England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
T20087548 T20087105 T20087269 T20087252

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/07/2010

Lord Justice Hughes :

1. These appeals raise once again questions related to the concept of common or joint enterprise, and specifically as applied in cases where the charge is murder. On the facts which the jury must have found, there was an attack made upon the deceased in his home by three of the appellants, which had been organised by the fourth. No weapon was involved; the attack consisted of a beating. The case was put by the Crown as a common enterprise. It was not possible to identify individual acts of violence or to say who had done precisely what. The judge gave the jury a written document encapsulating the gist of his directions and providing a summary by way of steps to a verdict. The jury was directed that a defendant was guilty, inter alia, if:

"he participated in a plan to assault [the deceased] in which he intended to cause him some harm, less than really serious bodily harm, but realised that there was a real risk that one of the others might cause him really serious bodily harm and such harm was caused, and he did not dissociate himself from the plan."

2. The judge had a substantial number of issues to cover in his directions apart from that of joint enterprise liability. It is common ground that he did so with care and accuracy. His decision to give the jury both (commendably brief) written directions and, even more helpfully, a 'route to verdicts' should be applauded. Judges need to decide case by case whether such aids are required, but a multi-handed murder with more than one possible basis for verdict to be considered is one which will ordinarily call for a 'steps to verdict' document at least. In his directions, the judge dealt with precision with murder, manslaughter, participation and the general principles of common enterprise, including the concept of fundamental and unforeseen departure from the common purpose. His directions passed through a number of editions before being presented to the jury, and in their final form were agreed by all counsel. In every respect but two they are still agreed to be admirable. But the passage which we have quoted is contended to give rise, on closer inspection and further thought, to two difficulties:

i) it told the jury that a defendant would be guilty if he participated foreseeing that others might cause the deceased grievous bodily harm ('GBH'); it did not speak of foresight of GBH intentionally being done; and

ii) although it was dealing with possible guilt on the basis of joint enterprise, it nowhere required the jury first to be sure that at least one of the assailants (whether identified or not) had committed murder as a principal.

The contention of the appellants is that these two features are fatal to the safety of the conviction. The first submission requires us to consider the true import of the decision of the House of Lords in R v Rahman [2008] UKHL 45; [2009] 1 AC 129.

5. The jury convicted all four of murder. It must have rejected the contentions of A and D that they had no part in the beating, and of C that he had not arranged it.

The judge's direction

6. After dealing with murder and manslaughter and making crystal clear the difference in relation to intent between those two offences, the judge explained the principles of joint enterprise. His direction included the words:

"It will be necessary, therefore, to decide what, if anything, had been agreed and what a particular participant realised a fellow participant might well do in carrying out the plan."

Thus far there can be no possible complaint.

7. The document then did what is most helpful of all to a jury. It applied the law as explained to the decision making process in the case. It set out in a few lines the "Route to Verdicts". It is this, critical, part of the direction, on which this appeal is focused. It said this:

"Count 1: In relation to the defendant whose case you are considering, are you sure that:

(a) He himself unlawfully assaulted [the deceased] and caused really serious bodily harm, with that intention ? OR

(b) He participated in some way with others in a plan to cause really serious bodily harm to [the deceased] and such harm was caused ? OR

(c) He participated in a plan to assault [the deceased] in which he intended to cause him harm less than really serious bodily harm, but realised that there was a real risk that one of the others might cause him really serious bodily harm, and such harm was caused, and he did not dissociate himself from the plan ?

(d) If you are sure of any of (a), (b) or (c) then that defendant is guilty of murder…."

And the document went on to deal with the alternative count of manslaughter in a similar manner.

8. On this appeal, the critical paragraph is (c). The appellants submit that it is defective, firstly, because it ought to have read:

"…..but realised that there was a real risk that one of the others might intentionally cause him really serious bodily harm….."

and, secondly, because it should have followed a preliminary requirement that the jury be sure that at least one of the assailants (whether identified or not) killed the deceased with intent to do him GBH.

Common or joint enterprise

9. The expressions 'common enterprise' or 'joint enterprise' may be used conveniently by the courts in at least three related but not identical situations:

i) Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals, as for example when three robbers together confront the security men making a cash delivery.

ii) Where D2 aids and abets D1 to commit a single crime, as for example where D2 provides D1 with a weapon so that D1 can use it in a robbery, or drives D1 to near to the place where the robbery is to be done, and/or waits around the corner as a get-away man to enable D1 to escape afterwards.

iii) Where D1 and D2 participate together in one crime (crime A) and in the course of it D1 commits a second crime (crime B) which D2 had foreseen he might commit.

