Hilary
Term
[2016] UKSC 8
[2016] UKPC 7
On appeal from: [2013] EWCA Crim 1433 and JCPC 0020 of 2015
JUDGMENT
R v Jogee (Appellant)
Ruddock (Appellant) v The Queen (Respondent)
(Jamaica)
From the Court of Appeal of Jamaica
before
Lord Neuberger, President
Lady Hale, Deputy
President
Lord Hughes
Lord Toulson
Lord Thomas
JUDGMENT GIVEN ON
18 February 2016
Heard on 27, 28 and 29
October 2015
|
Appellant
(Jogee)
Felicity Gerry QC
Catarina Sjölin
Adam Wagner
Diarmuid Laffan
(Instructed by
Defence Law)
|
|
Respondent
John McGuinness QC
Duncan Atkinson
(Instructed by
Crown Prosecution Service Appeals and Review Unit)
|
|
|
|
|
|
Appellant
(Ruddock)
Julian Knowles QC
James Mehigan
(Instructed by
Dorsey & Whitney (Europe) LLP)
|
|
Respondent
Howard Stevens QC
Rowan
Pennington-Benton
(Instructed by
Charles Russell Speechlys)
|
|
|
|
|
|
|
|
Intervener (Just
for Kids Law)
Francis FitzGibbon
QC
Caoilfhionn
Gallagher
Joanne Cecil
Daniella Waddoup
(Instructed by Just
for Kids Law)
|
|
|
|
|
|
|
|
Intervener
(Joint Enterprise Not Guilty by Association)
Timothy Moloney QC
Jude Bunting
(Instructed by ITN
Solicitors)
|
LORD HUGHES AND LORD TOULSON: (with whom Lord Neuberger, Lady Hale and Lord Thomas agree)
1.
In the language of the criminal law a person who assists or encourages
another to commit a crime is known as an accessory or secondary party. The
actual perpetrator is known as a principal, even if his role may be subordinate
to that of others. It is a fundamental principle of the criminal law that the
accessory is guilty of the same offence as the principal. The reason is not
difficult to see. He shares the physical act because even if it was not his
hand which struck the blow, ransacked the house, smuggled the drugs or forged
the cheque, he has encouraged or assisted those physical acts. Similarly he
shares the culpability precisely because he encouraged or assisted the offence.
No one doubts that if the principal and the accessory are together engaged on,
for example, an armed robbery of a bank, the accessory who keeps guard outside
is as guilty of the robbery as the principal who enters with a shotgun and
extracts the money from the staff by threat of violence. Nor does anyone doubt
that the same principle can apply where, as sometimes happens, the accessory is
nowhere near the scene of the crime. The accessory who funded the bank robbery
or provided the gun for the purpose is as guilty as those who are at the scene.
Sometimes it may be impossible for the prosecution to prove whether a defendant
was a principal or an accessory, but that does not matter so long as it can
prove that he participated in the crime either as one or as the other. These
basic principles are long established and uncontroversial.
2.
In the last 20 years a new term has entered the lexicon of criminal
lawyers: parasitic accessory liability. The expression was coined by Professor
Sir John Smith in a lecture later published in the Law Quarterly Review (Criminal
liability of accessories: law and law reform [1997] 113 LQR 453). He used
the expression to describe a doctrine which had been laid down by the Privy
Council in Chan Wing-Siu v The Queen [1985] AC 168 and developed in
later cases, including most importantly the decision of the House of Lords in R
v Powell and R v English [1999] AC 1, [1997] UKHL 45. In Chan Wing-Siu it was held
that if two people set out to commit an offence (crime A), and in the course of
that joint enterprise one of them (D1) commits another offence (crime B), the
second person (D2) is guilty as an accessory to crime B if he had foreseen the
possibility that D1 might act as he did. D2’s foresight of that possibility
plus his continuation in the enterprise to commit crime A were held sufficient
in law to bring crime B within the scope of the conduct for which he is
criminally liable, whether or not he intended it.
3.
The appellants Jogee and Ruddock were each convicted of murder after
directions to the jury in which the trial judges sought to apply the principle
deriving from Chan Wing-Siu. In these appeals the court has been asked
to review the doctrine of parasitic accessory liability and to hold that the
court took a wrong turn in Chan Wing-Siu and the cases which have
followed it. It is argued by the appellants that the doctrine is based on a
flawed reading of earlier authorities and questionable policy arguments. The
respondents dispute those propositions and argue that even if the court were
now persuaded that the courts took a wrong turn, it should be a matter for
legislatures to decide whether to make any change, since the law as laid down
in Chan Wing-Siu has been in place in England and Wales and in other
common law jurisdictions including Jamaica for 30 years. The two appeals, Jogee
in the Supreme Court and Ruddock in the Judicial Committee of the Privy
Council, were heard together.
History
4.
The Accessories and Abettors Act 1861, section 8 (as amended), provides
that:
“Whosoever shall aid, abet,
counsel or procure the commission of any indictable offence … shall be liable
to be tried, indicted and punished as a principal offender.”
For summary offences the corresponding provision is in
section 44 of the Magistrates’ Courts Act 1980.
5.
In its original form section 8 of the 1861 Act referred to “any
misdemeanour” rather than “any indictable offence”. It was amended by the
Criminal Law Act 1977 on the abolition of the previous distinction between
felonies and misdemeanours. Prior to the abolition of that distinction, the
substantive law about who could be convicted of an offence as a secondary party
was the same for felonies and misdemeanours, but for historical reasons the
terminology was different.
6.
The purpose of section 8 was to simplify the procedure for the
prosecution of secondary parties. It did not alter the substance of the law
governing secondary liability. Its language was consistent with a line of
earlier statutes. Foster commented in his Crown Law, re-published 3rd ed
(1809), pp 130-131, that the precise language used in those statutes was not
always identical but was to the same effect. The effect of the language of
section 8 was accurately summarised by the Law Commission in its report on Participating
in Crime (2007) (Law Com 305), paragraph 2.21:
“Disregarding ‘procuring’, it is
generally accepted that these specified modes of involvement cover two types of
conduct on the part of D, namely the provision of assistance and the provision
of encouragement.”
7.
Although the distinction is not always made in the authorities,
accessory liability requires proof of a conduct element accompanied by the
necessary mental element. Each element can be stated in terms which sound
beguilingly simple, but may not always be easy to apply.
8.
The requisite conduct element is that D2 has encouraged or assisted the
commission of the offence by D1.
9.
Subject to the question whether a different rule applies to cases of
parasitic accessory liability, the mental element in assisting or encouraging
is an intention to assist or encourage the commission of the crime and this
requires knowledge of any existing facts necessary for it to be criminal: National
Coal Board v Gamble [1959] 1 QB 11, applied for example in Attorney General
v Able [1984] QB 795, Gillick v West Norfolk and Wisbech Area Health Authority
[1986] AC 112 and Director of Public Prosecutions for Northern Ireland v Maxwell
[1978] 1 WLR 1350 per Lord Lowry at 1374G-1375E, approved in the House of Lords
at 1356A; 1358F; 1359E; 1362H and echoed also at 1361D.
10.
If the crime requires a particular intent, D2 must intend to assist or
encourage D1 to act with such intent. D2’s intention to assist D1 to commit the
offence, and to act with whatever mental element is required of D1, will often
be co-extensive on the facts with an intention by D2 that that offence be
committed. Where that is so, it will be seen that many of the cases discuss
D2’s mental element simply in terms of intention to commit the offence. But
there can be cases where D2 gives intentional assistance or encouragement to D1
to commit an offence and to act with the mental element required of him, but
without D2 having a positive intent that the particular offence will be
committed. That may be so, for example, where at the time that encouragement is
given it remains uncertain what D1 might do; an arms supplier might be such a
case.
11.
With regard to the conduct element, the act of assistance or encouragement
may be infinitely varied. Two recurrent situations need mention. Firstly,
association between D2 and D1 may or may not involve assistance or
encouragement. Secondly, the same is true of the presence of D2 at the scene when
D1 perpetrates the crime. Both association and presence are likely to be very
relevant evidence on the question whether assistance or encouragement was
provided. Numbers often matter. Most people are bolder when supported or
fortified by others than they are when alone. And something done by a group is
often a good deal more effective than the same thing done by an individual
alone. A great many crimes, especially of actual or threatened violence, are, whether
planned or spontaneous, in fact encouraged or assisted by supporters present
with the principal lending force to what he does. Nevertheless, neither
association nor presence is necessarily proof of assistance or encouragement; it
depends on the facts: see R v Coney (1882) 8 QBD 534, 540, 558.
12.
Once encouragement or assistance is proved to have been given, the
prosecution does not have to go so far as to prove that it had a positive
effect on D1’s conduct or on the outcome: R v Calhaem [1985] QB 808. In
many cases that would be impossible to prove. There might, for example, have
been many supporters encouraging D1 so that the encouragement of a single one
of them could not be shown to have made a difference. The encouragement might
have been given but ignored, yet the counselled offence committed. Conversely,
there may be cases where anything said or done by D2 has faded to the point of
mere background, or has been spent of all possible force by some overwhelming
intervening occurrence by the time the offence was committed. Ultimately it is
a question of fact and degree whether D2’s conduct was so distanced in time,
place or circumstances from the conduct of D1 that it would not be realistic to
regard D1’s offence as encouraged or assisted by it.
13.
An early example is the case of Hyde (1672), described in Hale’s Pleas
of the Crown (1682), vol 1, p 537, and in Foster’s Crown Law, p 354.
