England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SHEFFIELD CROWN COURT
HHJ Goldsack QC
T20081003, T20080913

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2010

Lord Justice Toulson:

1. On 8 April 2009 the appellants were convicted of the murder of Dale Robertson after a trial lasting 45 days at Sheffield Crown Court before HHJ Goldsack QC. They were convicted as secondary offenders under the joint enterprise doctrine.
2. They appeal by leave of the single judge. The main argument on the hearing of the appeal was whether the judge gave the jury a sufficiently clear, accurate and fair direction about the law on joint enterprise as it applied to the appellants' case. It is a subject which has given rise to many recent appeals.
3. The evidence in the case was complex and disjointed. Many of the witnesses were young people whose evidence in chief took the form of video interviews recorded at a time when the police investigations were at a relatively early stage. It was decided that it was impracticable to try to do much by way of editing the interviews. All those who were involved in the case, whether as advocates trying to present and probe the evidence or as the jury and judge trying to digest and evaluate it, had an exceptionally difficult task. At an early point in his summing up the judge said that he had tried to pull together what each witness had said into a coherent account, but that it had been a lengthy process and that he did not pretend that in each case it had been possible to do it. It is plain from the summing up that he did indeed take great pains to do as he said and it must have involved a considerable amount of careful preparation. For the purposes of the appeal it is sufficient to give a bare outline of the facts.
4. The deceased met his death from a 19 cm stab wound which penetrated the major chamber of his heart. He received two other stab wounds to his chest, one of which penetrated his lung. The attack took place shortly before 11 pm on 6 September 2008 in the street outside 7 Rokeby Drive in the Parsons Cross area of Sheffield. The deceased was aged 19. Thompson was aged 15 and Mendez was aged 17.
5. During the evening there was a party at 15 Rokeby Drive, the home of a girl called Jade, who was celebrating her sixteenth birthday. A large number of young people were present, including the appellants. At some stage Jade was told by her brother that some "X box" (games consul) games had gone missing. Her brother phoned an older family friend called Mel, who arrived shortly afterwards together with a group of her friends in two cars to sort the matter out. The deceased was one of Mel's group. On the group's arrival the mood became hostile and there was a clash outside 15 Rokeby Drive between some of the party goers and some of Mel's group. The deceased ran off up the street towards 7 Rokeby Drive. He was chased by a group of the party goers, who had an assortment of weapons including pieces of wood and a metal bar or bars. He was caught by the group and attacked with punches, kicks and blows with one or more of the pieces of wood and bars. He was also stabbed. The deceased managed to run away from his attackers and back past Jade's house as far as 40 Rokeby Drive, where he was attacked again. After a time the attackers ran off. When the police and ambulance services arrived, the deceased was lying in the road outside 40 Rokeby Drive. He died shortly afterwards in hospital.
6. Apart from the stab wounds, the deceased's injuries were not particularly serious. There were injuries to the back which could have been caused by pieces of wood with nails in them. There were injuries to the head which were consistent with a blunt force, for example, a punch or his head hitting the ground. They were not consistent with a full force blow with a bar. The pathologist described the wounds apart from the stab wounds as superficial. The injuries did not suggest a sustained kicking to the head.
7. At the trial there were seven defendants. All were charged with murder (count one) and violent disorder (count two). The prosecution alleged that Thompson was the stabber. The evidence against him came from a number of sources. The knife, which the police recovered, had been taken to the party by a sixteen year old called Josh Kent. He gave evidence that he took it to the party in order to show off. When he produced it, Thompson snatched it from him and refused to return it. Other witnesses also spoke of Thompson having the knife. In particular, Mel described a confrontation with him outside the front of the house when he had the knife in his hand and threatened to use it. There was also evidence of him being one of the youths who chased the deceased. He suffered a cut to his left hand which could have been caused by the knife. There was evidence from friends that he admitted to them afterwards that he had done the stabbing. He was interviewed by the police on a number of occasions. At one of the interviews he produced a prepared statement which falsely suggested that he had been carrying a mobile phone in his right hand. The prosecution's case against the other defendants was that they all participated in a sustained attack on the deceased with a variety of weapons and were therefore guilty of murder as secondary parties. The prosecution did not suggest that Mendez knew that anyone in the group had a knife until after the fatal stabbing had occurred.