These scenarios may in some cases overlap.

10. There is utility in the use of the expressions 'common enterprise' or 'joint enterprise' in each of these situations, especially to introduce a jury to the proposition that a man may be responsible for acts which his own hand did not physically commit, if those acts are within the common purpose. But, as Lord Brown pointed out in R v Rahman at paragraph 63, the third scenario depends upon a wider principle than do the first and second. The important difference is that in the third type of scenario, D2 may be guilty of an offence (crime B) that he did not want or intend D1 to commit, providing that he foresaw that D1 might commit it in the course of their common enterprise in crime A.
11. This case involves, as many murder cases do, consideration of the third type of scenario. Here, as the jury must have found, there was an agreed common purpose to commit crime A, the beating of the deceased. The question was this. If in the course of it, one or more participants inflicted not simply injury but grievous bodily harm, when had crime B (murder) been committed by those who did not themselves personally inflict it ?

The first submission and R v Rahman

12. In Rahman there was a group attack by something between 7 and 15 people on two. The group of 7 – 15 was armed with sticks, bars and the like. In the course of the attack, somebody (unknown) delivered a fatal stab in the back to one of the victims in circumstances which suggested that it must have been done with an intent to kill (not merely to do GBH). The defendants contended that there was no basis for attributing to them any intention to kill, but rather (at most) an intention to cause GBH. The judge directed the jury that the defendants would be guilty of murder if they foresaw that another participant might, in the course of the common enterprise to attack the victims, use a lethal weapon to kill the deceased with intent to kill him or to do him really serious injury. The issue was whether he ought also to have directed the jury that the stabber's intent to kill (as distinct from an intent to cause GBH) either amounted to a fundamental departure from the common purpose or was capable of doing so, so that unless a defendant foresaw that heightened intent he was not guilty. That question was answered 'no'. The common factor in the reasons given in their Lordships' speeches was that since murder may be committed either with the intention to kill or with the intention to cause really serious bodily harm, the difference between those two intentions could not form a fundamental departure from the common purpose. Therefore it mattered not which of them the secondary participant foresaw. What mattered in that case was whether a secondary participant had foreseen the use of a knife.
13. In those circumstances, there are in Rahman observations to the effect that it is foresight of D1's act rather than of his intent which is crucial. It is necessary for us to decide whether they mean that Rahman was deciding that foresight of the intention of D1 is always irrelevant. If that is what Rahman decided, then the first criticism made of the judge's direction in this case (paragraph 2 above) would be wrong.
14. In the official Law Report of Rahman at [2009] 1 AC 129 the headnote's summary of the holding begins as follows:

"Held, dismissing the appeals,

that where the principal committed an unlawful killing with the requisite intent for murder, an accessory would be liable for murder on the basis of his foresight of what the principal might do rather than his foresight of the intention with which the principal's act might be performed;…."

Those words might be thought, if the issue which had been live in Rahman is not fully inspected, to indicate that foresight of D1's intention is always simply irrelevant, and that all that matters is foresight of his act.

15. In fairness to the law reporters, one has only to read the remainder of the headnote for there to be a clear reference to what the issue in Rahman was. The headnote continues, after a phrase relating to the relevance of knowledge of a lethal weapon to foresight of action, as follows:

"….but that an undisclosed and unforeseen intention to kill on the part of the principal was not relevant to whether the principal's act had been fundamentally different from the act or acts which the accessory had foreseen as part of the joint enterprise.."

It is accordingly necessary to look carefully at the speeches in Rahman in order to see whether the opening phrase of the headnote does indeed carry the meaning that foresight of D1's intention is always irrelevant.