This was Foster’s description and explanation:
“A, B and C ride out together with
intention to rob on the highway. C taketh an opportunity to quit the company,
turneth into another road, and never joineth A and B afterwards. They upon the
same day commit a robbery. C will not be considered an accomplice in this fact.
Possibly he repented of the engagement, at least he did not pursue it; nor was
there at the time the fact was committed any engagement or reasonable
expectation of mutual defence and support so far as to affect him.”
In other words, on the particular facts A and B were not
regarded as having committed the robbery with C’s encouragement or assistance.
Any original encouragement was regarded as having been spent and there was no
other assistance. (It appears from Hale’s account that C parted from A and B at
Hounslow and that the later robbery took place three miles away.)
14.
With regard to the mental element, the intention to assist or encourage
will often be specific to a particular offence. But in other cases it may not
be. D2 may intentionally assist or encourage D1 to commit one of a range of
offences, such as an act of terrorism which might take various forms. If so, D2
does not have to “know” (or intend) in advance the specific form which the
crime will take. It is enough that the offence committed by D1 is within the
range of possible offences which D2 intentionally assisted or encouraged him to
commit (Maxwell).
15.
In Maxwell the defendant was a member of a terrorist
organisation, the Ulster Volunteer Force (“UVF”). Under UVF instructions he
took part in what he knew was a planned military mission, by guiding a car containing
three or four other men on a cross country journey to a country inn on a winter
evening. He knew that they were intending to carry out some form of violent
attack on the inn, whether by shooting, bombing or some incendiary device, and
he intentionally acted in order to help them to carry out the mission. He did
not know the precise form of attack that they were intending to carry out
(which was in fact an explosion), but it was held to be enough that he knew
that they were intending to carry out a violent attack on the inn and that he
intended to assist them to do so.
16.
The decision in Maxwell did not derogate from the principle
identified in para 9 that an intention to assist or encourage the commission of
an offence requires knowledge by D2 of any facts necessary to give the
principal’s conduct or intended conduct its criminal character. In Johnson v
Youden [1950] 1 KB 544 a builder committed an offence by selling a house
for £250 more than the maximum permitted under a statutory regulation. The £250
was paid to him in advance by the purchaser. The builder then instructed a firm
of solicitors to act for him in the sale. Two of the partners in the firm had
no knowledge of the earlier payment, but they were convicted by the magistrates
of aiding and abetting the builder’s offence. Their convictions were quashed by
the Divisional Court because they had no knowledge of the facts which gave the
transaction its criminal character. They therefore lacked the mens rea to be
guilty as accessories.
17.
Secondary liability does not require the existence of an agreement
between the principal and the secondary party to commit the offence. If a
person sees an offence being committed, or is aware that it is going to be
committed, and deliberately assists its commission, he will be guilty as an
accessory. But where two or more parties agree on an illegal course of conduct
(or where one party encourages another to do something illegal), the question
has often arisen as to the secondary party’s liability where the principal has allegedly
gone beyond the scope of what was agreed or encouraged.
18.
For Foster it was an objective question, firstly, what in substance was
agreed or encouraged, and secondly, what was likely to happen in the ordinary
course of events.
19.
As to first question, Foster wrote at p 369 (in a passage much cited in
later authorities):
“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 committeth 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
complieth with the temptation, varying only in circumstance of time and place,
or in the manner of execution, in these cases the person soliciting to the
offence will, if absent, be an accessary before the fact, if present a
principal.”
(Emphasis added. At the time when
Foster wrote, the word “fact” was used when we would use the word “act”.)
20.
As to the second question, Foster continued at p 370:
“So where the principal goeth
beyond the terms of the solicitation, if in the event the felony committed was
a probable consequence of what was ordered or advised, the person giving
such orders or advice will be an accessary to that felony …
[Foster proceeded to give three
examples. One is enough for present purposes.]
A adviseth B to rob C, he doth rob
him, and in so doing, either upon resistance made, or to conceal the fact, or
upon any other motive operating at the time of the robbery, killeth him. A is
accessary to this murder.
…
These cases are all governed by
one and the same principle. The advice, solicitation, or orders in substance
were pursued, and were extremely flagitious on the part of A. The events,
although possibly falling out beyond his original intention, were in the ordinary
course of things the probable consequences of what B did under the influence,
and at the instigation of A. And therefore, in the justice of the law, he
is answerable for them.” (Foster’s emphasis)
21.
Foster’s original edition was published in 1762, the year before his
death, and so he was writing about the law in the mid-18th century. (The
edition quoted was a re-publication.) Cases in the 19th century show that there
was a significant change of approach. It was no longer sufficient for the
prosecution to prove that the principal’s conduct was a probable consequence,
in the ordinary course of things, of the criminal enterprise instigated or
agreed to by the secondary party. The prosecution had to prove that it was part
of their common purpose, should the occasion arise.
22.
In R v Collison (1831) 4 Car & P 565 two men went out by
night with carts to steal apples. They were detected by the landowner’s
watchman. One of the thieves attacked him with a bludgeon which he was carrying
and caused the man severe injury. On the trial of the second thief for assault
and wounding with intent to murder, Garrow B ruled at p 566:
“To make the prisoner a principal,
the Jury must be satisfied that, when he and his companion went out with a
common illegal purpose of committing the felony of stealing apples, they also
entertained the common guilty purpose of resisting to death, or with extreme
violence, any persons who might endeavour to apprehend them; but if they had
only the common purpose of stealing apples, and the violence of the prisoner’s
companion was merely the result of the situation in which he found himself, and
proceeded from the impulse of the moment, without any previous concert, the
prisoner will be entitled to an acquittal.”
This ruling highlighted the importance of identifying the
common purpose. If it was only to steal apples, the defendant was not guilty of
the greater offence with which he was charged. He was guilty of that offence
only if the common purpose included using severe violence to resist arrest, should
the occasion arise.
23.
Other authorities were consistent with the direction in Collison:
see R v Macklin (1838) 2 Lewin 225, R v Luck ((1862) 3 F & F
483, and R v Turner (1864) 4 F & F 339, 341 (“on a charge of murder
there must be evidence not only of a common design to commit a felony, but a
common design quoad the homicidal act itself”, per Channell B). The position in
England and Wales was at one time complicated by the doctrine of constructive
murder known as felony murder. Under this doctrine a person was guilty of
murder if he used violence in furtherance of a felony which resulted in death,
whether or not he intended to cause death or serious harm. The doctrine did not
apply to misdemeanours, which included poaching. Pollock CB explained the law
as it affected accessories in R v Skeet (1866) 4 F & F 931, 936-937
(a case in which poachers were stopped by a gamekeeper, who was shot by one of
them):
“… the doctrine of constructive
homicide … does not apply where the only evidence is that the parties were
engaged in an unlawful purpose: not being felonious. It only applies in cases where
the common purpose is felonious, as in cases of burglary: where all the parties
are aware that deadly weapons are taken with a view to inflict death or commit
felonious violence, if resistance is offered. That doctrine arose from the
desire on the part of old lawyers to render all parties who are jointly engaged
in the commission of a felony responsible for deadly violence committed in the
course of its execution. But that doctrine has been much limited in later
times, and only applies in cases of felony, where there is no (sic)
evidence of a felonious design to carry out the unlawful purpose at all
hazards, and whatever may be the consequences. The possession of a gun would
not be any evidence of this, for a gun is used in poaching. And poaching itself
is only an unlawful act and a mere misdemeanour.”
24.
The inclusion of the word “no” in this passage appears to be an error,
because it is contrary to the general sense of the passage and to the case
reporter’s commentary at p 934 on the judgment:
“It is the common design or
intention to kill in the prosecution of the unlawful object, whether it be
misdemeanour or felony, which involves the others in the guilt of homicide.
For, even if the common purpose is felonious, if only the actual perpetrator of
the act had the intention to kill in the prosecution of the purpose, the
others, who did not concur in the act, are not guilty of the offence of
homicide.”
It will be seen that the expression “common design” is here
treated as synonymous with shared intention. (It would have been more strictly
accurate to add “or cause grievous bodily harm” after the word “kill”.)
25.
R v Spraggett [1960] Crim LR 840 is a more modern example of the
principle that where violence is used in furtherance of a criminal venture, a
co-adventurer will be liable only if he shared an intention to use violence to
resist interference or arrest. Three men were involved in the burglary of a
sub-post office. Two of them went into the building while the third waited
outside. During the burglary the owner of the shop came on the scene and was
knocked down. The appellant was convicted of burglary and assault with intent
to rob. The judge directed the jury that if the defendants jointly decided to
break into premises, each was liable for any incidental violence. The
appellant’s conviction was quashed. Lord Parker CJ said that the summing-up
treated it as a presumption of law that where a person was found to be acting
in concert with others to commit a burglary, it should be presumed that he was
also acting in concert with others to use violence in the course of the crime,
whereas the jury had to be satisfied on the evidence that there was such a
preconceived intention to use violence. (The commentary in the Criminal Law
Review noted that under the trial judge’s direction, a burglar who had no
intention to do anything to anyone might find himself guilty of murder.)
26.
The evidential relevance of the carrying of a weapon on a criminal
venture has been a common theme in the case law. Its evidential strength
depends on the circumstances. As Pollock CB observed in Skeet, a
poacher’s possession of a gun did not of itself then point to more than an
intent to use it to kill game. In other circumstances it might provide powerful
evidence of an intent to use it to overcome resistance or avoid arrest. See
Professor Glanville Williams’ Criminal Law, The General Part, 2nd
ed (1961), p 397:
“The knowledge on the part of one
criminal that his companion is carrying a weapon is strong evidence of a common
intent to use violence, but is not conclusive.”