8. At the close of the prosecution's case the judge accepted submissions on behalf of four defendants that there was no case for them to answer on the murder count. He did so on the basis that there was no evidence fit to go to the jury that any of those defendants was involved in chasing or attacking the deceased before or at the time of the stabbing. He rejected a submission that there was no case to answer on the murder count against Mendez.
9. Thompson was the only defendant to give evidence. He denied stabbing the deceased. He said that at the party Josh Kent produced the knife and put it in his hand, but he quickly gave it back and did not see it again. After Mel had arrived and trouble had broken out, the deceased swung a punch at him but it missed. The deceased then ran off and several people chased him. Thompson admitted that he ran after them as well and that he picked up a rotten fence panel on his way. When he reached the scene of the fighting, he tried to push through the group of people and to hit the deceased, but as he reached to grab him he felt pain from his left wrist being cut. He then dropped his stick and retired from the scene. His suggestion to the police that he may have been carrying a mobile phone was untrue, but he had said it because he did not want to own up to having had a stick in his hand.
10. After the conclusion of the evidence the judge asked Mr Watson QC whether the prosecution intended in the light of Thompson's evidence to seek a conviction against him for murder on the basis of joint enterprise, as an alternative to their primary case that he was the stabber. Mr Watson replied that they did not. The judge suggested that he should reconsider the matter and he said that he would. Having done so, Mr Watson maintained his previous position. In answer to further questions from the judge, he indicated that he could not see injustice to Thompson if the judge decided to direct the jury that it was open to them to convict Thompson as a secondary offender, but that was not how he intended to present the case for the prosecution in his closing address. Mr Fish QC submitted on behalf of Thompson that it would be wrong to direct the jury in the manner suggested by the judge, since the case had been conducted from first to last on the sole basis that Thompson was the stabber and he had conducted Thompson's defence on the same basis. If there had been reason to suppose that the case might be put to the jury on an alternative basis, he would not have called Thompson to give evidence. The judge indicated that he was going to leave the alternative of secondary liability to the jury in Thompson's case, and that he would give advance notice to the jury that if they returned a verdict of guilty against Thompson on the murder count they would be asked a supplemental question as to whether the conviction was on the basis that Thompson inflicted the fatal injury or was a secondary party.
11. The jury convicted Thompson on the basis that he was a secondary party. No verdict was returned against Thompson or Mendez on count two (violent disorder) because it was an alternative count. The third defendant who was still facing the murder count was acquitted on that count but convicted of violent disorder. A fourth defendant was also convicted of violent disorder. The other defendants were acquitted.
12. Mendez applied for leave to appeal against conviction on four grounds. Ground one was that the judge ought to have upheld his submission of no case to answer. Ground two was that the judge wrongly directed the jury in relation to joint enterprise and, in particular, in relation to whether the use of the knife was "fundamentally different" from anything the accused foresaw. Grounds three and four raised discrete evidential points. The single judge granted leave to appeal on grounds two to four. He refused leave to appeal on ground one and Mendez has renewed his application. Thompson applied for and was given leave to appeal on the ground that the judge should not have left secondary liability to the jury as an alternative basis for finding him guilty of murder. He has also adopted the argument advanced on behalf of Mendez that the judge misdirected the jury on the issue of joint enterprise.
13. We consider first the main ground on which Mendez was given leave to appeal and which has been adopted by Thompson, i.e. whether the judge wrongly directed the jury in relation to joint enterprise liability.
14. The judge directed the jury as follows (with letters and numbers added for ease of reference):