16. The starting point is that the issue in Rahman was fundamental departure, or, as it may also be expressed, the scope of the common enterprise. Where the third type of joint enterprise responsibility is in question, D2 will be guilty of crime B committed by D1 if he foresees that D1 may commit it in the course of the common purpose of crime A. But if D1 departs fundamentally from the common purpose of crime A, D2 is not guilty of crime B. This was common ground in Rahman. It has been clear law since well before R v Powell and English [1999] 1 AC 1, and was confirmed by the House of Lords in that case. In Rahman the issue was whether D1's elevated intention (to kill) was, by itself, capable of amounting to a fundamental departure, even if his act of stabbing was foreseen. The answer was no.
17. At paragraph 19 Lord Bingham stated the appellants' argument, advanced by Mr Harrison QC, in clear terms as follows:

"It was strongly arguable that the principal's intention to kill, if found by the jury, took his (the principal's) action outside the scope of the common design and rendered it fundamentally different from anything the appellants had foreseen or contemplated."

18. It was in that context that he continued at paragraph 21 in these words:

"It was, inevitably, common ground between the parties that an accessory may only be criminally liable for a crime which the principal has committed, in murder unlawful killing with intent to kill or cause really serious injury. It was also common ground that the test of an accessory's liability under the wider principle explored in R v Powell (Anthony) is one of foresight. The crucial divide between the parties was: foresight of what ? The Crown's answer, clearly given by Mr Robert Smith, was: foresight of what the principal might do. On the Crown's analysis the principal's undisclosed intention is beside the point. It is his acts which matter."

Lord Bingham accepted this submission of the Crown (see paragraphs 23-25). The words which we have emphasised may, like the headnote, if read out of context, be thought to justify the proposition that foresight of D1's intention is always irrelevant. There is no doubt that they should not so be read.

19. First, the Crown submission, accepted by Lord Bingham, was certainly not that foresight of the intention of D1 was always irrelevant. It was simply that the difference between D1's intention to kill and his foreseen intention to do GBH was irrelevant to the question of the scope of the common enterprise/fundamental departure. The Crown's argument is summarised at page 138E and following of the report. It began with these words:

"The appellants' submissions are misconceived as a matter of law in that an unknown and unforeseen intent to kill on the part of the principal is insufficient per se to render his actions fundamentally different from those foreseen by the secondary parties to a common design to inflict unlawful violence where those parties foresee the infliction of serious bodily harm with that intent by him." (our emphasis)

That made crystal clear that the issue being confronted was fundamental departure and the words for which we have supplied emphasis demonstrate beyond doubt that the Crown accepted that the basic necessity for D2's liability was foresight that D1 would inflict GBH with intent. It is certainly true that in the course of his argument Mr Smith QC did refer to foresight of the principal's actions (see page 139F), and this may well have been the source of the passage from Lord Bingham's speech cited above. But soon afterwards, counsel for the Crown again repeated the basic proposition that the liability of D2 depends on foresight that D1 would act with at least the intent to do GBH. He is recorded as submitting:

"Since the liability of an accessory who does not fall within the 'basic' accessory principle is determined by his foresight of the principal's actions, those actions being accompanied by the mens rea requisite to render them a crime, it is and should be sufficient to establish the liability of a secondary party for murder to prove that he had foresight that the principal would act with one or other of the specific intentions required to render the principal guilty of murder."

(our emphasis).

20. Second, it was an assumed premise in Rahman that the jury must have accepted a common purpose to cause really serious injury, which meant foresight that D1 would act with at least that intention. The appellant's only argument was not that he foresaw no intention to cause such injury, but only that D1's intention to kill had not been foreseen. There was therefore no occasion for their Lordships to address the question whether D2 is guilty even if he does not foresee that D1 will act with at least the intent to do GBH.
21. Third, all their Lordships relied upon the general principle of common enterprise guilt as set out in the line of cases which includes Chan Wing-Siu v The Queen [1985] AC 168, R v Hyde [1991] 1 QB 134 and R v Powell and English [1999] 1 AC 1. In the citations which follow the emphasis has been supplied by ourselves. We have omitted qualifications which deal with the possibility of fundamental departure from the common purpose, which is not in issue in the present case.
22. Chan Wing-Siu was a case of an attack by three men in the course of which one or more used a knife to kill the deceased and wound his wife. Sir Robin Cooke stated the principle in terms which have often subsequently been quoted (at 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. …. It depends on contemplation or, putting the same idea in other words, authorisation, which may be express but is more often 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."

That passage speaks of foresight of the act of D1. But it is to be noted that the judgment records that trial judge had directed the jury:

"that an accused was guilty…if proved to have had in contemplation that knife might be used on the occasion by one of his co-adventurers with the intention of inflicting serious bodily injury."