27.
In a line of cases the courts recognised that even where there was a
joint intent to use weapons to overcome resistance or avoid arrest, the
participants might not share an intent to cause death or really serious harm.
If the principal had that intent and caused the death of another he would be
guilty of murder. Another party who lacked that intent, but who took part in an
attack which resulted in an unlawful death, would be not guilty of murder but
would be guilty of manslaughter, unless the act which caused the death was so
removed from what they had agreed as not to be regarded as a consequence of it:
R v Smith (Wesley) [1963] 1 WLR 1200, R v Betty (1964) 48 Cr App
R 6, R v Anderson and R v Morris [1966] 2 QB 110 and R v Reid
(1976) 62 Cr App R 109.
28.
In Wesley Smith (see pp 1205-1206) the trial judge directed the
jury:
“Manslaughter is unlawful killing
without an intent to kill or do grievous bodily harm. Anybody who is party to
an attack which results in an unlawful killing which results in death is a
party to the killing.
… a person who takes part in or
intentionally encourages conduct which results in a criminal offence will not
necessarily share the exact guilt of the one who actually strikes the blow. His
foresight of the consequences will not necessarily be the same as that of the
man who strikes the blow, the principal assailant, so that each may have a
different form of guilty mind, and that may distinguish their respective
criminal liability. Several persons, therefore, present at the death of a man
may be guilty of different degrees of crime - one of murder, others of unlawful
killing, which is manslaughter. Only he who intended that unlawful and
grievous bodily harm should be done is guilty of murder. He who intended only
that the victim should be unlawfully hit and hurt will be guilty of
manslaughter if death results.” (Emphasis added.)
29.
Smith was convicted of manslaughter. Because he appealed against that
conviction, it fell to a Court of Criminal Appeal of five judges to consider
the direction as a whole, including the passage relating to murder. They
praised the judge for his clear summing up, which they described as “legally
unassailable”. They added that it was possible to hypothesise a case where what
was done was wholly beyond the defendant’s contemplation, but that could not be
said in that case, where the death resulted from use of a knife which the
appellant knew that the principal offender was carrying. (We will consider
later in more detail the relevance of objective foreseeability in relation to
manslaughter.)
30.
In Betty Lord Parker CJ quoted the passage from the summing up in
Wesley Smith emphasised above and noted that the court of five judges
had approved it.
31.
In Anderson and Morris, a fatal stabbing resulted in the
conviction of Anderson for murder and Morris for manslaughter. The evidence of
Morris’s role, if any, in the attack was unclear. The judge directed the jury
that if there was a common design to attack the victim, but without any intent
by Morris to kill or cause grievous bodily harm, and if Anderson, acting
outside the common design, produced a knife about which Morris had no knowledge
and used it to kill the victim, Morris was liable to be convicted of
manslaughter. The defendants’ appeal was heard by a Court of Criminal Appeal of
five judges, presided over by Lord Parker CJ. Mr Geoffrey Lane, QC for Morris
submitted that the authorities from about 1830 onwards established the
principle that (see p 118):
“… where two persons embark on a
joint enterprise, each is liable for the acts done in pursuance of that joint
enterprise, that that includes liability for unusual consequences if they arise
from the execution of the agreed joint enterprise but (and this is the crux of
the matter) that, if one of the adventurers goes beyond what has been
tacitly agreed as part of the common enterprise, his co-adventurer is not
liable for the consequences of that unauthorised act.” (Emphasis added)
32.
It was submitted that the judge had therefore misdirected the jury in
saying that Morris could be liable if Anderson had acted outside the common
design. Accepting counsel’s proposition as set out above and allowing Morris’
appeal, Lord Parker said at p 120:
“It seems to this court that to
say that adventurers are guilty of manslaughter when one of them has departed
completely from the concerted action of the common design and has suddenly formed
an intent to kill and has used a weapon and acted in a way which no party to
that common design could suspect is something which would revolt the conscience
of people today …
Considered as a matter of
causation there may well be an overwhelming supervening event which is of such
a character that it will relegate into history matters which would otherwise be
looked on as causative factors.”
33.
The court in that case did not call into question what had been said in Wesley
Smith, and Lord Parker noted that it had been approved by the court in Betty.
The court was not therefore resiling from the general statement that where a
person takes part in an unlawful attack which results in death, he will be
guilty either of murder or of manslaughter according to whether he had the mens
rea for murder. But the court recognised that there could be cases where the
actual cause of death was not simply an escalation of a fight but “an
overwhelming supervening event”. That there had been such an event in Anderson
and Morris may have been a charitable view on the facts, but the principle
was endorsed by the court in Reid (of which the former Mr Geoffrey Lane
QC was a member).
34.
Reid and two others were tried for the murder of a colonel who was the
commander of an army training camp. The three men were alleged to be supporters
of the IRA. They went to the colonel’s house in the early hours of the morning
and rang the doorbell. The door was opened by the colonel, and one of the other
defendants immediately shot him dead. The other two men were convicted of
murder and Reid was convicted of manslaughter. All three were also convicted of
joint possession of a revolver, knife and imitation gun. Reid’s defence was
that he was not an IRA supporter and that he went with the others as an
interested but innocent spectator with no intention of causing any harm. The
jury must have rejected that defence, but must also have accepted it as possible
that he did not intend the victim to suffer death or serious harm. Reid
appealed against his conviction for manslaughter on the ground that there was
no evidence for finding that he intended to cause some harm but not serious
harm, and reliance was placed on Anderson and Morris. The appeal was
dismissed in a reserved judgment of a strong Court of Appeal (Lawton and
Geoffrey Lane LJJ and Robert Goff J).
35.
Lawton LJ distinguished Anderson and Morris on the basis that the
court in that case on its facts had regarded the act which caused death as “an
overwhelmingly supervening event”. Dealing with Reid, he said at p 112:
“The intent with which the
appellant was in joint possession of the weapons with the others has to be
inferred from the circumstances. He did not share the murderous intent. … The
first problem for us is whether this court would be entitled to infer from the
fact of joint possession an intent to do some harm to Colonel Stevenson … If
men carrying offensive - indeed deadly - weapons go to a man’s house in the
early hours of the morning for no discernible lawful purpose, they must, in our
judgment, intend to do him harm of some kind, and the very least kind of harm
is of causing fright by threats to use them. The second problem is whether, on
the evidence in this case, Colonel Stevenson’s death resulted from the unlawful
and dangerous act of being in joint possession of offensive weapons. The
appellant did not intend either death or serious injury. On the jury’s findings
O’Conaill must have gone beyond anything he may have intended ….
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 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.” (Emphasis added.)
Chan Wing-Siu [1985] AC 168
36.
The three appellants went, each armed with a knife, to a flat used by a
prostitute, where her husband was habitually present. The prosecution’s case
was that they planned to rob the husband. In written statements they admitted
going to the flat to get money from him, which they said that he owed to one of
them. The husband was stabbed to death and his wife was slashed across the
head. The appellants were all convicted of murder and wounding with intent to
cause grievous bodily harm. Complaint was made of the trial judge’s direction
to the jury that an accused was guilty on each count if proved to have had in
contemplation that a knife might be used by one of his co-adventurers with
intent to inflict serious bodily injury. It was conceded by the appellants that
if the contingency in which knives were used (such as resistance to a robbery)
was foreseen by an accused, it was not necessary that he should have regarded
the occurrence of that contingency as more probable than not; but it was
submitted that it was necessary to prove that he foresaw a more than 50%
likelihood that one or other of his co-accused would act with intent to cause
death or really serious harm.
37.
This submission was unsurprisingly rejected. It is also unsurprising
that the appeals were dismissed. There was an overwhelming case for inferring
that the appellants foresaw the likelihood of resistance and that their plan
included the possible use of knives to cause serious harm. However, the Privy
Council upheld the convictions on a different basis. Sir Robin Cooke,
delivering the judgment of the Board, said at p 175:
“In the typical case [of aiding
and abetting] the same or the same type of offence is actually intended by all
the parties acting in concert. In view of the terms of the directions to the
jury here, the Crown does not seek to support the present convictions on that
ground. 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.
That there is such a principle is
not in doubt. It turns on contemplation or, putting the same idea in other
words, authorisation, which may be express but is more usually implied. It
meets the case of a crime foreseen as a possible incident of the common
unlawful enterprise. The criminal liability lies in participating in the
venture with that foresight.”
38.
Sir Robin Cooke cited Anderson and Morris. He noted that the
Court of Criminal Appeal had reviewed a line of relevant authorities from 1830,
but no reference was made to any of them. He referred to Anderson and Morris
only for the case of one adventurer going beyond what had been agreed. He
said that in England it appeared not hitherto to have been found necessary to
analyse the test which the jury had to apply more elaborately than in the
formulation by Mr Geoffrey Lane QC which the Court of Criminal Appeal had
accepted. He drew on the judgments of the High Court of Australia in Johns v
The Queen [1980] HCA 3; (1980) 143 CLR 108 and Miller v The Queen
(1980) 55 ALJR 23. The only other English case to which he referred was Davies
v Director of Public Prosecutions [1954] AC 378.
39.
In Davies v Director of Public Prosecutions [1954] AC 378 a fight
between two groups of youths resulted in a fatal stabbing. The appellant was
convicted of murder. One of the prosecution witnesses was a youth named Lawson.
