of the concerted arrangement is the responsibility of each party who chooses to enter into the criminal purpose." (emphasis added)

    Therefore I consider that in Reg. v. Smith the Court of Appeal recognised that the secondary party will be guilty of unlawful killing committed by the primary party with a knife if he contemplates that the primary party may use such a weapon.

    In Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110 the primary party (Anderson) killed the victim with a knife. The defence of the secondary party (Morris) was that even though he may have taken part in a joint attack with Anderson to beat up the victim, he did not know that Anderson was armed with a knife. In his summing up the trial judge told the jury that they could convict Morris of manslaughter even though he had no idea that Anderson had armed himself with a knife. The Court of Appeal held that this was a misdirection in respect of Morris and quashed his conviction for manslaughter.

    In delivering the judgment of the Court of Appeal Lord Parker C.J. accepted, at p. 118, the principle formulated by Mr. Geoffrey Lane Q.C. (as he then was) on behalf of Morris:

 "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 unauthorised act. Finally, he says it is for the jury in every case to decide whether what was done was part of the joint enterprise, or went beyond it and was in fact an act unauthorised by that joint enterprise."