"[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."

15. Mr Waterman QC introduced his argument for Mendez with some broad submissions about the framework of the law of murder and joint enterprise. He submitted that it has been heavily influenced by practical and policy considerations; that the Chan Wing-Siu principle, by which a party to a joint enterprise can be guilty of a collateral offence by virtue of mere foresight, has for policy reasons created a form of constructive liability for murder; that in this context the "fundamental difference" proviso is not an incidental adjunct but an essential protection against the law of murder going too far; and that it is critical that this protection should not be watered down in directions to the jury or expressed in less than the clearest terms.
16. We recognise the force of these comments, but it would nevertheless be wrong to regard the law in this area as merely a product of policy considerations, for this would be to overlook the underlying principles. Before considering the issues arising in this appeal, it will be helpful to revisit them, in view of the submissions advanced before us.
17. Although some distinguished scholars consider that joint enterprise liability differs doctrinally from ordinary principles of secondary criminal liability, we incline to the view that joint venture liability is an aspect of them, as it is put in Smith and Hogan's Criminal Law,12^th ed (2008), 207:

"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."

18. At its most basic level, secondary liability is founded on a principle of causation, that a defendant (D) is liable for an offence committed by a principal actor (P) if by his conduct he has caused or materially contributed to the commission of the offence (with the requisite mental element); and a person who knowingly assists or encourages another to commit an offence is taken to have contributed to its commission.
19. The principle which underlies secondary liability similarly underlies its limitation. In 1762 Foster wrote in his Crown Law (re-published, 3^rd ed, 1809, p 369):

"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)

20. The principles which apply to a pre-planned joint enterprise apply equally to a spontaneous joint enterprise: Greatrex [1999] 1 Cr App R 126. When Foster used the words "if the principal totally and substantially varieth…" he was expressing the same idea as was Lord Hutton when he used the expression "fundamentally different" in Powell and English [1999] 1 AC 1, 28. The italicised words in the passage cited from Foster explain the reason for the limitation. Conduct by P which involves a total and substantial variation from that encouraged by D could not properly be regarded as the "fruit" of D's encouragement, nor with propriety be said to have been committed under D's influence.
21. The judgment of the Court of Appeal in Reid (1975) 62 Cr App R 108, 112 (Lawton and Geoffrey Lane LJJ and Goff J) provides a good illustration of the recognition of the principle. The court commented on Anderson and Morris [1966] 2 QB 110 (in which Mr Geoffrey Lane QC had appeared as counsel) and contrasted the facts of that case with those of Reid. Lawton LJ said:

"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."

22. Reid no longer represents the common law in England and Wales on the question of the availability of manslaughter as a possible verdict in cases of that kind, because in Powell and English the House of Lords adopted a different analysis of Anderson and Morris, which excluded the possibility of a manslaughter verdict in such cases. (The House of Lords did not expressly refer to Reid or to the later case of Stewart and Schofield [1995] 3 All ER 159 which followed Reid, but the report shows that those cases were cited.) However, that is not relevant to the point under discussion. The language used by Lord Parker CJ in Anderson and Morris and highlighted in Reid – "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" – shows the recognition of the fundamental importance of some causative link between D's assistance or encouragement and P's act. Similarly in Rahman [2009] AC 129, at 40, Lord Rodger explained Gamble [1989] NI 268 on the basis that there was a break in the chain of causation between the assault on the victim with the intention of inflicting grievous bodily harm and his murder by cutting his throat.
23. The prosecution do not have to satisfy a "but for" test, i.e. that P's act would not have happened but for D's assistance or encouragement: Attorney General v Able [1984] QB 795, 812 and Calhaem [1985] QB 808. To require the prosecution to satisfy a "but for" test would be to place an impossible burden on them in many cases and would be liable to produce perverse and unprincipled results. Where a victim (V) is attacked by a group, it may well be the case that if any one of the group had not taken part in the attack the outcome would have been the same. If the prosecution had to satisfy a "but for" test in relation to each defendant, the result would be that no defendant had committed the offence, whereas it is proper to regard each as having contributed to it. So it is no defence for D to say that without his assistance or encouragement the offence would still have occurred. However, in both Attorney General v Able and Calhaem the court recognised that there must be a connecting link between D's assistance or encouragement and P's act, without attempting a precise definition of the connection, other than to say (in Calhaem) that P's act must be done within the scope of D's authority or advice. As an example, the court postulated a case where D encouraged P to kill V, and soon afterwards P became involved in a football riot in which he used a weapon and killed V, without realising that the person he attacked was the same person as D had encouraged him to kill. Although P had done what D encouraged him to do, there would have been no link between D's encouragement and P's act. For D to be found guilty jointly with P, D's conduct must (objectively) have constituted assistance or encouragement at the time of P's act, even if P (subjectively) did not need assistance or encouragement.
24. Foster remarked in the passage cited that much had been said by writers who had gone before him about cases where a person who committed a crime had gone beyond the terms of the instigation of another. Much more has been written in the intervening centuries. Professor Glanville Williams began his commentary on the subject in Criminal Law: The General Part, 2nd ed (1961), paragraph 133, by saying:

"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…"

He went on to state Foster's principle and observed that "the ascertainment of a common purpose is generally a matter of inference from the circumstances".