He gave evidence of an oral admission by the appellant after the event. One of
the grounds of appeal was that the judge ought to have given the jury a warning
that Lawson could be regarded as an accomplice, and therefore was someone whose
evidence required to be treated with special caution. Lawson admitted being
involved in the fight at some stage, but he denied all knowledge of a knife and
there was no evidence that he was present when it was produced. He was
initially charged with murder, but no evidence was offered against him. The
House of Lords rejected the argument that an accomplice warning was required.
Lord Simonds LC said at p 401:
“I can see no reason why, if half
a dozen boys fight another crowd, and one of them produces a knife and stabs
one of the opponents to death, all the rest of his group should be treated as
accomplices in the use of the knife and the infliction of mortal injury by that
means, unless there is evidence that the rest intended or concerted or at least
contemplated an attack with a knife by one of their number, as opposed to a
common assault. If all that was designed or envisaged was in fact a common
assault, and there was no evidence that Lawson, a party to that common assault,
knew that any of his companions had a knife, then Lawson was not an accomplice
in the crime consisting in its felonious use.”
40.
This was not a ruling that, as a matter of law, knowledge by Lawson that
one of his companions had a knife would make him an accessory to murder. Nor
was Lord Simonds addressing the question of when “contemplation” of an attack
with a knife would do so. He was speaking in the context of considering the
need for an accomplice warning. The question was whether there was evidence on
which the person concerned could be regarded as an accomplice. Evidence that he
knew that one of his companions was armed with a knife would plainly have been
evidence from which it would be open to a jury to infer a common intent to use
it (see para 26 above). There is a major difference between saying that in the
absence of evidence of knowledge of the knife there was no cause to give an
accomplice warning, and saying that knowledge of the knife and the possibility
of its use would of itself constitute the mens rea needed for guilt of murder
as an accessory.
41.
In Johns v The Queen the appellant was convicted of murder and
assault with intent to rob. His role was to drive the principal offender, W, to
a rendezvous with a third man, D. The appellant was to wait at the rendezvous
while the other two men robbed a known receiver of stolen jewellery. Afterwards
the appellant was to take possession of the proceeds and hide them in return
for a share. The appellant knew that W was carrying a pistol, and W told him
that he would not stand for any nonsense if he met any obstacle during the
robbery. In the event the victim resisted and W shot him dead.
42.
The judge directed the jury that the appellant and D would be guilty if
the act constituting the offence committed was within the contemplation of the
parties as an act done in the course of the venture on which they had embarked.
It was argued on the appellant’s behalf that while this was an appropriate
direction in the case of D, who was present and therefore a principal in the
second degree, it was a misdirection in the case of the appellant, who was an
accessory before the fact. It was submitted that in his case it was necessary
for the jury to conclude that it was a likely or probable consequence of the
way in which the crime was to be committed that the gun would be discharged so
as to kill the deceased.
43.
The High Court unanimously rejected the argument that any distinction
was to be drawn between the liability of a principal in the second degree and
an accessory before the fact. The majority judgment was given by Mason, Murphy
and Wilson JJ. They said (at p 125) that there was no reason as a matter of
legal principle why such a distinction should be drawn. They also said (at p
131):
“26. The narrow test of
criminality proposed by the applicant is plainly unacceptable for the reason
that it stakes everything on the probability or improbability of the act,
admittedly contemplated, occurring. Suppose a plan made by A, the principal
offender, and B, the accessory before the fact, to rob premises, according to
which A is to carry out the robbery. It is agreed that A is to carry a revolver
and use it to overcome resistance in the unlikely event that the premises are
attended, previous surveillance having established that the premises are
invariably unattended at the time when the robbery is to be carried out. As it
happens, a security officer is in attendance when A enters the premises and is
shot by A. It would make nonsense to say that B is not guilty merely because it
was an unlikely or improbable contingency that the premises would be attended
at the time of the robbery, when we know that B assented to the shooting in the
event that occurred.
27. In the present case
there was ample evidence from which the jury could infer that the applicant
gave his assent to a criminal enterprise which involved the use, that is the
discharge, of a loaded gun, in the event that [the victim] resisted or sought
to summon assistance. We need not recapitulate the evidence to which we have
already referred. The jury could therefore conclude that the common purpose
involved resorting to violence of this kind, should the occasion arise, and
that the violence contemplated amounted to grievous bodily harm or homicide.”
44.
This was an orthodox approach in line with the authorities going back to
Collison (1831) 4 Car & P 565.
45.
In Miller v The Queen the defendant regularly drove the principal
offender, W, on outings to pick up girls. He would drive to a deserted spot and
walk away while W satisfied his sexual desires. Sometimes the sex was
consensual and the girl would be returned unharmed, but on seven occasions W
murdered the girl and the defendant helped him to dispose of her body. The
defendant was convicted of murder on all but the first occasion. The judge
directed the jury that the defendant would be guilty of murder if he and W
acted in concert to pick up a girl and it was within his contemplation that the
particular girl might be murdered. The defendant argued that this was a
misdirection. The court held that the direction should reasonably have been
understood as referring to a plan between the parties which included the
possible murder of the girls, and as such the direction was unobjectionable. It
is worth noting, as did the High Court, that this was not a case of a plan to
carry out crime A, in which one party carried out crime B. There was nothing
illegal about the venture of picking up girls for consensual sex. It became
illegal if and when the common purpose came to include murder as an
eventuality.
46.
In Chan Wing-Siu Sir Robin Cooke touched briefly on public policy
saying (at p 177):
“What public policy requires was
rightly identified in the submissions for the Crown. Where a man lends himself
to a criminal enterprise knowing that potentially murderous weapons are to be
carried, and in the event they in fact are used by his partner with an intent
sufficient for murder, he should not escape the consequences by reliance on a
nuance of prior assessment, only too likely to have been optimistic.”
47.
It is not necessary to refer to all the cases which have followed Chan
Wing-Siu but some call for mention.
R v Slack [1989] QB 775, R v Wakely [1990] Crim LR 119 and
R v Hyde [1991] 1 QB 134
48.
Reserved judgments of the Court of Appeal, expressed to follow Chan
Wing-Siu, were given in these cases by Lord Lane CJ. In Slack he
said, at p 781, that for a person to be guilty of murder as an accessory it had
to be proved that he lent himself to a criminal enterprise involving the
infliction of serious injury or death or that he had an express or tacit
understanding with the principal that such harm or death should, if necessary,
be inflicted. In Wakely he added that mere foresight of a real
possibility of violence being used was not, academically speaking, sufficient
to constitute the mental element of murder.
49.
Professor Smith in a commentary on Wakely in the Criminal Law
Review at pp 120-121 suggested that the Court of Appeal had failed properly to
follow Chan Wing-Siu. He identified the question raised by Slack
and Wakely as being whether it was sufficient to prove that a party to a
joint enterprise knew that another party might use the violence that was used,
or whether it was necessary to prove that it was understood between them
expressly or tacitly that, if necessary, such violence would be used. The
problem arose from the elision by Sir Robin Cooke in Chan Wing-Siu at p
175, of “contemplation” and “authorisation which may be express but is more
usually implied”. Professor Smith commented that “contemplation” is not the
same thing as “authorisation”, because one may contemplate that something will
be done by another without authorising him to do it, but that the general
effect of Chan Wing-Siu was that contemplation or foresight was enough.
50.
In Hyde Lord Lane said that in Slack and Wakely the
court had been endeavouring to follow Chan Wing-Siu, but on
reconsideration he accepted Professor Smith’s criticism. Contrary to Wakely,
foresight of the possibility that B might kill or intentionally inflict serious
injury would amount to a sufficient mental element for B to be guilty of
murder.
Hui Chi-Ming v The Queen [1992] 1 AC 34
51.
In Hui Chi-Ming the Privy Council, at p 50, affirmed the
correctness of Hyde and expressly endorsed the following statement in
the judgment 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 murder if A,
with the requisite intent, kills in the course of the venture.”
R v Powell and R v English [1999] 1 AC 1
52.
The House of Lords at p 27 held in answer to a question certified by the
Court of Appeal that (subject to a qualification in the case of English) “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”. The
leading judgment was given by Lord Hutton, with whom the other judges agreed.
It was argued by the appellants that this was inconsistent with the mens rea
requirement for murder laid down in R v Moloney [1985] AC 905 and R v
Hancock [1986] AC 455, but those cases were distinguished on the basis that
they applied only to the principal offender.
53.
Lord Hutton, at p 18, considered that there was a “strong line of
authority”, beginning with Wesley Smith, that participation in a joint
criminal enterprise, with foresight or contemplation of an act as a possible
incident of that enterprise, is sufficient to impose criminal liability for
that act carried out by another participant in the enterprise. He held, at p
19, that in that case the Court of Appeal had “recognised that the secondary
party will be guilty of unlawful killing committed by the primary party with a
knife if he contemplates that the primary party may use such a weapon”. He
added that the judgment in Anderson and Morris was not intended to
depart from that principle.
54.
Lord Hutton recognised that “as a matter of strict analysis” there is a
difference between a party to a common enterprise contemplating that in the
course of it another party may use a gun or knife and a party tacitly agreeing
to the use of such a weapon, but he said that it was clear from a number of
decisions in addition to Wesley Smith that a party embarking on a joint
criminal enterprise was liable for any act which he contemplated might be
carried out by another party even if he had not tacitly agreed to that act.
55.
