Court of Appeal in Northern Ireland Decisions

1. The appellant was convicted of the manslaughter of George Scott on 30 June 1998 by Kerr J sitting without a jury at Belfast Crown Court and sentenced on 27 November 1998 to ten years' imprisonment. He appealed against his conviction and sentence, but his counsel did not press the issue of sentence, and the appeal centred on the correctness of the learned judge's decision that the appellant was guilty of manslaughter. He was acquitted of murder on the ground that the principal convicted of murdering the victim had gone outside the scope of the actions contemplated or foreseen by the appellant and accordingly he was not an accessory to that crime. The judge held, however, that although the appellant did not foresee the infliction of grievous bodily harm he anticipated that the principal would inflict some injury to the victim and continued to assist in an attack which led to an unlawful killing, and therefore was guilty of manslaughter.

2. The material facts found by the judge can be stated in fairly short compass. The appellant and two other young men, Mark McGucken and his brother Gary McGucken, decided to carry out a punishment beating on George Scott, who had incurred their hostility. The three assailants evolved their plan to attack Scott during the course of the afternoon and evening of Sunday 22 September 1996. They had grievances against him because of his activities in the area, an attack by him upon Crooks and threats which he had made to the McGucken family. The assailants discussed this over a drinking session which extended over several hours in several locations. Scott had the reputation of being a "hard man", and they accordingly decided to visit him in force and armed with some type of weapon. They obtained a key to Scott's flat in Cookstown from Robert Winston Stewart, who was charged along with them with Scott's murder. George Raymond Anthony Watterson, who was also charged with murder, furnished the McGuckens and Crooks with improvised masks and a baseball bat for carrying out the attack. He also lent Crooks a jumper to conceal his conspicuous tattoos.

3. Some time after 10 pm that evening the McGuckens and Crooks used the key to enter Scott's flat at 62a Killymoon Road, Cookstown, where he lived with his girlfriend Regina McGuckin. They engaged in a confrontation with Scott, which developed into a ferocious attack on him, in the course of which he was assaulted with the baseball bat (which broke in the course of the attack), a poker and the central column from a companion set of fire-irons, and kicked about the head and body. He sustained multiple injuries in the attack, in consequence of which he died. The injuries which caused the death were an injury to the brain, caused by a blow to the forehead, and facial injuries which resulted in the inhalation of a substantial amount of blood into the air passages. The judge found that the weapon which caused the fatal injuries was wielded by Mark McGucken and that the facial injuries which caused the inhalation of blood were inflicted by him.

4. The five defendants on the indictment, the appellant, the McGuckens, Stewart and Watterson, were all charged with murder. When the trial had progressed for some days Stewart and Watterson pleaded guilty to manslaughter and their plea was accepted by the Crown and by the court. After a detailed examination of the evidence in his written judgment, the judge concluded that he was satisfied that Mark McGucken had inflicted on Scott the injuries from which he died, intending to kill or commit grievous bodily harm, and accordingly convicted him of murder. In relation to the appellant he expressed his findings as follows at page 43:

5. Later at page 50 he set out his conclusion:

6. The learned judge accordingly held, applying the principle now approved by the House of Lords in R v Powell, that as Mark McGucken had gone outside the scope of what had been envisaged as part of the common enterprise, the appellant was not guilty of murder. In reaching that conclusion from his findings of fact he was plainly correct. The issue which the judge then had to consider was whether the appellant was guilty of manslaughter where he contemplated that only some physical harm short of grievous bodily harm would be inflicted upon the victim, but the principal with whom he acted in concert went beyond the bounds of what he foresaw or contemplated and attacked the victim with lethal force and intent. Counsel for Crooks submitted to him, as he did in this court, that on the decided cases he could not be convicted of manslaughter in such circumstances. The judge considered two lines of authority, represented by R v Anderson and Morris [1966] 2 QB 110 and R v Smith [1963] 3 All ER 597, in the light of the submission that the issue had been settled by the decision of the House of Lords, and in particular the remarks of Lord Hutton, in R v Powell [1999] AC 1. He considered, however, that the matter had not been settled by R v Powell. He then reached the conclusion which I have quoted, that in circumstances in which the appellant knew that an attack of some significance would take place and that a baseball bat would be used in that attack, "where the attack results in an unlawful killing" in those circumstances he was guilty of manslaughter.

