Regina v Powell and Another; Regina v English

The mental element sufficient to convict a secondary participant in a joint criminal enterprise for an offence committed by another is foresight that the other might commit that offence.

Foresight of a crime as a possible incident of the common purpose is sufficient, unless the risk was so remote as to be dismissed as negligible.

A secondary participant is not liable where the act actually done is of a fundamentally different type or involves means which the secondary participant did not and could not realistically have foreseen.

The House considered two consolidated appeals about accessory liability for killings occurring in joint enterprises.

In Powell and Daniels the defendants joined a venture to buy drugs; a third participant fatally shot the dealer. The Crown relied on the appellants' knowledge that the third man was armed.

In English the accused joined an attack in which his co-participant stabbed a police officer. It was arguable that the appellant did not know the co-participant had a knife.

The central question was whether foresight by a secondary party that the primary might intentionally kill or cause really serious injury suffices for conviction for murder, and whether liability extends where the means used were unforeseen or fundamentally different.

1. Outcome: The appeals in Powell and Daniels were dismissed; the conviction of English was quashed. Lord Hutton delivered the leading opinion which the majority accepted.
2. Primary rule (per Lord Hutton): Participation in a joint criminal enterprise with subjective foresight that another participant may commit a greater offence is sufficient to found liability for that greater offence if it is committed in the course of the enterprise. This rule follows the approach in [1985] AC 168 (Chan Wing-Siu) and related authorities.
3. Degree of foresight: The foresight required is that the act be contemplated as a possible incident of the common unlawful enterprise. Liability will not attach where the risk was so remote that the participant can be taken to have dismissed it as negligible.
4. Limitation where means are unforeseen: A secondary party is not guilty of the greater offence where the means or type of act used by the primary was fundamentally different from that which the secondary foresaw or contemplated. Lord Parker's dictum in [1966] 2 Q.B. 110 (Anderson; Morris) supplies the controlling qualification.
5. Relation to Moloney/Hancock: The House rejected the appellants' submission that Moloney and Hancock require the same specific mens rea of murder for secondary parties as for principals. Those decisions were considered but held not to displace the joint-enterprise/foresight principle.
6. Practical guidance for trial judges: Where an issue arises as to the scope of the joint venture, a direction based on subjective foresight is recommended as simpler and practicable, but judges must qualify the direction when the weapon or manner of the act was unforeseen by the accused.
7. Individual contributions: Lord Hutton gave the leading, comprehensive judgment. Lords Steyn, Mustill, Goff and Jauncey expressed concurrence with Lord Hutton's reasoning. Lord Mustill recorded preferred alternative analysis but concurred in the orders.
8. Orders: Appeals in Powell and Daniels dismissed. English's appeal allowed; conviction quashed.

• Court of Appeal (Criminal Division): Convictions in the Crown Court were upheld by the Court of Appeal, which certified questions for the House of Lords.
• House of Lords: Reasons given 30 October 1997. The House dismissed the appeals of Powell and Daniels and allowed English's appeal, quashing his conviction.