And later in the judgment Sir Robin said this:

"On the other hand, if it was not even contemplated by the particular accused that serious bodily harm would be intentionally inflicted, he is not party to murder."

23. The principle was re-stated thus by Lord Lane CJ in Hyde:

"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 the murder if A, with the requisite intent, kills in the course of the venture. As Professor Smith points out, B has in those circumstances lend himself to the enterprise and by doing so he has given assistance and encouragement to A in carrying out an enterprise which B realises may involve murder."

24. In Powell and English two questions were resolved. The second related to fundamental departure from common purpose, which is often critical but need not detain us in the present case. The first, however, was whether D2 could be guilty in the absence of proof that he himself had a murderous intention, that is to say to kill or to do really serious injury. The answer given was yes; foresight sufficed. The foresight which sufficed was stated by Lord Hutton, with whose speech all others agreed, as follows (at 27E):

"…I would answer the certified question of law…by stating that …it is sufficient to found a conviction for murder for a secondary party to have 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."

Lord Steyn, agreeing, dealt specifically with the question of foresight of intent at 13F-14C. He was addressing the submission that the rule under discussion created a form of constructive liability, which would, he accepted, be contrary to principle. He said:

"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 part 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….explained how the principle applies in the case of 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…'

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…"

25. In Rahman, the passages here cited from Hyde and from Lord Hutton's speech in Powell and English were specifically adopted. If any of their Lordships had intended to alter the thus far well understood rule that proof of D2's guilt depends upon proof that he foresaw that D1 would act with the intent either to kill or to do GBH, it is inconceivable that they would not have said so expressly. They did not. To the contrary, at paragraph 68 Lord Brown re-stated the principle derived from Hyde in the following terms (again omitting that part of it relating only to fundamental departure, which is not in question in our case):

"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…."

Lords Scott, Rodger and Neuberger expressly associated themselves with this passage. [The position of the word 'intentionally' derives from the judgment of Lord Lane CJ in Hyde; the principle might perhaps be yet clearer if it were placed before 'kill', but that is mere syntactical quibble; the sense is the same.]

26. We conclude that there is no indication that Rahman meant to alter the well understood previous law and every indication that it did not. D2 must be proved to have foreseen that D1 might (not would) act with intent to kill or to do GBH. Rahman was a fundamental departure case. Where in Rahman it is said that it is foresight of act rather than foresight of intention that is relevant, that is in relation to the issue of fundamental departure. It does not mean that foresight of D1's intention is never relevant.
27. Further, as a matter of principle, the liability of D2 in the third type of joint enterprise scenario, here under discussion, rests, as all these citations show, on his having continued in the common venture of crime A when he realises (even if he does not desire) that crime B may be committed in the course of it. Where crime B is murder, that means that he can properly be held guilty if he foresees that D1 will cause death by acting with murderous intent (viz either the intent to kill or the intent to do GBH). He has associated himself with a foreseen murder. If all he foresees is that death may be caused without either of those intentions, he has not associated himself with a foreseen murder; he has associated himself with foreseen manslaughter.
28. Reference was made in argument, and in the speech of Lord Bingham in Rahman, to a single sentence derived from the judgment of Laws LJ in R v Roberts, Day and Day [2001] EWCA Crim 1594 at paragraph 52:

"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."

In that case, the defendant M Day had been one of three participants in an assault by beating. The others had been convicted of murder; he had been convicted of manslaughter, it having been his case that he did not foresee that anyone would act with an intent to kill or do GBH. The court was dealing with the submission that he ought not to have been convicted even of manslaughter. The argument advanced on his behalf had been that since he did not foresee infliction of GBH, the injuries resulting in death were not part of any joint venture for which he bore responsibility. The court rejected that argument, holding that since he had voluntarily set out to cause some harm, and death had resulted, he was guilty of manslaughter. The sentence quoted above occurs in the following context:

"As regards the second point, 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."

In other words, the point being made was the uncontroversial one that D2 need not share the mens rea of D1. That is of course the whole basis of the third type of joint enterprise liability. That passage is then followed immediately by this:

"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….."

Thus this court proceeded upon the basis that the second participant was guilty of murder because he at least foresaw the deliberate infliction of GBH, whereas the third was not because he did not. That is precisely the law as we have endeavoured to state it. This court was not beginning to say that D2 could be guilty of murder without foresight that D1 might act with murderous intent.