7. Mr McCrudden QC for the appellant challenged the correctness of the judge's opinion that since the decision in R v Powell the matter was still open for decision. He also submitted that in principle as well as on authority the appellant should on the judge's findings of fact have been acquitted of manslaughter as well as murder.

8. The jury found Atkinson and the appellant guilty, not of murder but of manslaughter. The report does not state on what basis they reached that verdict, but it appears that it may have been on the ground that those defendants did not intend to kill or commit grievous bodily harm. The trial judge defined manslaughter in answer to a request from the jury as follows:

9. Slade J commented on this direction at page 601A:

10. The decision of the court was that it was within the appellant's contemplation that Atkinson might use the knife in his possession to attack the barman. Slade J said trenchantly at page 602C:

11. It may be seen accordingly that the issue whether the appellant could be convicted of manslaughter if the killing of the barman was outside his contemplation did not arise and the direction of the trial judge which I have quoted did not purport to deal with this issue. He did, however, give a direction on this issue which was quoted with approval by the Court of Criminal Appeal at page 601E:

12. In this passage the judge envisages that an accessory could be found guilty of manslaughter, although he did not intend the infliction of grievous bodily harm, which would appear to fall outside the scope of the concerted action contemplated by him.

13. This passage contains a generalised statement of the law and is not confined to the type of situation common to R -v- Smith and the present case, where the accessory took part in the assault itself but was party to a joint enterprise in the course of which the assault was committed by the principal. It may also be observed that the judge expressed the accessory's mens rea in terms of intention rather than foresight or contemplation. The degree of assistance which it affords in approaching the issue to be decided in the present case is accordingly somewhat limited. In R v Betty (1963) 48 Cr App R 6 the Court of Criminal Appeal considered that an accessory who is found not guilty of murder because the principal's act was outside the scope of the concerted action contemplated by him may nevertheless be found guilty of manslaughter. In that case the appellant and a man named Brown took part in a fight with a youth named Taylor. Fists, bottles and ultimately knives were used in the fight, and Taylor was fatally stabbed by Brown. Counsel for the appellant argued that Brown's act was properly murder and that because he did not contemplate that Brown would kill Taylor or inflict grievous bodily harm upon him the appellant should not be found guilty of manslaughter. The court rejected this argument, on the ground that the stabbing was well within the scope of the concerted action, a knife attack upon Taylor. Lord Parker CJ at page 10 expressed the approval of the court of the following direction given by the trial judge:

14. The other line of authority stems from R v Anderson and Morris [1966] 2 QB 110. In that case the principal Anderson killed the victim with a knife in the course of a street fight. The accessory Morris denied that he knew that Anderson had a knife in his possession. The judge directed the jury that if they thought that there was a common design to attack the victim, but it was not proved against Morris that he had any intention to kill or cause grievous bodily harm, but that Anderson had a knife without Morris' knowledge and at some stage formed an intention to kill or commit grievous bodily harm, then Anderson could be convicted of murder and Morris of manslaughter. The jury did so find. A strong five-judge court quashed Morris' conviction in a judgment given by Lord Parker CJ. Prosecuting counsel submitted that if two or more persons engage in an unlawful act and one suddenly develops an intention to kill whereby death results, then that person is guilty of murder and those who have engaged in the unlawful act are guilty of manslaughter. In so submitting he relied upon the old case of R v Salisbury (1553) 1 Plowd 100, in which a master lay in wait to attack a man, and his servants, who had no idea what his intention was, joined in the attack, in the course of which the victim was killed. It was held that those servants were themselves guilty of manslaughter. The court declined to regard R v Salisbury as containing an acceptable principle. Lord Parker CJ said at page 120:

15. Instead the court, although referring without any disapproval to the decisions in R v Smith and R v Betty , accepted the submission of the appellant's counsel (Mr Geoffrey Lane QC), set out at page 118F –

16. In a later passage in his judgment at page 120E Lord Parker CJ referred to –

17. This decision was followed in R v Lovesey [1970] 1 QB 352, in which the issue arose whether the killing of the victim might have been outside the scope of the contemplated concerted action. The court held that in such a case the accessories would not be guilty of manslaughter. Widgery LJ said at page 356:

18. I might refer briefly at this point to my own decision at first instance in R v Gamble [1989] NI 268, with which Lord Hutton expressed concurrence in R v Powell . In that case a number of members of the terrorist group the Ulster Volunteer Force set out to administer punishment to another member by beating or "kneecapping" him, ie discharging a weapon into one of his limbs. Instead of committing an assault of this kind upon him the principals shot him with four bullets, battered him about the head and cut his throat, the last injury constituting the precipitating factor in his death. All four participants in the venture were charged with his murder. I was not satisfied beyond reasonable doubt that two of the defendants Douglas and McKee foresaw or contemplated that the victim would be killed, although each contemplated the infliction of grievous bodily harm. Douglas was the driver and was not present at the actual killing. McKee was with the principals, but the only part which he took in the assault was to kick the victim. I held after some discussion of the authorities that the crime committed by the principals was of a different kind from that contemplated by Douglas and McKee and was outside the scope of the concerted action.

19. I acquitted Douglas and McKee of murder but convicted them of wounding the victim with intent to do him grievous bodily harm. I did not address the question whether they could be convicted of manslaughter, which was not at any time argued before me, as both parties accepted that if I found the defendants not guilty of murder I could on the facts convict them of wounding with intent. The Crown did not suggest that a conviction for manslaughter would have been appropriate. As I mention later in this judgment, I now take the view that the correctness of convicting a defendant in such a case of a lesser offence may at some time require further consideration.

20. In the decision of this court in R v Wilson and King (1996, unreported) we had to consider directions given to a jury by the trial judge in a case where an elderly woman was killed in the course of a robbery. The appellants blamed each other for infliciting the fatal wounds. The judge directed the jury that if either had contemplated only slight harm to the victim they should not convict him either of murder or of manslaughter. The gound of appeal was that he should have directed them that they might in such case have convicted that defendant of manslaughter – the burden of the appellants' complaint was that when the jury had the stark choice of murder or acquittal of either defendant they might be tempted to convict rather than let him go scot-free. The decision of the court turned on the question whether the judge's direction left the issue properly to the jury whether the fatal attack was outside the contemplation of either defendant, and it was held that the direction was not sufficient. In the course of giving the judgment of the court Hutton LCJ referred to the conflict between the two lines of authority represented by R v Betty and R v Anderson and Morris . He concluded that there was a misdirection whichever of these lines was correct and, after referring to the fact that the appeal in R v Powell was then pending in the House of Lords, stated that if that had not been decided by the time the retrial of the appellants took place the jury should be charged in acordance with the principles expressed in R v Anderson and Morris. Although the judge in the present case stated at page 49 of his judgment that the court did not decide in R v Wilson and King which line of authority was to be preferred , Hutton LCJ did at the end of his judgment express the court's agreement with the view expressed by Lord Parker CJ in R v Anderson and Morris that to convict an accessory of manslaughter when the principal has departed completely from the concerted action of the common design would revolt the conscience of people today.

