Regina v Powell and Another; Regina v English

The House of Lords held that established authority supports the principle that a secondary participant in a joint criminal enterprise is liable for an offence committed by the primary offender if the secondary participant participated in the venture having foreseen the commission of that offence as a possible incident of the common enterprise. The requisite mens rea for the accessory is subjective foresight that the principal might commit the greater offence; foresight is a necessary and sufficient basis for accessory liability in such cases. The court reaffirmed the distinction between foresight and intention in the mens rea for murder (intention to kill or cause really serious bodily harm) but confirmed that the accessory principle operates across criminal offences by reference to the participant's foresight.

The court also held that where the primary offender uses a weapon or commits an act which is of a fundamentally different type from that which the secondary party foresaw, that unforeseen act may fall outside the scope of the joint enterprise and relieve the secondary party of liability for the greater offence; trial directions must therefore address whether the act was within the scope of what was foreseen.

This appeal concerned the liability of secondary participants in joint criminal enterprises where a more serious crime (murder) was committed by another participant. Two appeals were before the House: Powell and Daniels, who were convicted of murder after a drug-dealer was shot when three men went to buy drugs; and English, who was convicted of murder after an attack in which a co-accused stabbed a police officer to death.

The Crown's case in Powell and Daniels was that the appellants knew a third participant was armed with a gun and realised he might use it; in English the question arose whether English foresaw only grievous bodily harm by use of wooden posts or whether he must have foreseen the use of the knife actually employed. The convictions had been affirmed by the Court of Appeal and the points were certified to the House of Lords.

• Nature of relief sought: Appeals against convictions for murder (quashing of convictions).
• Issues framed: (i) Whether a secondary party may be convicted of murder if he realised the principal might kill or cause grievous bodily harm but did not himself intend that crime; (ii) whether a secondary party who foresaw grievous bodily harm committed by one method can be guilty where the killing was effected by a fundamentally different method or weapon which he did not foresee.
• Reasoning and decision: The House reviewed authority including Reg. v. Smith (Wesley), Reg. v. Anderson; Reg. v. Morris, Chan Wing-Siu v. The Queen, Hui Chi-ming, and others, and concluded there is a strong line of authority that participation with subjective foresight that the principal might commit the greater offence suffices for accessory liability. The court rejected the appellants' submission that Moloney and Hancock required abandoning that principle as applied to accessories. However, the court emphasised that if the killing involves an act or weapon which the secondary party did not foresee as a possibility and which falls outside the scope of the joint enterprise, the secondary party should not be convicted of the greater offence; jury directions must address this point. Applying these principles, the House dismissed the appeals of Powell and Daniels but allowed English's appeal because the trial judge failed to direct the jury sufficiently on the possibility that the knife and its use were not within English's contemplation.

The House also commented on wider concerns about the mens rea of murder and the classification of homicide, urging consideration by Parliament of reform though this issue was not determinative of the appeals.

Appeals concerning Powell and Daniels were dismissed: the court held that a secondary party who participates in a joint criminal enterprise having subjective foresight that the principal might kill or cause really serious bodily harm can be liable for murder committed by the principal; foresight is a sufficient basis for accessory liability. The appeal of English was allowed and his murder conviction quashed because the jury were not adequately directed that the use of a knife might have been an act outside the scope of what English had foreseen.

Appeals from the Court of Appeal (Criminal Division) following convictions at trial in the Crown Court. The questions on law were certified to the House of Lords for opinion. Current report: [1997] UKHL 45; earlier treatments and authorities considered include Court of Appeal decisions cited in the reasons.