Rahman & Ors, R v

The House of Lords considered the scope of accessory liability in joint enterprise murder cases and the proper jury direction where the primary offender's conduct may have involved an undisclosed intention to kill. The court reaffirmed that the test for secondary liability is foresight of what the primary offender might do, not the primary offender's undisclosed intention. The judge was therefore entitled to direct the jury to consider whether the defendant had foreseen that a co-attacker might produce and use a knife or other lethal weapon and that such use might cause death or really serious injury. The court accepted the limited English qualification that an unforeseeable and fundamentally different act or the unforeseen use of a materially different and more lethal weapon may take the killing outside the scope of the joint enterprise, but held that a primary offender's concealed intention to kill, by itself, is not of legal significance to the accessory's liability.

The appellants were convicted at Leeds Crown Court of murder as secondary parties to a joint attack on 22 April 2004 which culminated in the death of Tyrone Clarke. The fatal injuries were stab wounds; there was no evidence that any appellant had inflicted the fatal wounds. They appealed to the Court of Appeal, which dismissed their appeals and certified a point of law on whether a principal's intention to kill, unknown to and unforeseen by a secondary party, is relevant to (i) whether the killing was within the scope of the common purpose and (ii) whether the principal's act was fundamentally different from what the secondary party foresaw.

The appellants sought to rely on medical findings and the nature of the fatal wound to argue that the killer's actual intention to kill took his act outside the scope of the common design and therefore should have led to acquittal of the accessories. The central legal issues framed were: (i) whether accessory liability depends on foresight of the primary offender's acts or also on foresight of the primary offender's uncommunicated intention; and (ii) the role of the "fundamentally different" or "departure" test (as in Anderson/Morris and English).

The House held that the relevant test is one of foresight of acts (what the principal might do), consistent with the rule in Cunningham that mens rea for murder can be intent to kill or intent to cause really serious injury. Practical and principled reasons supported focusing on foresight of acts rather than speculation about another's inner intention. The court reiterated the English qualification that an unforeseeable production and use of a materially different weapon or an act of a fundamentally different character may exonerate secondary parties, but on the facts the appellants had participated in an attack where knives were known or could be foreseen to be used and the jury were properly directed. The appeals were dismissed.

Appeals dismissed. The House held that for accessory liability in a joint enterprise the touchstone is the secondary party's foresight of what the principal might do (the acts), not the principal's undisclosed intention to kill. The limited English qualification remains: an unforeseeable act or the unforeseen use of a materially different, more lethal weapon may take the killing outside the scope of the enterprise, but the mere fact that the principal actually intended to kill does not, by itself, relieve an accessory who foresaw the relevant act.

Convictions at Leeds Crown Court (Wakerley J and jury) on 4 March 2005. Appeals to the Court of Appeal (Criminal Division) dismissed on 23 February 2007: [2007] EWCA Crim 342. Appeals to the House of Lords dismissed on 2 July 2008: [2008] UKHL 45.