R v Badza

29. We recognise that in Badza [2009] EWCA Crim 1363, the judgment of this court contains the following reference to Rahman:

"It was held that, where the principal committed an unlawful killing with the requisite intent for murder, a secondary party would be liable for murder on the basis of his foresight of what the principal might do, rather than his foresight of the intention with which the principal's act might be performed." (paragraph 30)

30. That was derived in part from consideration of an observation of Lord Bingham at paragraph 18 in Rahman about the formulation of one of the questions left by the trial judge to the jury. The question as left had been:

"(3) Are you sure that in taking part in the attack…the defendant whose case you are considering either shared the intention to kill him or to cause him really serious injury or that he realised that one of the attackers might use such violence by the use of lethal weapon…as to kill him with the intent to kill or to cause him really serious injury ?"

31. At paragraph 18 of Rahman (at page 151B) Lord Bingham recorded that it had been accepted in argument that the reference to sharing the intention to kill was too favourable to the defendants since if any of them had shared that intention he would have been guilty of murder on the simple basis of his own intention without the need for any application of the third type of joint enterprise liability. When later, at paragraph 27, Lord Bingham expressly approved the trial judge's questions, he did so with the qualification that they should be "amended to remove the overly favourable direction in question (3)". It is undoubtedly true that any defendant who himself had the intention to kill would indeed be guilty, in such circumstances, without the need for the third type of joint enterprise liability. As a matter of record, close inspection of Wakerley J's directions shows that his question (3) was in fact the only place where guilt based on shared intention was left for consideration. That means that the criticism of question (3), made in argument in the House of Lords, was not so much about its content as that shared intention did not belong there, dealing with type (iii) joint enterprise, but rather elsewhere.
32. But whether that is so or not, when question (3) was summarised in Badza, perhaps in argument, it was reproduced with the part relating to shared intent to kill left out:

"Are you sure that in taking part in the attack…the defendant whose case you are considering either….or realised that one of the attackers might use such violence by the use of lethal weapons….as to kill him or to cause really serious injury.."

At paragraph 31 of Badza Lord Bingham's treatment of question (3) was then described as being approval "amended to remove reference to the intention of the principal party". That may well have contributed to the proposition in Badza that Rahman held that only foresight of act was ever relevant, as distinct from foresight of the intention of D1. But as we have shown, Lord Bingham was not contemplating the amendment of Wakerley J's question to remove reference to foresight of the intention of the principal, he was contemplating the amendment of the question to remove reference to D2 sharing that intention. And moreover it is doubtful that the question needed any amendment at all, except to put shared intent in a different place in the steps to verdict.

33. It ought to be made clear that although Badza contains these passing observations on Rahman, the point now in issue before us did not begin to arise in that case. The principal argument for the appellant was that the judge's directions had been insufficiently related to the facts and that his particular case had not received the focus that it should. Both submissions failed. The question of foresight of the intent of D1 did not arise because on the facts of that case the trial judge had left the case to the jury on the basis that it should convict only if satisfied that D2 had intended that the victim be stabbed and thus killed or done GBH. In those circumstances, the passing observations on Rahman which we have set out above were not part of the ratio of Badza. On the careful and full review of Rahman which has been conducted before us, these observations in Badza do not occasion us to alter the view which we have expressed above.

R v Lewis

34. We need say no more about Lewis [2010] EWCA Crim 496 than that it was concerned with whether a fundamental departure direction was necessary on the facts. It was not. Once again there is a passing summary of Rahman but it does not address any debate upon the question in issue before us since there had been none.

Conclusion: the first submission

35. For the reasons set out, we conclude that the judge's question (c) did fall into error in omitting the word "intentionally". D2 can be guilty of murder on the basis of the third type of joint enterprise liability only if he participates in the common enterprise of crime A and foresees that in the course of it D1 (whether identified or not) may (not will) commit murder, that is to say, act with the intention to kill or do GBH. In the light of the full debate before us, the Crown did not disagree with this conclusion. Although it has been necessary for this judgment to dissect the question in some detail, it does not follow that a direction to the jury needs to do so, and nor should it. The direction should be tailored to the issue in the case, as this one was. If this issue arises, the direction need normally be no longer than the question left at (c) in this case, with the single addition of the word 'intentionally'.
36. We should, however, add that in a great many cases, foresight of D1's act will almost inevitably carry with it foresight of an intention to kill or at least to cause really serious injury. If, as in many of the reported cases, D1 is carrying a knife or a gun or a broken bottle, and uses it, the real question will normally be whether D2 knew he was carrying it and foresaw that he might (not would) use it. If D2 did know this, then ordinarily that will mean that D2 realised (foresaw) that D1 might act with intent to kill or do really serious injury, at least unless there is some proper evidential basis for asserting the possibility that D2 foresaw an intent to inflict no or minor harm. As Lord Brown said in Rahman (at paragraph 66):