25. The principle is of general application but its application had led to particular problems in cases of murder. There are a number of reasons for this.
26. The first has to do with the wide mens rea for murder – an intention to cause death or serious bodily harm.
27. There is evidence that in former times grievous bodily harm was understood as being synonymous with life-threatening harm.
28. In 1839 the Criminal Law Commissioners remarked in their Fourth Report (168) XIX 235 xx, xxiv, that

"Neither is there any difference between the direct intention to kill and the intention to do some great bodily harm short of death,…as no one can wilfully do great bodily harm without putting life in jeopardy."

and that

"It is the wilful exposure of life to peril that constitutes the crime."

29. The Indian Penal Code, introduced in 1860, was intended to reflect English law. Section 300 provides that culpable homicide is murder

"…if the act by which the death is caused is done with the intention of causing death, or secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death…"

30. Lord Goddard, CJ, expressed the view to the Royal Commission on Capital Punishment 1949-1953 that "a person ought not to be liable to be convicted of murder unless he has intentionally or knowingly endangered life", and said he would direct a jury to the effect that anyone who inflicts grievous bodily harm "must know that he is likely to cause death" (1953, Cmnd 8932, paragraphs 106, 472). However, the Court of Criminal Appeal held otherwise in Vickers [1957] 2 QB 664. Delivering the judgment of the court, Lord Goddard described as impeccable the direction given by the trial judge in which he said:

"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…"

Vickers was approved by the House of Lords in Cunningham [1983] AC 566.

31. Other relevant factors have been the adoption of the principle in Chan Wing-Siu [1985] AC 168 and the removal of the ability of the jury to return a verdict of guilty of manslaughter in circumstances where D sets out with others on a criminal venture in joint possession of weapons, but without intent to kill or cause serious bodily harm, and P murders V in the course of it (the scenario considered in Reid).
32. The principle established in Chan Wing-Siu and reaffirmed in Powell and English is that a secondary party is criminally liable for acts by the primary offender of a type which the former foresees as a possibility but does not intend. Lord Rodger illustrated the principle in Rahman at 36:

"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."

33. To hold D liable for a murder of which the direct and immediate cause was an act by P, which D tried to dissuade P from committing, is to extend secondary liability for murder a long way. It has troubled some eminent jurists.
34. In Powell and English Lord Mustill concurred with the reasoning of the other members of the Appellate Committee (rather than deliver a differently reasoned speech which he had drafted) but he expressed the difficulty which he felt as follows (at 11):

"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?"

35. In Clayton v The Queen [2006] HCA 58 Kirby J said in a dissenting judgment in the High Court of Australia (at 108):

"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". But it countenances what is "undoubtedly a lesser form of mens rea". It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis."