Lord Hutton recognised that as a matter of logic there was force in the
argument that it was anomalous that foreseeability of death or really serious
harm was not sufficient mens rea for the principal to be guilty of murder, but
was sufficient in a secondary party. But he said that there were weighty and
important practical considerations related to public policy which prevailed
over considerations of strict logic. He saw considerable force in the argument
that a party who takes part in a criminal enterprise (for example, a bank
robbery), with foresight that a deadly weapon may be used, should not escape
liability for murder because he, unlike the principal party, is not suddenly
confronted by the security officer so that he has to decide whether to use the
gun or knife or have the enterprise thwarted and face arrest.
56.
In a concurring judgment, Lord Steyn recognised at p 13, that foresight
and intention are not synonymous, but he held that foresight is a “necessary
and sufficient” ground of the liability of accessories. He too recognised that
there was at first sight substance in the argument that it was anomalous that a
lesser form of culpability was required in the case of a secondary party
involved in a criminal enterprise, viz foresight of the possible commission of
the greater offence, than in the case of the primary offender, who will be
guilty of murder only if he intended to kill or cause really serious injury. But
he held at p 14, that the answer to the supposed anomaly was to be found in
practical and policy considerations:
“If the law required proof of the
specific intention on the part of a secondary party, the utility of the
accessory principle would be gravely undermined. It is just that a secondary
party who foresees that the primary offender might kill with the intent sufficient
for murder, and assists and encourages the primary offender in the criminal
enterprise on this basis, should be guilty of murder. … The criminal justice
system exists to control crime. A prime function of that system must be to deal
justly but effectively with those who join with others in criminal enterprises.
Experience has shown that joint criminal enterprises only too readily escalate
into the commission of greater offences. In order to deal with this important
social problem the accessory principle is needed and cannot be abolished or
relaxed.”
57.
Lord Mustill agreed with the decision, but with evident unease. He said
that throughout the modern history of the law on secondary liability, in the
type of case under consideration, the responsibility of the secondary party,
D2, had been founded on participation in a joint enterprise of which the
commission of the crime by the principal offender, D1, formed a part. If D2
foresaw D1’s act, this would always, as a matter of common sense, be relevant
to the jury’s decision on whether it formed part of a course of action to which
D2 and D1 agreed, albeit often on the basis that the action would be taken if
particular circumstances should arise. In cases where D2 could not rationally
be treated as party to an express or tacit agreement to commit the greater
offence, but continued to participate, he would have favoured some lesser form
of culpability; but that could not be fitted in to the existing concept of a
joint venture. For his part he would not have favoured the abandonment of a
doctrine which had for years worked adequately in practice and its replacement
by something which he conceived to be new. But since the other four members of
the panel saw the matter differently, and for the sake of clarity in the law,
he was willing to concur in their reasoning.
58.
English, who was aged 15, and another young man, W, took part in
attacking a police sergeant with wooden posts. In the course of the attack W
drew a knife and stabbed him to death. Both youths were convicted of murder. It
was a reasonable possibility on the evidence that English did not know that W
was carrying a knife. The judge directed the jury that English would
nevertheless be guilty of murder if he foresaw a substantial risk that W might
cause serious injury to the sergeant with a wooden post. It was submitted on
behalf of English, and the House of Lords agreed, that “the use of a knife was
fundamentally different to the use of a wooden post”. The summing-up was
therefore defective and his conviction was quashed. Lord Hutton added at p 30:
“… if the weapon used by the
primary party is different to, but as dangerous as, the weapon which the
secondary party contemplated he might use, the secondary party should not
escape liability for murder because of the difference in the weapon, for
example, if he foresaw that the primary party might use a gun to kill and the
latter used a knife to kill, or vice versa.”
59.
In later cases which proceeded on the assumption that the law was as
stated in Chan Wing-Siu, courts have endeavoured to clarify the test of
what is to be regarded as “fundamentally different” for this purpose; such
cases include R v Rahman [2008] UKHL 45; [2009] 1 AC 129 and R v
Mendez [2011] QB 876. The need to address a concept of “fundamental
departure” assumed great importance because guilt was based, under the Chan
Wing-Siu and Powell and English rule, on foresight of what D1 might
do.
Australia
60.
Chan Wing-Siu was followed by the High Court of Australia in McAuliffe
v The Queen (1995) 183 CLR 108, which was in turn followed by the High
Court in Gillard v The Queen (2003) 219 CLR 1 and Clayton v The Queen
(2006) 231 ALR 500. In Clayton the majority adopted the theory (at para
20) that what is there described as “extended common purpose liability” differs
as a matter of jurisprudential foundation from secondary liability as aider or abettor,
the first being grounded in common embarkation on crime A and the second in contribution
to another’s crime. There was a dissenting judgment by Kirby J, who pointed, among
other considerations, to the disparity between the mental element required of
an aider or abettor and that required by the rule of extended common purpose
(para 102).
Analysis
61.
The court has had the benefit of a far deeper and more extensive review
of the topic of so-called “joint enterprise” liability than on past occasions.
62.
From our review of the authorities, there is no doubt that the Privy
Council laid down a new principle in Chan Wing-Siu when it held that if
two people set out to commit an offence (crime A), and in the course of it one
of them commits another offence (crime B), the second person is guilty as an
accessory to crime B if he foresaw it as a possibility, but did not necessarily
intend it. We have referred (at paras 31-33 and 39-45) to the authorities on
which the Privy Council placed reliance in laying down that principle: Davies
v Director of Public Prosecutions, R v Anderson and R v Morris, Johns
v The Queen and Miller v The Queen.
63.
What Lord Simonds said in Davies was in a very different context
and does not provide support for the Chan Wing-Siu principle for the
reasons which we have explained.
64.
In Anderson and Morris the Court of Appeal affirmed Wesley
Smith including the rule that if an adventurer departed completely from
what had been tacitly agreed as part of an agreed joint enterprise his
co-adventurer would not be liable for the consequences of that unauthorised
act. In such a situation, the effect of the overwhelming supervening event is
that any assistance is spent. The issue was whether that applied to Morris. The
court did not otherwise address the question of what is necessary to establish
joint responsibility, and specifically whether what is required is intention to
assist or mere foresight of what D1 might do. Still less did it address the
meaning of contemplation (foresight) and authorisation. It provided no
foundation for the rule in Chan Wing-Siu.
65.
The Privy Council judgment, moreover, elided foresight with
authorisation, when it said that the principle “turns on contemplation or,
putting the same idea in other words, authorisation, which may be express but
is more usually implied”. But as Professor Smith observed, contemplation and
authorisation are not the same at all.
66.
Nor can authorisation of crime B automatically be inferred from
continued participation in crime A with foresight of crime B. As Lord Brown
accurately pointed out in R v Rahman at para 63, the rule in Chan
Wing-Siu makes guilty those who foresee crime B but never intended it or
wanted it to happen. There can be no doubt that if D2 continues to participate
in crime A with foresight that D1 may commit crime B, that is evidence, and
sometimes powerful evidence, of an intent to assist D1 in crime B. But it is
evidence of such intent (or, if one likes, of “authorisation”), not conclusive
of it.
67.
In Johns v The Queen the ratio decidendi of the majority was that
there was ample evidence from which the jury could infer that the defendant
gave his assent to a criminal enterprise which involved the discharge of a
firearm, should the occasion arise. This was an entirely orthodox approach. So
too was the decision in Miller v The Queen, where the High Court held
that the judge’s direction to the jury would reasonably have been understood as
saying that the defendant would be guilty of murder if he acted in concert with
the principal offender in a plan which included the possible murder of the
victims. As already noted, that case did not involve a plan to carry out crime
A, in the course of which crime B was committed.
68.
In Powell and English Lord Hutton placed considerable reliance on
Wesley Smith, which had been cited in Chan Wing-Siu but was not
mentioned in the judgment. Lord Hutton said that he considered that in Wesley
Smith “the Court of Appeal recognised that the secondary party will be
guilty of unlawful killing committed by the primary party with a knife if he
contemplates that the primary party may use such a weapon” (p 19). But the
unlawful killing to which the Court of Appeal was referring was manslaughter,
not murder, and it is very important to understand its reasoning. The defendant
in Wesley Smith was one of a group of four men who became involved in a
row in a public house. He and one other went outside and threw bricks at the
building. One of the two who remained inside stabbed the barman with a knife
which Smith knew he carried. Smith was acquitted of murder but convicted of
manslaughter.
69.
The question in Wesley Smith was whether his conviction for
manslaughter was unsafe in the light of his acquittal of murder. The starting
point was that anyone who takes part in an unlawful and violent attack on
another person which results in death is guilty (at least) of manslaughter. There
might conceivably have been an intervening act by another person of such a
character as to break any connection between the defendant’s conduct and the
victim’s death (as, for example, in Anderson and Morris); but the fact
that it must have been within Smith’s contemplation that the principal might
act in the way that he did was fatal to the argument that he was not guilty
even of manslaughter. (See para 96 below).
70.
Although Lord Hutton quoted part of the judge’s summing-up in Wesley
Smith he ended his quotation with the first part of the passage set out at
para 28 above. (“Anybody who is party to an attack which results in an unlawful
killing … is a party to the killing”.) He did not go on to refer to the
critical passage which followed, including the statement:
“Only he who intended that
unlawful and grievous bodily harm should be done is guilty of murder. He who
intended only that the victim should be unlawfully hit and hurt will be guilty
of manslaughter if death results.”
71.
