Regina v Powell; Regina v English

The House of Lords answered certified questions about the liability of a secondary participant in a joint criminal enterprise when a co‑participant commits a more serious offence. The court affirmed the established principle that participation in a joint enterprise coupled with subjective foresight that another participant might commit a greater offence (for example, murder or grievous bodily harm) is a sufficient basis for convicting the secondary party of that greater offence if it is committed in the course of the enterprise. The court rejected the submission that Moloney and Hancock required a secondary party to possess the same specific intention as the principal.

The court also held that the foresight required is of the crime as a possible incident of the common enterprise and that where the act or weapon used by the principal was unforeseeable and fundamentally different from what the secondary party contemplated, the killing may fall outside the scope of the joint enterprise so as to make conviction unsafe.

The appeals arose from two related sets of convictions for murder. In Powell and Daniels the joint enterprise was to buy drugs and the Crown's case was that the third participant shot the dealer; the appellants were said to have known the third man carried a gun and to have foreseen that he might use it. In English the joint enterprise was an attack on a police officer with wooden posts; the co‑participant Weddle stabbed the officer with a knife and it was arguable that English did not know Weddle had a knife.

Procedural posture: both matters came to the House on certification from the Court of Appeal (Criminal Division). The House was asked to decide whether foresight by a secondary party that the principal might kill or cause really serious bodily harm is sufficient for conviction for murder, or whether the secondary party must himself have the intention required for murder; and, in English, whether liability extends where the principal used a weapon or method fundamentally different from that foreseen.

Issues framed:

• whether subjective foresight by a secondary party that the primary party might commit murder (or cause really serious bodily harm) suffices for secondary liability for murder;
• whether the law as to foresight for accessories is incompatible with decisions (Moloney and Hancock) about intention for the principal;
• whether an unforeseeable and fundamentally different weapon or mode of killing takes the act outside the joint enterprise.

Reasoning: the House reviewed a strong line of authority (including Reg v Smith, Chan Wing‑Siu, Hui Chi‑Ming and McAuliffe) and concluded that accessory liability rests on participation in the enterprise with subjective foresight that the greater crime was a possible incident. Moloney and Hancock were decisions about the mens rea of the principal and did not displace the accessory principle; requiring the secondary party to possess the same specific intention as the principal would, in practical and policy terms, undermine effective law enforcement against joint enterprises. However, the House accepted that if the principal's act or weapon was something which the secondary party did not foresee as a possibility and which was fundamentally different from what was contemplated, that may take the killing outside the scope of the common enterprise.

Disposition: the appeals of Powell and Daniels were dismissed (their convictions for murder upheld). The conviction of English was quashed because the jury had not been properly directed about the unforeseeability of the knife.

Appeals mixed: the appeals of Powell and Daniels were dismissed (convictions for murder upheld) because participation in a joint enterprise with subjective foresight that a co‑participant might commit murder or grievous bodily harm is sufficient for secondary liability; the appeal of English was allowed and the murder conviction quashed because the jury had not been directed that an unforeseeable and fundamentally different weapon or mode of killing may fall outside the scope of the joint enterprise.

On appeal from the Court of Appeal (Criminal Division) (order dated 25 May 1995). The House of Lords (Appellate Committee) delivered reasons and answered certified questions on the law of joint enterprise and accessory liability. Neutral citation: [1997] UKHL 57.