36. It is, however, possible to argue that the Chan Wing-Siu decision is not a decision based on mere policy (although undoubtedly it is strongly affected by policy considerations) but can be accommodated within the concept of causation which underlies secondary liability. The argument is that by going along with P in the criminal venture knowing that P may commit murder, D encourages or assists P to place himself in the position where that may occur and that P's conduct should not in those circumstances be regarded as breaking the chain of causation between D's assistance and encouragement in embarking on the joint venture and the resulting fatality. (The late Professor Sir John Smith thought that the law was maybe too harsh, but that what he termed "parasitic accessory liability" was not completely "constructive", because it requires an element of culpability with respect to the greater offence; D is assisting or encouraging an activity which he is aware may result in the commission of that offence: Criminal Liability of Accessories; Law and Law Reform (1997) 113 Law Quarterly Review 453, 465, footnote 36.)
37. It is true that the same reasoning would not be applied if the underlying joint venture was lawful. If, for example, D and P agreed to go to a football match, at which P got into a fight and killed a rival fan, D would not be guilty of murder merely because he knew that P had a propensity for football hooliganism and was capable of acting with uncontrolled violence. (Those who regard joint enterprise liability as founded on a separate principle point to this difference.) It is certainly the case that in treating D as having criminal responsibility for the foreseen acts of P in the course of an unlawful joint enterprise, but not a lawful joint enterprise, the courts have recognised a lack of moral equivalence. In this respect their approach to causation is influenced by a moral component, whether it is just to consider D culpable for what occurred.
38. Some would argue, in company with Lord Mustill in Powell and English, that where D and P embark on a criminal venture in which P goes further than D wishes, but foreseeably so, D has a measure of culpability for P's act and V's resulting death but usually at a lower level than P. When Reid was good law, the difference was accommodated by the possibility of a manslaughter verdict, but that is no longer available; D is guilty of murder.
39. Taking these factors together, Mr Waterman submitted that joint enterprise liability for murder under English law is now more far reaching than in the past, because on a strict view of the authorities D may be liable for a murder committed by P, although D neither had the mens rea for murder, nor foresaw that P might have the mens rea for murder, nor foresaw the possibility of V's death, provided that D foresaw the possibility of P's action and of V suffering serious harm. This, submitted Mr Waterman, provides the context in which the question has to be considered how far D should additionally be liable for action by P which D did not foresee, on the ground that P's action was not so different as to be beyond the scope of the joint enterprise.
40. It is apparent from everything which has ever been written on the subject that the question "Did P go beyond the common purpose?" is one of degree. There is no "bright line" test, although it is easy to give examples which would obviously fall on one side of the line or the other. In R v Caton (1874) 12 Cox 624 Lush J said:

"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."

41. Lush J postulated a fist fight between equal numbers on each side. If, by contrast, a group set about a solitary victim, with repeated heavy kicks to his head while he was lying injured on the ground, a blow to the head with a weapon might not be regarded as very different.
42. The court was referred to passages in Uddin [1999] QB 431, Powell and English and Rahman about the different lethality of different weapons. This is not new. In the seventeenth century Hale wrote in his Pleas of the Crown (re-published, 1800 ed, vol 1, p 436):

"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."

What matters is not simply the difference in the weapon but the way in which it is likely to be used and the degree of injury which it is likely to cause. Lord Bingham observed in Rahman at 22:

"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."

43. The Law Commission in its Consultation Paper A New Homicide Act for England and Wales? 2005 CP 117, p 131, suggested:

"(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"."

44. This passage is helpful in focusing concentration on the life-threatening nature of P's unexpected conduct as compared with the harm foreseen or intended by D. However, between the least and the most dangerous forms of serious harm there is a wide spectrum. If the common purpose is to kill and P does so, it should not alter D's liability for murder whether P used a different and possibly surer way of achieving the objective than they had planned. This would be a case where in Foster's words "the principal in substance complyeth with the temptation, varying only in…the manner of execution". The problem arises where the common purpose is to cause serious harm.
45. The essence of Mr Waterman's argument can be stated in this way. In cases where the common purpose is not to kill but to cause serious harm, D is not liable for the murder of V if the direct cause of V's death was a deliberate act by P which was of a kind (a) unforeseen by D and (b) likely to be altogether more life-threatening than acts of the kind intended or foreseen by D. Mr Watson QC for the prosecution did not dissent from this proposition. The reference to "a deliberate act" is to the quality of the act – deliberate and not by chance – rather than to any consideration of P's intention as to the consequences.
46. On a subject so recently considered by the House of Lords on two occasions, we would be reluctant about attempting to restate, gloss or interpret the expressions of principle to be found in those cases, for fear of adding unnecessarily to the case law on the subject, but for two matters. The first is that it is Mr Waterman's central submission that the judge's direction to the jury did not properly reflect the distinction intended to be conveyed by expressions such as "fundamentally different". The second is that the expression "fundamentally different" still seems to be causing trouble. The judge said so in this case. In his ruling on the submissions of no case to answer he ruefully observed:

"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…"

Later he said:

"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."