Moreover, as we have explained at para 29, the Court of Appeal had
explicitly praised the summing-up as a correct statement of the law. Far from
supporting the Chan Wing-Siu principle, Wesley Smith was an
authority contrary to it.
72.
Wesley Smith was not the only authority inconsistent with the Chan
Wing-Siu principle. We have referred to other authorities from Collison
to Reid, which were not cited in Chan Wing-Siu. Reid was
cited in Powell and English, but it was not mentioned in any of the
judgments, although it was a reserved judgment of a strong Court of Appeal
which reiterated that a secondary party could not be convicted of murder unless
he had the mens rea for murder.
73.
In Chan Wing-Siu Sir Robin Cooke referred, at p 176, to the
“modern emphasis on subjective tests of criminal guilt”. There has indeed been
a progressive move away from the historic tendency of the common law to presume
as a matter of law that the “natural and probable consequences” of a man’s act
were intended, culminating in England and Wales in its statutory removal by
section 8 of the Criminal Justice Act 1967. Since then in England and Wales the
foreseeability of the consequences has been a matter of evidence from which
intention may be, but need not necessarily be, inferred; whether the evidential
approach differs in Jamaica is a topic not addressed in argument before us. But
in any event the proper subjective counterpart to Foster’s objective test
(whether “the events, although possibly falling out beyond his original
intention, were in the ordinary course of things the probable consequence of
what B did under the influence, and at the instigation of A”) would have been
intention, as was held to be necessary in Wesley Smith and Reid.
Foresight may be good evidence of intention but it is not synonymous with it,
as Lord Steyn acknowledged in Powell and English at p 13.
74.
It was, of course, within the jurisdiction of the courts in Chan Wing-Siu
and Powell and English to change the common law in a way which made
it more severe, but to alter general principles which have stood for a long
time, especially in a way which has particular impact on a subject as difficult
and serious as homicide, requires caution; and all the more so when the change
involved widening the scope of secondary liability by the introduction of new
doctrine (since termed parasitic accessory liability). In Chan Wing-Siu
the Privy Council addressed the policy argument for the principle which it laid
down in two sentences (see para 46 above). The statement at p 177 “Where a man
lends himself to a criminal enterprise knowing that potentially murderous
weapons are to be carried, and in the event they in fact are used by his
partner with an intent sufficient for murder, he should not escape the
consequences …” may be thought to oversimplify the question of what is the
enterprise to which he has intentionally lent himself, but it also implies that
he would escape all criminal liability but for the Chan Wing-Siu
principle. On the facts postulated, if the law remained as set out in Wesley
Smith and Reid he would be guilty of homicide in the form of
manslaughter, which carries a potential sentence of life imprisonment. The
dangers of escalation of violence where people go out in possession of weapons
to commit crime are indisputable, but they were specifically referred to by the
court in Reid, when explaining why it was right that such conduct should
result in conviction for manslaughter if death resulted, albeit that the
initial intention may have been nothing more than causing fright. There was no
consideration in Chan Wing-Siu, or in Powell and English, of the
fundamental policy question whether and why it was necessary and appropriate to
reclassify such conduct as murder rather than manslaughter. Such a discussion
would have involved, among other things, questions about fair labelling and
fair discrimination in sentencing.
75.
In Powell and English Lord Hutton referred to the need to give
effective protection to the public against criminals operating in gangs (at p
25), but the same comments apply. There does not appear to have been any
objective evidence that the law prior to Chan Wing-Siu failed to provide
the public with adequate protection. A further policy reason suggested by Lord
Hutton for setting a lower mens rea requirement for the secondary party than
for the principal was that the secondary party has time to think before taking
part in a criminal enterprise like a bank robbery, whereas the principal may
have to decide on the spur of the moment whether to use his weapon. But the
principal has had an earlier choice whether to go armed or not. As for the
secondary party, he may have leisure to think before going out to rob a bank,
but the same is not true in many other cases (for example, of young people who
become suddenly embroiled in a fight in a bar and may make a quick decision
whether or not to help their friends).
76.
We respectfully differ from the view of the Australian High Court,
supported though it is by some distinguished academic opinion, that there is
any occasion for a separate form of secondary liability such as was formulated
in Chan Wing-Siu. As there formulated, and as argued by the Crown
in these cases, the suggested foundation is the contribution made by D2 to
crime B by continued participation in crime A with foresight of the possibility
of crime B. We prefer the view expressed by the Court of Appeal in Mendez,
at para 17, and by textbook writers including Smith and Hogan’s Criminal Law,
14th ed (2015), p 260 that there is no reason why ordinary principles of
secondary liability should not be of general application.
77.
The rule in Chan Wing-Siu is often described as “joint enterprise
liability”. However, the expression “joint enterprise” is not a legal term of
art. As the Court of Appeal observed in R v A [2011] QB 841, para 9, it
is used in practice in a variety of situations to include both principals and
accessories. As applied to the rule in Chan Wing-Siu, it unfortunately
occasions some public misunderstanding. It is understood (erroneously) by some
to be a form of guilt by association or of guilt by simple presence without
more. It is important to emphasise that guilt of crime by mere association has
no proper part in the common law.
78.
As we have explained, secondary liability does not require the existence
of an agreement between D1 and D2. Where, however, it exists, such agreement is
by its nature a form of encouragement and in most cases will also involve acts
of assistance. The long established principle that where parties agree to carry
out a criminal venture, each is liable for acts to which they have expressly or
impliedly given their assent is an example of the intention to assist which is
inherent in the making of the agreement. Similarly, where people come together
without agreement, often spontaneously, to commit an offence together, the
giving of intentional support by words or deeds, including by supportive
presence, is sufficient to attract secondary liability on ordinary principles.
We repeat that secondary liability includes cases of agreement between
principal and secondary party, but it is not limited to them.
79.
It will be apparent from what we have said that we do not consider that
the Chan Wing-Siu principle can be supported, except on the basis that
it has been decided and followed at the highest level. In plain terms, our
analysis leads us to the conclusion that the introduction of the principle was
based on an incomplete, and in some respects erroneous, reading of the previous
case law, coupled with generalised and questionable policy arguments. We
recognise the significance of reversing a statement of principle which has been
made and followed by the Privy Council and the House of Lords on a number of
occasions. We consider that it is right to do so for several reasons.
80.
Firstly, we have had the benefit of a much fuller analysis than on
previous occasions when the topic has been considered. In Chan Wing-Siu
only two English cases were referred to in the judgment - Anderson and
Morris and Davies. More were referred to in the judgments in Powell
and English, but they did not include (among others) Collison, Skeet,
Spraggett or notably Reid.
81.
Secondly, it cannot be said that the law is now well established and
working satisfactorily. It remains highly controversial and a continuing source
of difficulty for trial judges. It has also led to large numbers of appeals.
82.
Thirdly, secondary liability is an important part of the common law, and
if a wrong turn has been taken, it should be corrected.
83.
Fourthly, in the common law foresight of what might happen is ordinarily
no more than evidence from which a jury can infer the presence of a requisite
intention. It may be strong evidence, but its adoption as a test for the mental
element for murder in the case of a secondary party is a serious and anomalous
departure from the basic rule, which results in over-extension of the law of
murder and reduction of the law of manslaughter. Murder already has a
relatively low mens rea threshold, because it includes an intention to cause
serious injury, without intent to kill or to cause risk to life. The Chan
Wing-Siu principle extends liability for murder to a secondary party on the
basis of a still lesser degree of culpability, namely foresight only of the
possibility that the principal may commit murder but without there being any
need for intention to assist him to do so. It savours, as Professor Smith suggested,
of constructive crime.
84.
Fifthly, the rule brings the striking anomaly of requiring a lower
mental threshold for guilt in the case of the accessory than in the case of the
principal.
85.
As to the argument that even if the court is satisfied that the law took
a wrong turn, any correction should now be left to Parliament, the doctrine of
secondary liability is a common law doctrine (put into statutory form in
section 8 of the 1861 Act) and, if it has been unduly widened by the courts, it
is proper for the courts to correct the error.
86.
It is worth attention that the Westminster Parliament has legislated
over inchoate criminal liability in the Serious Crime Act 2007. Section 44
provides:
“(1) A person commits an
offence if -
(a) he does an act capable
of encouraging or assisting the commission of an offence; and
(b) he intends to encourage
or assist its commission.
(2) But he is not to be
taken to have intended to encourage or assist the commission of an offence
merely because such encouragement or assistance was a foreseeable consequence
of his act.”
Section 45 creates a parallel
offence if a person does such an act believing that the offence will be
committed and that his act will encourage or assist his commission, but both
sections are subject to a statutory defence if the defendant acted reasonably
in the circumstances as he believed them to be. It is a noteworthy feature of
the present law in England and Wales that Parliament has provided that
foresight is not sufficient mens rea for the offence of intentionally
encouraging or assisting another to commit an offence; whilst at present under Chan
Wing-Siu if that other person goes on to commit the offence, such foresight
is sufficient mens rea for the secondary party to be regarded as guilty of the
full offence at common law. The correction of the error in Chan Wing-Siu
brings the common law back into recognition of the difference between foresight
and intent, consistently with Parliament’s approach in section 44(2) of the
2007 Act and more generally in section 8 of the Criminal Justice Act 1967
(referred to at para 73 above).
87.
It would not be satisfactory for this court simply to disapprove the Chan
Wing-Siu principle. Those who are concerned with criminal justice,
including members of the public, are entitled to expect from this court a clear
statement of the relevant principles. We consider that the proper course for
this court is to re-state, as nearly and clearly as we may, the principles
which had been established over many years before the law took a wrong turn.
