McCarthy, R v

A secondary party may be guilty of murder where he joins a plan to attack the victim with weapons, intends that death or at least grievous bodily harm should be caused, and is present intending to play a part in furtherance of that purpose. He need not personally strike the victim.

Liability does not arise from an unforeseen departure from the common design, such as the unexpected use of a deadly weapon. However, a participant who continues in a concerted attack after becoming aware that a weapon may be used remains liable if it causes the fatal injury. Directions must be read as a whole; an omission will not render a conviction unsafe where the necessary requirements were otherwise clearly conveyed and the verdict would inevitably have been the same.

The appellant was convicted at Preston Crown Court of murder and conspiracy to cause grievous bodily harm following the fatal armed attack on Stephen Cole by a large group of men. He appealed his murder conviction, with leave of the full court.

He admitted joining the group that searched for Cole and entering the public house where Cole was attacked, but denied joining any plan to cause serious harm or knowing that others carried weapons. The sole ground challenged the judge’s directions on joint enterprise. It was submitted that, under R v Powell and English [1999] 1 AC 1, the jury had to be sure that the appellant knew of, and agreed to, the use of bladed weapons.

1. Appeal dismissed. The conviction for murder remained safe. Kennedy LJ delivered the court’s single judgment.
2. The judge’s principal direction correctly required the jury to be sure that the appellant was present pursuant to a plan to attack Cole with weapons, intending to kill or cause grievous bodily harm. In that context, the weapons meant the bladed weapons used in the fatal attack. A defendant who was not party to such a plan, or who was unaware of the weapons, could not be convicted on that direction.
3. The direction accorded with R v Powell and English [1999] 1 AC 1. A secondary party is not liable for an unforeseen departure from the common design, including an unexpected use of a deadly weapon. The court also applied the principle in Uddin [1989] 1 Cr App R 319: a participant who continues a concerted attack after learning that a weapon is present and may be used is liable for murder if it inflicts the fatal wound.
4. The answer to the jury’s question correctly explained that physical violence by the appellant was unnecessary if he had agreed that serious harm should be done and was present intending to play a part in furtherance of that purpose. Although the answer did not repeat the reference to weapons, the summing up had already made that requirement clear.
5. The jury’s conviction on the conspiracy count showed that it rejected the appellant’s assertion that he was not party to a plan to cause serious harm. The circumstances were materially unlike the unexpected weapon situations in R v Powell and English and Gamble [1989] NI 268. Many attackers were armed, and even if the appellant had not known of the weapons on entering, he was close to the attack when they were used and did not desist. The same verdict would have followed even if the judge had used the fuller direction sought on appeal.

• Court of Appeal (Criminal Division). By [2003] EWCA Crim 484, dismissed the appeal against the murder conviction.
• Crown Court at Preston. On 5 December 1997, convicted the appellant of murder and conspiracy to cause grievous bodily harm. He received life imprisonment for murder and a concurrent ten-year sentence for conspiracy.