47. In our judgment the proposition stated in paragraph 45 is both sound in principle and consistent with Powell and English and Rahman. It would not be just that D should be found guilty of the murder of V by P, if P's act was of a different kind from, and much more dangerous than, the sort of acts which D intended or foresaw as part of the joint enterprise.
48. This is not a difficult idea to grasp and it is capable of being explained to a jury shortly and simply. It does not call for expert evidence or minute calibration. In a case of spontaneous or semi-spontaneous group violence, typically fuelled by alcohol, it is highly unlikely that the participants will have thought carefully about the exact level of violence and associated injury which they intend to cause or foresee may be caused. All that a jury can in most cases be expected to do is form a broad brush judgment about the sort of level of violence and associated risk of injury which they can safely conclude that the defendant must have intended or foreseen. They then have to consider as a matter of common sense whether P's unforeseen act (if such it was) was of a nature likely to be altogether more life-threatening than acts of the nature which D foresaw or intended. It is a question of degree, but juries are used to dealing with questions of degree. There are bound to be border line cases, but if the jury are left in real doubt they must acquit. The shorter and simpler the general direction, the better. The judge will no doubt point out to the jury the factors relied on by the defence and by the prosecution for arguing that P's act should, or should not, be considered "in a different league" from what D intended or foresaw (to use the homely expression of the trial judge in Rahman, which the House of Lords approved). Those are matters of fact for the jury to weigh.
49. Against that background, Mr Waterman made a number of criticisms of the direction given to the jury in the present case. He submitted, first, that the judge failed to put across to the jury the key point summarised in the proposition stated above; and secondly, that the judge made a number of misleading or inappropriate comments, the overall effect of which was to play down the factors supporting the defendant's case, and to minimise the difference between what Mendez foresaw and the unforeseen stabbing of the deceased. Mr Waterman analysed in detail the paragraphs of the summing-up set out in paragraph 14, but he reserved his main criticisms for paragraph [F] and we will concentrate on those criticisms.
50. F6:

"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."

Mr Waterman said that this sentence involved taking pieces from the evidence of a large number of different witnesses and adding them together so as to present a total picture which was not described by any of them. On its own we would not attach weight to that complaint. The statement was certainly an amalgam, but the judge went on to give the jury a summary of the evidence given by each witness and the jury had heard the evidence over several weeks. They would have formed their own overall impression.

51. F7:

"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."

Mr Waterman submitted that the same might be said about most if not all weapons. Even a child's catapult, to take the example given by Lord Bingham in Rahman, could cause death if used to propel a stone or sharp missile at a particularly vulnerable part of the body. But that does not, or should not, detract from the point that there is an obviously recognisable difference between a child's catapult and a sawn-off shotgun (similar to Hale's distinction between a wand and a great club). The judge's direction was calculated to minimise the difference between a piece of wood or metal bar and a knife. Having seen photographs of the pieces of wood and metal which the police found at the scene, we consider that Mr Waterman's criticism is well-founded.

52. Paragraph F8:

"Ask yourselves when would the attack have stopped if someone had not called out that he had been stabbed?"

Mr Waterman said that there was no evidence that anyone called out that Dale had been stabbed and that this led to the end of the attack. Mr Watson accepted that this was so. In any case, Mr Waterman submitted that this was an improper invitation to the jury to speculate about what would have happened to Dale if the attackers had not realised that he was badly hurt. There is substance in these criticisms.

53. F9:

"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."

Mr Waterman submitted that to put that question against the "factual background" introduced in the immediately preceding sentences was objectionable. By leading the jury to approach the question in the way that he did, the judge took the jury's attention away from the question whether the stabbing of Dale was an act of a kind unforeseen by the appellants and likely to be altogether more life-threatening than acts of the kind which they did foresee. There is force in this submission.