The error was to equate foresight with intent to assist, as a matter of law; the
correct approach is to treat it as evidence of intent. The long-standing pre Chan
Wing-Siu practice of inferring intent to assist from a common criminal
purpose which includes the further crime, if the occasion for it were to arise,
was always a legitimate one; what was illegitimate was to treat foresight as an
inevitable yardstick of common purpose. We address below the potential impact
on past convictions.
Restatement of the principles
88.
We have summarised the essential principles applicable to all cases in
paras 8 to 12 and 14 to 16. In some cases the prosecution may not be able to
prove whether a defendant was principal or accessory, but it is sufficient to
be able to prove that he participated in the crime in one way or another.
89.
In cases of alleged secondary participation there are likely to be two
issues. The first is whether the defendant was in fact a participant, that is,
whether he assisted or encouraged the commission of the crime. Such
participation may take many forms. It may include providing support by
contributing to the force of numbers in a hostile confrontation.
90.
The second issue is likely to be whether the accessory intended to
encourage or assist D1 to commit the crime, acting with whatever mental element
the offence requires of D1 (as stated in para 10 above). If the crime requires
a particular intent, D2 must intend (it may be conditionally) to assist D1 to
act with such intent. To take a homely example, if D2 encourages D1 to take
another’s bicycle without permission of the owner and return it after use, but
D1 takes it and keeps it, D1 will be guilty of theft but D2 of the lesser
offence of unauthorised taking, since he will not have encouraged D1 to act
with intent permanently to deprive. In cases of concerted physical attack there
may often be no practical distinction to draw between an intention by D2 to
assist D1 to act with the intention of causing grievous bodily harm at least
and D2 having the intention himself that such harm be caused. In such cases it
may be simpler, and will generally be perfectly safe, to direct the jury (as
suggested in Wesley Smith and Reid) that the Crown must prove
that D2 intended that the victim should suffer grievous bodily harm at least.
However, as a matter of law, it is enough that D2 intended to assist D1 to act
with the requisite intent. That may well be the situation if the assistance or
encouragement is rendered some time before the crime is committed and at a time
when it is not clear what D1 may or may not decide to do. Another example might
be where D2 supplies a weapon to D1, who has no lawful purpose in having it,
intending to help D1 by giving him the means to commit a crime (or one of a
range of crimes), but having no further interest in what he does, or indeed
whether he uses it at all.
91.
It will therefore in some cases be important when directing juries to
remind them of the difference between intention and desire.
92.
In cases of secondary liability arising out of a prior joint criminal
venture, it will also often be necessary to draw the jury’s attention to the
fact that the intention to assist, and indeed the intention that the crime
should be committed, may be conditional. The bank robbers who attack the bank
when one or more of them is armed no doubt hope that it will not be necessary
to use the guns, but it may be a perfectly proper inference that all were
intending that if they met resistance the weapons should be used with the
intent to do grievous bodily harm at least. The group of young men which faces
down a rival group may hope that the rivals will slink quietly away, but it may
well be a perfectly proper inference that all were intending that if resistance
were to be met, grievous bodily harm at least should be done.
93.
Juries frequently have to decide questions of intent (including conditional
intent) by a process of inference from the facts and circumstances proved. The
same applies when the question is whether D2, who joined with others in a
venture to commit crime A, shared a common purpose or common intent (the two
are the same) which included, if things came to it, the commission of crime B,
the offence or type of offence with which he is charged, and which was
physically committed by D1. A time honoured way of inviting a jury to consider
such a question is to ask the jury whether they are sure that D1’s act was
within the scope of the joint venture, that is, whether D2 expressly or tacitly
agreed to a plan which included D1 going as far as he did, and committing crime
B, if the occasion arose.
94.
If the jury is satisfied that there was an agreed common purpose to
commit crime A, and if it is satisfied also that D2 must have foreseen that, in
the course of committing crime A, D1 might well commit crime B, it may in
appropriate cases be justified in drawing the conclusion that D2 had the
necessary conditional intent that crime B should be committed, if the occasion
arose; or in other words that it was within the scope of the plan to which D2
gave his assent and intentional support. But that will be a question of fact
for the jury in all the circumstances.
95.
In cases where there is a more or less spontaneous outbreak of
multi-handed violence, the evidence may be too nebulous for the jury to find
that there was some form of agreement, express or tacit. But, as we have said,
liability as an aider or abettor does not necessarily depend on there being
some form of agreement between the defendants; it depends on proof of intentional
assistance or encouragement, conditional or otherwise. If D2 joins with a group
which he realises is out to cause serious injury, the jury may well infer that
he intended to encourage or assist the deliberate infliction of serious bodily
injury and/or intended that that should happen if necessary. In that case, if
D1 acts with intent to cause serious bodily injury and death results, D1 and D2
will each be guilty of murder.
96.
If a person is a party to a violent attack on another, without an intent
to assist in the causing of death or really serious harm, but the violence
escalates and results in death, he will be not guilty of murder but guilty of
manslaughter. So also if he participates by encouragement or assistance in any other
unlawful act which all sober and reasonable people would realise carried the
risk of some harm (not necessarily serious) to another, and death in fact
results: R v Church [1965] 1 QB 59, approved in Director of Public
Prosecutions v Newbury [1977] AC 500 and very recently re-affirmed in R
v F (J) & E (N) [2015] EWCA Crim 351; [2015] 2 Cr App R 5. The test is
objective. As the Court of Appeal held in Reid, if a person goes out
with armed companions to cause harm to another, any reasonable person would
recognise that there is not only a risk of harm, but a risk of the violence
escalating to the point at which serious harm or death may result. Cases in
which D2 intends some harm falling short of grievous bodily harm are a
fortiori, but manslaughter is not limited to these.
97.
The qualification to this (recognised in Wesley Smith, Anderson
and Morris and Reid) is that it is possible for death to be caused
by some overwhelming supervening act by the perpetrator which nobody in the
defendant’s shoes could have contemplated might happen and is of such a
character as to relegate his acts to history; in that case the defendant will
bear no criminal responsibility for the death.
98.
This type of case apart, there will normally be no occasion to consider
the concept of “fundamental departure” as derived from English. What
matters is whether D2 encouraged or assisted the crime, whether it be murder or
some other offence. He need not encourage or assist a particular way of
committing it, although he may sometimes do so. In particular, his intention to
assist in a crime of violence is not determined only by whether he knows what
kind of weapon D1 has in his possession. The tendency which has developed in
the application of the rule in Chan Wing-Siu to focus on what D2 knew of
what weapon D1 was carrying can and should give way to an examination of
whether D2 intended to assist in the crime charged. If that crime is murder,
then the question is whether he intended to assist the intentional infliction
of grievous bodily harm at least, which question will often, as set out above,
be answered by asking simply whether he himself intended grievous bodily harm
at least. Very often he may intend to assist in violence using whatever weapon
may come to hand. In other cases he may think that D1 has an iron bar whereas
he turns out to have a knife, but the difference may not at all affect his
intention to assist, if necessary, in the causing of grievous bodily harm at
least. Knowledge or ignorance that weapons generally, or a particular weapon,
is carried by D1 will be evidence going to what the intention of D2 was, and
may be irresistible evidence one way or the other, but it is evidence and no
more.
99.
Where the offence charged does not require mens rea, the only mens rea
required of the secondary party is that he intended to encourage or assist the
perpetrator to do the prohibited act, with knowledge of any facts and
circumstances necessary for it to be a prohibited act: National Coal Board v
Gamble.
Past convictions
100.
The effect of putting the law right is not to render invalid all
convictions which were arrived at over many years by faithfully applying the
law as laid down in Chan Wing-Siu and in Powell and English.
The error identified, of equating foresight with intent to assist rather than
treating the first as evidence of the second, is important as a matter of legal
principle, but it does not follow that it will have been important on the facts
to the outcome of the trial or to the safety of the conviction. Moreover, where
a conviction has been arrived at by faithfully applying the law as it stood at
the time, it can be set aside only by seeking exceptional leave to appeal to
the Court of Appeal out of time. That court has power to grant such leave, and
may do so if substantial injustice be demonstrated, but it will not do so
simply because the law applied has now been declared to have been mistaken.
This principle has been consistently applied for many years. Nor is refusal of
leave limited to cases where the defendant could, if the true position in law
had been appreciated, have been charged with a different offence. An example is
Ramsden [1972] Crim LR 547, where a defendant who had been convicted of
dangerous driving, before Gosney (1971) 55 Cr App R 502 had held that
fault was a necessary ingredient of the offence, was refused leave to appeal
out of time after that latter decision had been published. The court observed
that alarming consequences would flow from permitting the general re-opening of
old cases on the ground that a decision of a court of authority had removed a
widely held misconception as to the prior state of the law on which the
conviction which it was sought to appeal had been based. No doubt otherwise
everyone convicted of dangerous driving over a period of several years could
have advanced the same application. Likewise in Mitchell (1977) 65 Cr
App R 185, 189, Geoffrey Lane LJ re-stated the principle thus:
“It should be clearly understood,
and this court wants to make it even more abundantly clear, that the fact that
there has been an apparent change in the law or, to put it more precisely, that
previous misconceptions about the meaning of a statute have been put right,
does not afford a proper ground for allowing an extension of time in which to
appeal against conviction.”
