Attorney General's Reference No 3 of 2004

The scope of a joint enterprise depends on a subjective inquiry: whether the secondary party foresaw as a possibility the act which caused death. A difference only in the principal’s state of mind does not necessarily remove an act from the enterprise where the same kind of violence was foreseen. However, an act which is fundamentally different in character, including in the manner in which a weapon is used, lies outside its scope. The issue is ordinarily for the jury, but the judge must rule accordingly where no jury could properly find the fatal act within the enterprise. Under section 36(1) of the Criminal Justice Act 1972, the court may answer only a point of law which arose in the case.

H was tried with two co-defendants for the killing of R. The prosecution alleged that H recruited them and that K shot R. H was acquitted of murder but convicted of manslaughter. The earlier Court of Appeal quashed the manslaughter conviction because the jury direction did not focus on the use of a loaded firearm, and ordered a retrial.

At a preparatory hearing on the retrial, the judge proceeded on agreed assumed facts. H had sent K and C to frighten R, knew they would have a loaded firearm and that it might be discharged near R, but neither intended nor foresaw physical injury or death. The judge ruled that those facts could not found manslaughter. After the prosecution offered no evidence and H was acquitted, the Attorney General referred two questions concerning joint enterprise manslaughter and the permissible basis of the retrial case.

1. The court held that the preparatory judge’s conclusion was correct on the assumed facts. It declined to give the first question a categorical answer because the question concealed necessary factual distinctions.

2. Following Powell and English [1999] 1 AC 1, the relevant inquiry was subjective. The secondary party must have foreseen as a possibility the act which caused death. The subject matter of the enterprise is an objective act, rather than the principal’s state of mind alone. A variation in intent therefore does not inevitably take an act outside the enterprise if the participants foresaw the same type of violence.

3. Nevertheless, the fatal act may be outside the enterprise where it is fundamentally different from the act contemplated by the secondary party. That may arise from an unforeseen weapon or from the unforeseen manner in which an anticipated weapon is used. The issue is normally one for the jury’s common sense. If no jury could properly find the fatal act within the enterprise, the judge must rule that the secondary party is not liable for the killing.

4. Here H contemplated the deliberate discharge of a firearm near R to frighten him, but did not foresee physical injury or death. K’s deliberate discharge of the firearm at R was fundamentally different in character from that contemplated act. The killing was consequently outside the scope of H’s joint enterprise, and H could not be guilty of manslaughter on the assumed facts.

5. Under section 36(1) of the Criminal Justice Act 1972, the court had no jurisdiction to answer the second question. The proposed point about presenting a lesser-offence case at the retrial had never arisen before the preparatory judge.

• Court of Appeal (Criminal Division) — On the Attorney General’s reference, the court upheld the preparatory judge’s conclusion on the assumed facts and held that it lacked jurisdiction to answer the second question: [2005] EWCA Crim 1882.

• Crown Court — At a preparatory hearing before Sir Stephen Mitchell, sitting as a Deputy High Court Judge, the judge ruled that the assumed facts could not establish manslaughter. The prosecution subsequently offered no evidence and H was acquitted.

• Court of Appeal (Criminal Division) — H’s original manslaughter conviction was quashed because the jury direction did not focus on the use of a loaded firearm. A retrial was ordered. The citation is not stated in the judgment.

• Crown Court — H was acquitted of murder but convicted of manslaughter at the original trial.