21. The House of Lords gave extended consideration to the liability of accessories in R v Powell [1999] AC 1. Much of the discussion of the issue in the speech of Lord Hutton, with which the other members of the House agreed, was directed to the correctness of the principle laid down by the Privy Council in Chan Wing-Siu v The Queen [1985] AC 168 and Hui Chi-Ming v The Queen [1992] 1 AC 34, that a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. The second issue concerned the question of what type of acts on the part of the principal offender would fall outside the scope of the concerted action foreseen or contemplated by the accessory, and so relieve the latter of liability for a murder committed by the principal. Inherent in this issue was the further question whether the accessory, if acquitted of murder, should be convicted of manslaughter. Lord Hutton's main conclusion on this part of the appeal was to affirm the correctness of the principle enunciated in R v Anderson and Morris , that if the principal resorts to acts which are fundamentally different from those foreseen or contemplated by the accessory, such as killing with a deadly weapon, so departing completely from the concerted action of the common design, the latter is not guilty of the murder committed by the principal. In expressing approval of this principle Lord Hutton was careful not to attempt to spell out a more precise answer to the question in case it might prescribe too rigid a formula for use by trial judges. He refrained from defining the principle by reference to the type of weapon used by the principal or contemplated by the accessory. One may accordingly regard differences between the weapon used by the principal and that contemplated by the accessory as questions of evidence rather than principle (cf R v Roberts [1993] 1 All ER 583 at 590c, per Lord Taylor CJ).

22. On the further issue whether the accessory should be held guilty of manslaughter, Lord Hutton in several places in his speech approved the conclusion reached in R v Anderson and Morris , that the accessory should not be found guilty of manslaughter. He twice quoted with approval the passage from Lord Parker CJ's judgment in which he said that to convict an accessory of manslaughter in these circumstances would revolt the conscience of people today. He then stated specifically at page 30C:

23. I accordingly do not consider it correct to say, as the judge stated in the present case, that the matter has not been resolved by R v Powell . It seems to me that it was not only an expression of opinion of high authority, but an integral part of the decision, that the accessory in a case of this type should not be found guilty of manslaughter. I note that it was followed recently by the Court of Appeal in R v Uddin [1998] 2 All ER 744.

24. This conclusion on the effect of R v Powell is sufficient to dispose of the appeal, but I should add a word about the principle underlying the decisions which lay down the rule that an accessory in the circumstances of the present case should not be convicted of manslaughter. The learned judge held at page 50 of his judgment that the appellant and Gary McGucken certainly knew that an attack of some significance would take place on Scott, that a baseball bat would be used in it, and that it was planned that both would either participate in or assist the attack. He therefore concluded that the attack resulted in the unlawful killing, which made the accessories guilty of manslaughter. It clearly did not satisfy his sense of justice that where the accessory fully intended that some measure of physical harm should be inflicted on the victim he should escape liability when the measure inflicted went beyond his contemplation. I had occasion to address this difficulty in R v Gamble [1989] NI 268 at page 284:

25. This may perhaps serve as a ground of distinction from R -v- Betty , where the judge's direction approved by the Court of Appeal classed the lethal assault as something that "resulted and grew out of the initial attack in which two men were engaged". The language of causation was also used by the court in R v Lovesey [1970] 1 QB 352 at page 356, in its reference to the victim's death being a "product of the common design". The principle underlying the acquittal of the assessory is well articulated in an article by Beaumont, Accomplices and Liability for Joint Enterprises (199- 9) 63 JCL 166 at 171:

26. Given that the appellant cannot be convicted of manslaughter, the possibility of finding him guilty of a lesser offence such as assault occasioning actual bodily harm does not arise in the present case, since he was charged on the indictment only with murder and by virtue of section 6(4) of the Criminal Law Act (Northern Ireland) 1967 the offences of which a defendant may be found guilty when acquitted of murder are limited. I would, however, wish to receive further argument before deciding the question whether a defendant acquitted of murder in circumstances such as those of the present case can properly be convicted if charged with such a lesser offence.

27. For the reasons which I have given I would allow the appeal and set aside the conviction of the appellant for manslaughter.