"But if the jury conclude that [D2] knew about the weapon and foresaw the possibility of its use to cause at least grievous bodily harm, then they must convict him of murder whether he knew of the killer's murderous intent or not."

[He must there be using the expression 'murderous intent' to mean the intent to kill.] In the case where D2 simply says he had no idea the weapon was there, there will often be no evidential basis for considering any issue beyond whether the contrary has been proved. Parsons [2009] EWCA Crim 64, is a recent example of just such a case. It follows that it is undoubtedly true that in many if not most cases the critical question for the jury will indeed be what act D2 foresaw that D1 might commit.

The second submission

37. It is necessary to remember that guilt based upon common enterprise is a form of secondary liability. The principle is that D2 is implicated in the guilt of D1 not only for the agreed crime A but for the further crime B which he foresaw D1 might commit in the course of A. This form of liability therefore arises only where D1 has committed the further crime B. In this case, there had to be murder by somebody before any other participant could be guilty by virtue of the principles of common enterprise. In Rahman, Lord Bingham recorded at paragraph 21:

"It was, inevitably, common ground between the parties that an accessory may only be criminally liable for a crime which the principal has committed, in murder unlawful killing with intent to kill or to cause really serious injury."

That also is how the case had been left to the jury by the judge: see his question 1 recorded at paragraph 18 (page 150E).

38. It is not, of course, necessary for the guilt of D2 that D1 be identified. In a multi-handed assault it will often be the case that no-one can say whose hand did the act which proved fatal. But what is necessary is that someone (identified or not) be shown to have committed murder.
39. In many instances of common enterprise murder there will be no doubt about there having been murder by someone. As we have said, many of the reported cases concern the use by D1 (whether identified or not) of a knife to stab or a gun to shoot. In such cases there is little doubt that D1 committed murder in stabbing or shooting, for such acts carry by themselves the almost inevitable intention to kill or to cause grievous bodily harm. But it is not quite so clear where there is no lethal weapon and the common purpose is to administer a beating. If death ensues, that may well justify the conclusion that someone at least acted with the necessary murderous intent, viz to kill or to do grievous bodily harm, but it does not necessarily do so. The issue may in some cases be a live one. The mere fact that the injuries proved fatal is a powerful pointer to their having been inflicted, by one or more of the assailants, with intent at least to do grievous bodily harm. But as everyone knows, death may sometimes result where the intent of the assailant(s) has been no more than to cause some, not serious, injury; that is the basis of many convictions for manslaughter.
40. We accept that the issue was a live one in the present case. It was not common ground that murder had been committed by anyone. Since three of the four defendants denied any participation at all, and B gave no evidence, the issue was not at the forefront of the trial, but it was one which the jury had to decide.
41. In dealing with the single case of C the judge's written directions did tell the jury that if he was found to be only the organiser and not present, he could only be guilty of murder if the jury was sure that at least one of the assailants present committed murder. That was clearly correct. The difficulty arises in relation to the other defendants. The 'Route to verdicts' provided to the jury nowhere said in terms that a defendant could only be guilty under (c) if someone (identified or not) had inflicted grievous bodily harm on the deceased with the intention of doing so, in other words if someone was guilty of murder. It was necessary that it should have done so. The Crown agreed before us.
42. If the word 'intentionally' had been included, this might have been the necessary implication of question (c), because the jury would then have been directed that a defendant was guilty if he realised that someone else might intentionally cause really serious harm and such harm was caused, but it would be preferable for the jury to be asked to consider first whether it is sure that murder was done by someone, as did Wakerley J in Rahman.
45. The consequence inevitably is that the convictions of all are unsafe and must be quashed. We invite submissions in writing as to whether a re-trial is appropriate.