Webb, R v

A secondary party to a joint burglary is liable for murder only if the killing fell within the scope of the joint enterprise. Scope is assessed subjectively: the secondary party must have foreseen the possibility of an act of the type committed by the principal. The party need not foresee the precise weapon or mechanism used.

Where a trial direction omitted an issue which should have been left to the jury, the conviction nevertheless remains safe if a properly directed jury would inevitably have convicted on the evidence.

The appellant had been convicted of murder arising from a burglary in which an elderly householder died from asphyxia after a handkerchief was forced into his mouth. The prosecution case permitted the jury to find that the appellant either entered the house, remained outside, or participated from elsewhere as organiser of the joint burglary.

The trial judge directed that a secondary party could be guilty of murder if he realised that really serious bodily harm might intentionally be inflicted during the burglary. The direction did not separately address the act of silencing the victim by a gag. Following a reference by the Criminal Cases Review Commission, the appellant appealed against conviction. The central issue was whether that omission made the conviction unsafe.

1. Appeal dismissed. The trial direction did not comply with Powell and English [1997] 1 AC 1, because the jury should have considered whether the appellant foresaw that a burglar might intentionally take steps to silence the victim’s voice.

2. The scope of a joint enterprise depends on a subjective question: whether the secondary party foresaw the possibility that the principal would do the act which caused death. It is enough that the secondary party foresaw an act of the relevant type. He need not have contemplated the precise weapon or mechanism used.

3. On the facts, a correct direction would have required the jury to be sure both that the appellant foresaw a screwdriver or knife being used intentionally to cause at least really serious bodily harm and that he foresaw a burglar intentionally taking steps to silence the victim. Greatrex [1999] 1 Cr App R 126 was materially different: its fatal use of an iron bar was an issue the jury could rationally resolve either way, whereas the fatal mechanism here was a handkerchief.

4. The omission did not render the conviction unsafe. The jury had necessarily found that the appellant foresaw intentional serious violence with the weapons carried, and his admissions made a conviction inevitable had the additional issue been left to them.

• Court of Appeal (Criminal Division): Following a reference by the Criminal Cases Review Commission, dismissed the appeal against the 1996 murder conviction. The court held that the joint-enterprise direction was defective but that the conviction was safe.
• Trial court (not identified): On 27 March 1996, convicted the appellant of murder and conspiracy to burgle. No citation is stated in the judgment.