Rahman & Ors v R.

In a joint-enterprise murder case, a participating secondary party who intends, or realises that another may, kill with intent to kill is guilty of murder without recourse to the fundamentally different qualification. Where the secondary party instead intends or foresees really serious harm, liability depends on whether the fatal act was fundamentally different from the acts that party foresaw or intended.

The comparison is objective, although the secondary party’s foresight is subjective. The principal offender’s possible intention to kill is not a separate factor requiring a jury direction. Whether a stabbing was fundamentally different from the violence contemplated depends on the whole of the evidence.

Four appellants were convicted of murdering Tyrone Clark at the Crown Court at Leeds on 4 March 2005. Clark died after a group attack in which blunt weapons, fists and kicks were used and an unidentified attacker inflicted fatal knife wounds.

The prosecution alleged that each appellant participated in the attack. Each denied either participation at the fatal scene or knowledge or foresight of a knife. The principal issue was whether the trial judge correctly directed the jury on joint enterprise and the qualification where the fatal act was fundamentally different from that foreseen by a secondary party.

The court also considered individual challenges concerning evidential sufficiency, the reliability of a witness, alleged concussion, withdrawal, participation and a submission of no case to answer.

1. The appeals against conviction were dismissed. The trial judge did not misdirect the jury on the fundamentally different qualification. Although parts of the route to verdict were more favourable to the appellants than the law required, the directions did not render the convictions unsafe.
2. Applying R v Powell and another and R v English [1999] AC 1, a participating defendant who intended that the victim be killed, or realised that an attacker might kill with intent to kill, was guilty of murder. Such a defendant could not rely on the fundamentally different qualification. That qualification remained available to a defendant who intended or foresaw really serious harm in the limited categories identified by the court.
3. For those limited categories, the jury should identify the fatal act, identify the act or acts the defendant realised an attacker might do to cause really serious harm, and compare them. The comparison is objective. The question is whether the latter acts were fundamentally different in nature from the fatal act. The defendant’s foresight remains a subjective question.
4. The principal offender’s possible intention to kill was not a distinct circumstance which the jury had to take into account when deciding whether the fatal act was fundamentally different. The relevant comparison was between acts. Requiring the proposed direction would improperly expand the qualification and relax accessorial liability.
5. On the evidence, the actual injuries apart from the stabbing did not conclusively show that the stabbing was fundamentally different from the contemplated attack. The ferocity of the group violence, the weapons carried and the events before the attack entitled the jury to determine that issue. The combined circumstances also provided a sufficient evidential basis on which it could infer that Akram and Amin anticipated the possible use of a knife.
6. The remaining complaints disclosed no error. The assessment of Lovick’s reliability was for the jury; the judge adequately left the evidence concerning concussion and participation; withdrawal was not part of Akram’s or Rahman’s case; and Amin’s case properly remained for the jury.

The court deferred the outstanding applications by Rahman and Akram for leave to appeal sentence.

• Court of Appeal (Criminal Division): dismissed all grounds of appeal against the murder convictions in [2007] EWCA Crim 342.
• Crown Court at Leeds: convicted each appellant of murder on 4 March 2005. No citation for that decision was stated.