R v Rahman and others (Appellants) (On Appeal from the Court of Appeal (Criminal Division))

A secondary party to a joint enterprise involving unlawful violence may be guilty of murder where he foresaw that another participant might kill with intent to kill or cause really serious injury. Liability depends on foresight of the type of act which the principal might commit, rather than foresight of the principal’s precise intention.

An intention to kill which was unknown to the secondary party does not, by itself, take the killing outside the enterprise or make it fundamentally different from the acts foreseen. A killing may fall outside the enterprise where the principal’s act, including the unforeseen use of a materially more lethal weapon, completely departs from what the secondary party contemplated. That question is fact-sensitive and ordinarily for the jury.

The four appellants were convicted of murder after participating in a group attack during which the victim was fatally stabbed. The prosecution did not allege that any appellant inflicted the fatal wounds. Their liability rested on participation as secondary parties in a joint enterprise to cause serious bodily harm.

The Court of Appeal (Criminal Division) dismissed their appeals in [2007] EWCA Crim 342, also reported at [2007] 1 WLR 2191. The appellants appealed to the House of Lords.

The central issue was whether a principal’s intention to kill, when unknown to and unforeseen by a secondary party, was relevant either to the scope of the common purpose or to whether the principal’s act was fundamentally different from the acts which the secondary party foresaw.

1. The appeals were dismissed unanimously. Lord Bingham delivered the leading opinion. Lord Scott agreed fully with his reasons, and Lords Rodger, Brown and Neuberger agreed that the principal’s unknown intention to kill did not relieve the appellants of liability.

2. Per Lord Bingham, the wider principle of accessory liability makes foresight the touchstone. A participant is liable where he joins a criminal enterprise while foreseeing that another participant might kill with intent to kill or cause really serious injury. The relevant subject of foresight is what the principal might do, not the undisclosed intention with which the principal might do it. Requiring a jury to determine what an accessory foresaw about another participant’s precise intention would add speculation and complexity.

3. The distinction between an intention to kill and an intention to cause really serious injury is irrelevant to the principal’s guilt of murder. Lord Bingham, Lords Rodger, Brown and Neuberger reasoned that it would undermine the same principle if an accessory who foresaw a murderous act could escape liability merely because the principal formed an unforeseen intention to kill.

4. The qualification established in R v English remained applicable. Per Lord Bingham, its significance lies in the defendant’s subjective foresight and the nature of the principal’s act. A radical departure may occur where the principal uses a weapon or acts in a way which the secondary party did not foresee. The greater the difference between the act committed and the contemplated enterprise, the more readily a jury may infer absence of foresight.

5. Lord Brown formulated the qualification as applying where the principal suddenly uses an unknown weapon which is more lethal than any contemplated weapon and, for that reason, the act is fundamentally different from anything foreseen. Lord Neuberger endorsed that formulation. Lord Rodger likewise treated a change to a more deadly weapon as capable of making the act a complete departure. Lord Scott considered the instrument less important than whether the fatal act remained within the enterprise, but concurred in Lord Brown’s formulation.

6. The trial judge had adequately directed the jury. “Fundamentally different” was not a term of art requiring further definition. There is no prescriptive formula for jury directions; once the governing principle is stated, the trial judge should use language suited to the particular case. Both parts of the certified question were answered in the negative, subject to Lord Brown’s view that the first part was misconceived.

1. House of Lords: The appellants’ appeals were dismissed unanimously in [2008] UKHL 45. The House held that the principal’s unknown and unforeseen intention to kill was not itself relevant to whether the killing fell within the enterprise or was fundamentally different from the acts foreseen.
2. Court of Appeal (Criminal Division): The court dismissed the appeals against conviction in [2007] EWCA Crim 342, also reported at [2007] 1 WLR 2191.
3. Crown Court at Leeds: The four appellants were convicted of murder as secondary parties to the joint enterprise which culminated in the victim’s death.