For more recent statements of the same rule see Hawkins
[1997] 1 Cr App R 234 (Lord Bingham CJ) and Cottrell and Fletcher [2007] EWCA Crim 2016; [2007] 1 WLR 3262 (Sir Igor Judge P) together with the cases
reviewed in R v R [2006] EWCA Crim 1974; [2007] 1 Cr App R 150. As Cottrell
and Fletcher decides, the same principles must govern the decision of the
Criminal Cases Review Commission if it is asked to consider referring a conviction
to the Court of Appeal: see in particular para 58.
Jogee
101.
On 28 March 2012 Jogee and a co-defendant, Hirsi, were each convicted at
Nottingham Crown Court of the murder of a man named Fyfe. His appeal to the
Court of Appeal Criminal Division was dismissed. The cause of death was a stab
wound inflicted by Hirsi. The stabbing took place shortly before 2.30 am on 10
June 2011 at the home of a woman called Naomi Reid in Leicester. Jogee and
Hirsi spent the evening of 9 June 2011 together at various places, taking drink
and drugs. They became increasingly intoxicated and their behaviour became
increasingly aggressive. Shortly before midnight they arrived at Miss Reid’s
house. The prosecution’s case about what happened after that was based on her
evidence. According to her account, Jogee was angry about a recent encounter
with another man. He picked up a large knife from a kitchen block and waved it
about, saying that they should go and “shank” him. Miss Reid wanted them to
leave. She was in a relationship with the deceased and told them that she was
expecting him home shortly. They replied that they were not scared of him and
would sort him out. They left after Jogee received a call from someone wanting
to buy cocaine, but said that they would be back.
102.
Hirsi later returned alone to Miss Reid’s house and was there when the
deceased arrived. Miss Reid phoned Jogee and told him to take Hirsi away. Jogee
arrived, and he and Hirsi left. After they had gone, Miss Reid sent Jogee a
text telling him not to bring Hirsi to her house again. Within minutes the two
men returned. Hirsi entered the house, shouting. The deceased came downstairs
and there was an angry exchange. The deceased went upstairs to put on his
jeans. While that was happening, Hirsi took the knife from the kitchen.
According to Miss Reid, the deceased came down and tried to get Hirsi and Jogee
to leave. The deceased was in the hallway. Hirsi was inside the front door,
armed with the knife. Jogee was outside, striking a car with a bottle and
shouting encouragement to Hirsi to do something to the deceased. At some stage
Jogee came to the doorway, with the bottle raised, and leaned forward past
Hirsi towards the deceased, saying that he wanted to smash it over the
deceased’s head, but he was too far away. The deceased told them to go, but
both men said that they were not going anywhere. Miss Reid threatened to call
the police. Hirsi pointed the knife at her chest and grabbed her by the throat.
Miss Reid backed away and went to the kitchen, but she saw Hirsi make a
stabbing motion towards the deceased’s chest and both men ran off. The deceased
had been stabbed by Hirsi and died of his wounds.
103.
At the close of the prosecution’s case a submission was made that the
appellant had no case to answer. The judge, Dobbs J, rejected the submission.
She held that, set against the background of the behaviour of the defendants
during the evening, it was open to jury to find that the appellant realised
that Hirsi might use a knife, intending to cause at least serious bodily harm,
and that by his conduct he encouraged Hirsi to act with the requisite intent.
104.
Neither defendant gave evidence. The judge directed the jury that the
appellant was guilty of murder if he participated in the attack on the deceased,
by encouraging Hirsi, and realised when doing so that Hirsi might use the
kitchen knife to stab the deceased with intent to cause him really serious
harm. This was an orthodox direction in accordance with the Chan Wing-Siu principle.
105.
Mr John McGuinness QC on behalf of the prosecution properly accepted
that the appellant’s conviction could not stand if we were to conclude, as we
do, that the Chan Wing-Siu principle was wrong.
106.
Ms Felicity Gerry QC submitted on behalf of the appellant that he could
not properly have been convicted either of murder or of manslaughter.
107.
We regard that submission as hopeless. The jury’s verdict means that it
was sure, at the very least, that the appellant knew that Hirsi had the knife
and appreciated that he might use it to cause really serious harm. In returning
to the house, after 2.00 am, in the circumstances which we have summarised, the
appellant and Hirsi were clearly intent on some form of violent confrontation.
The appellant was brandishing a bottle, striking the car and shouting
encouragement to his co-defendant at the scene. There was a case fit to go to
the jury that he had the mens rea for murder. At a minimum, he was party to a
violent adventure carrying the plain objective risk of some harm to a person
and which resulted in death; he was therefore guilty of manslaughter at least.
The choice of disposal is whether to quash the appellant’s conviction for
murder and order a re-trial or whether to quash his conviction for murder and
substitute a conviction for manslaughter. We invite the parties’ written
submissions on that question.
Ruddock
108.
On 26 January 2010 Ruddock was convicted at Montego Bay Circuit Court of
the murder of Pete Robinson. A co-defendant, Hudson, pleaded guilty to murder
at the beginning of the trial. Ruddock’s appeal to the Court of Appeal of
Jamaica was dismissed. The prosecution’s case was that the murder was committed
in the course of robbing the deceased of his Toyota station wagon.
109.
The deceased was a taxi driver. His body was found on the morning of 1 July
2007 on a beach in the fishing village of White House. His hands and feet were
tied with cloth and his throat had been cut. On 4 July 2007 the deceased’s son
saw the Toyota being driven in the town of Maggotty. He immediately reported it
to the police. Soon afterwards two police officers came across the vehicle
parked in Maggotty. Hudson was in the driver’s seat, a woman was in the front
passenger seat and Ruddock was in the back seat. They were told that the police
had information that the vehicle had been stolen and the owner murdered, and
they were taken to Maggotty police station.
110.
The prosecution’s case against Ruddock was based on what he was alleged
to have told the police. The investigating officer, DC Spence, gave evidence
that he interviewed Ruddock under caution on 5 July 2007. He said that Ruddock
stated that he was not the one who cut the deceased’s throat, that this was
done by Hudson with a ratchet knife, but that he had tied the deceased’s hands
and feet. The officer then recorded a statement from him, which was not adduced
in evidence.
111.
After taking Ruddock’s statement, DC Spence interviewed a woman whose
picture appeared on Hudson’s mobile phone. He was asked by prosecuting counsel
what the woman said, but at this point the judge rightly intervened to warn the
prosecution against hearsay evidence. DC Spence told the jury that he then went
back to see Ruddock and, despite the judge’s warning, he continued:
“I told him that the female had
explain (sic) to me that, told me all what they have done to her and the
deceased, Pete Robinson, while they were on the beach at White House in St
James.”
112.
DC Spence said that he subsequently arrested Ruddock, and that under
caution he repeated that he had tied up the deceased’s hands and feet and that
Hudson used a ratchet knife to cut his throat. Ruddock allegedly added that
they then drove away in the car with “the female”, which the jury is likely to
have understood to mean the female about whom DC Spence had been speaking. The
female was not called as a witness.
113.
Ruddock did not give evidence, but he made an unsworn statement from the
dock to the effect that he had not been present at the murder and had no
knowledge of it. He gave an explanation for being in the car when he was picked
up by the police. He said that he told the police that he knew nothing about
the murder, but that they beat him and offered him a bribe to build a case
against Hudson.
114.
The judge directed the jury that the prosecution had to prove that each
defendant shared a common intention to commit “the offence”, and that common
intention included a situation in which “the defendant, whose case you are
considering, knew that there was a real possibility that the other defendant
might have a particular intention and with that knowledge, nevertheless, went
on to take part in it”.
115.
The judge reminded the jury that it was the prosecution’s case that the
two defendants intended to rob the deceased of his car, and that in so doing
they tied him up and cut his throat. He invited the jury to consider the
evidence of the state in which the deceased’s body was found (bound hands and
feet and throat cut) and he posed the question for their consideration whether
this was the work of one man or more than one.
116.
The judge also reminded the jury of DC Spence’s evidence of what he told
Ruddock about what the female had said regarding “what they did to her at White
House on the beach and what they did to Mr Robinson”. He commented that the
jury would have to “look at that”, together with the fact that there seemed to
have been no reply from Ruddock.
117.
There are three problems about the summing up. The first is the
direction based on the Chan Wing-Siu principle.
118.
Secondly, that the judge failed to tell the jury that if they were sure
that Ruddock was a party to carrying out the robbery, it did not automatically
follow that he was also party to the murder of the deceased. That question
required separate and further consideration. Ruddock’s alleged statements to
the police were, or were at least capable of being understood as, a denial that
he was responsible for the deceased’s murder. He admitted to tying up the
deceased, but that was consistent with a simple intent to rob. The fact that
the defence advanced by Ruddock at trial was a total denial of involvement in
the incident did not remove the judge’s obligation to point out to the jury
that there was evidence in Ruddock’s words to the police which was intended to
exculpate himself from the murder.
119.
Thirdly, and less significantly, the judge’s treatment in his summing up
of what DC Spence said to Ruddock about the female in the photograph was
unsatisfactory. It was potentially prejudicial. The judge should have told the
jury that they had not heard from the woman, and that they should ignore
altogether any reference to what she had said.
120.
Mr Howard Stevens QC properly accepted on behalf of the prosecution that
if the Board concluded that the Chan Wing-Siu principle is wrong, the
appeal must be allowed on that ground. It is therefore unnecessary to consider
further the consequences of the other defects on the safety of the conviction.
The Board invites the parties’ written submissions as to the advice which it
should humbly tender to Her Majesty regarding the disposal of the appeal.