54. Mr Waterman also complained that nowhere in this part of the summing-up did the judge make any reference to the fact that the injuries sustained by Dale other than the knife wounds were superficial. He dealt with the pathologist's evidence later when summarising the evidence. However, it is submitted that when the judge suggested to the jury that some of the weapons used were capable of causing death if they caught Dale on the most vulnerable parts of the body or were used repeatedly, he should at least have reminded the jury that, however they might theoretically have been used, their actual usage resulted in only minor injuries. There is also force in this submission.
55. These directions went to the central issue in the case against Mendez. On the question whether the judge put across to the jury fairly the key point which they had to decide, Mr Watson submitted that in D3, repeated in E2, and in F11, the judge gave a sufficient direction on that issue. The submission would be more cogent if it were not for the comments in which those directions were enveloped.
56. Looking at the matter overall, we accept Mr Waterman's submission that the judge failed to direct the jury on the central issue in a way which was sufficiently clear and balanced. Mr Watson properly accepted that if we came to that conclusion the inevitable consequence must be that the conviction of Mendez cannot be considered safe and should be quashed. He further accepted that the same must apply to Thompson, since he too was convicted as a secondary party.
57. That conclusion makes it unnecessary for us to consider the other two evidential grounds on which Mendez was given leave to appeal against his conviction. However, in his case there remains the ground on which he renews his application for leave to appeal against conviction, that is, that the judge ought to have upheld his submission of no case to answer on the murder count.
58. In rejecting that submission the judge said that the combined effect of the prosecution's evidence, if accepted by the jury, was that "there was an attack in two parts, each involving a number of people delivering blows by pole, bar and feet as well as fists". He concluded that it was for the jury to say whether the sudden and unforeseen use of a knife in those circumstances made it "fundamentally different" from anything foreseen by the accused.
59. Mr Waterman submitted that the unforeseen use of a knife was plainly so different from anything foreseen by Mendez that no jury could have found him guilty of murder on a proper direction. There is no dispute that the stabbing of the victim was an unforeseen act as far as Mendez was concerned. The critical question of fact was whether it was likely to be altogether more life-threatening than acts of the kind which Mendez intended or foresaw. That depends on drawing inferences from the ferocity of the attack in which Mendez joined. The natural and probable answer appears to us to be that the use of the knife to stab the deceased did present an altogether more life-threatening risk than any act which Mendez intended or foresaw, judging from the description of the evidence in the judge's summing-up to the jury.
60. However we are at a disadvantage, compared with the judge, in that we do not have the same knowledge of the details of the evidence or ability to picture the scene as he had at the time of his ruling on the submission of no case to answer. We have not seen full transcripts of the evidence. Having decided that Mendez's appeal should be allowed, we do not think that it would be in the interests of justice to delay matters so as to obtain further details of the evidence. We know enough from the summing-up to be able to form a view of the strength or weakness of the case for the purpose of considering any application which might be made for a re-trial. In these circumstances we decline at this stage to grant leave to advance this further ground of appeal. It is unnecessary.
61. We turn to Thompson's separate ground of appeal. This is that the judge ought not in his case to have left to the jury the possible alternative of secondary liability. In our judgment this ground of appeal has no merit. Mr Fish QC rightly accepted that on the evidence there was a case for finding Thompson guilty of murder as a secondary party. His submission was that it was unfair for the judge to leave that case to the jury when it was never the case put forward by the prosecution. It may happen that the evidence in a case may be capable of supporting a verdict, or basis of verdict, for which neither the prosecution nor the defendant contends. If so, there is no general principle which prevents the judge from leaving that possibility to the jury. He must not do so if it would create unfairness, but we can see no unfairness in the present case. The possibility arose from the evidence which Thomson himself gave. Mr Fish said that Thompson would not have given evidence if Mr Fish had foreseen the way in which the judge might leave the matter to the jury. However, that does not in itself make it unfair. The judge was not asked for any assurance before Thompson gave evidence about how he would direct the jury in the light of any evidence which Thompson might give, nor would he have been right to do so, since it might depend on what evidence the defendant gave. The reality is that by giving evidence to rebut the prosecution's case that he was the stabber, and by explaining his actions as he did, Thompson opened the possibility of the jury finding him guilty as a secondary party and he has no proper cause for complaint that the judge left that possibility to the jury.
62. For the reasons which we have given, Mendez's and Thompson's appeals will be allowed and their convictions for murder quashed. Because they found the appellants guilty of murder, the jury did not return verdicts against them on the alternative count of violent disorder. However, the jury must have been sure that each of them took part in a violent attack on the deceased.
63. Subject to further argument, it appears to the court that the appropriate disposal in the case of Mendez would be to substitute a verdict of guilty on the alternative count. As against Thompson the prosecution's case that he was guilty of murder was significantly stronger than its case against Mendez. Although the jury were not satisfied that Thompson did the stabbing, there was evidence that he had been in possession of the knife prior to the attack and had threatened to use it. It was therefore open to the jury to find that he was aware of the possibility that the knife might be used in the course of the attack. We will consider what order should be made in his case in the light of any further submissions.