R v Powell (Anthony) (R v Daniels, R v English)

A secondary party to a joint criminal enterprise is guilty of murder where he participates while foreseeing that the principal might intentionally kill or cause grievous bodily harm, and the principal commits murder with that intent. Foresight of a real possibility is sufficient unless the risk was dismissed as altogether negligible.

Liability does not extend to a killing committed with a weapon or in a manner fundamentally different from anything the secondary party foresaw. Whether the principal’s conduct fell outside the scope of the venture is a question of fact. A mere difference between weapons of comparable dangerousness will not necessarily exclude liability.

These conjoined appeals concerned secondary liability for murder arising from joint criminal enterprises.

Powell and Daniels accompanied a third man to buy drugs. The dealer was shot dead. The prosecution could not prove who fired, but alleged that the appellants knew the third man had a gun and realised that he might use it to kill or cause really serious injury. They were convicted of murder, and the Court of Appeal dismissed their appeals.

English and Weddle jointly attacked a police officer with wooden posts. Weddle unexpectedly used a knife to kill the officer. English might neither have known of the knife nor foreseen its use, but was convicted after the jury were directed that foresight of really serious injury with a wooden post could suffice.

The House considered whether a secondary party must personally possess the intent required for murder and whether liability extends to a lethal act fundamentally different from the conduct foreseen.

1. Disposition. The House unanimously dismissed the appeals of Powell and Daniels. It allowed English’s appeal and quashed his murder conviction. Lord Hutton delivered the leading speech. Lord Goff, Lord Jauncey and Lord Steyn agreed with his reasons. Lord Mustill ultimately concurred in that reasoning and in the orders.

2. Secondary liability for murder. Per Lord Hutton, a participant is guilty of murder where he realises that, during the joint enterprise, the principal might kill with intent to kill or cause grievous bodily harm, and the principal commits murder with that intent. The secondary party need not himself intend death or grievous bodily harm. His culpability lies in continuing to participate while foreseeing the greater offence as a possible incident of the venture.

   Lord Steyn agreed that foresight and intention are distinct. The accessory principle nevertheless requires a subjective state of mind and does not, of itself, impose constructive liability. The need to deal effectively and justly with escalating group crime justified retaining the distinction between the mens rea of the principal and that of the accessory.

3. Degree of foresight. Per Lord Hutton, the secondary party must contemplate the relevant act as a possible incident of the venture. This suffices unless the risk was so remote that the jury conclude that he genuinely dismissed it as altogether negligible. The foresight test is generally simpler and more practical than asking whether the act was tacitly agreed.

4. Fundamentally different acts. Per Lord Hutton, secondary liability does not extend to an act of a type which the secondary party did not foresee. If the principal uses an unforeseen weapon or acts in an unforeseen manner which takes the killing outside the joint venture, the secondary party is not guilty of murder or manslaughter for that killing. Whether the departure is sufficiently fundamental is a question of fact for the jury. A secondary party will not escape liability merely because the principal used a different but equally dangerous weapon, such as a knife instead of a gun, where lethal use of such a weapon was foreseen.

5. Application. The directions in Powell and Daniels correctly permitted conviction upon knowledge of the gun and foresight that it might be used with murderous intent. English’s direction was defective because it did not require acquittal if Weddle’s unforeseen use of the knife was outside the venture. Since the jury could have found that English did not know of the knife, his conviction was unsafe.

1. House of Lords: Dismissed the appeals of Powell and Daniels. Allowed English’s appeal and quashed his conviction for murder.

2. Court of Appeal (Criminal Division): Dismissed each appellant’s appeal against conviction. In Powell and Daniels, its order was dated 25 May 1995. No report or neutral citation for the decisions under appeal is stated.

3. Trial courts: Powell and Daniels were convicted of murder following a trial before the Recorder of London. English and Weddle were convicted of murder following a trial before Owen J.