Knaggs v R.

A secondary party to murder may be liable where he participates in a common enterprise, knows that an associate has an obviously lethal weapon, and foresees that the associate may use it to kill or cause really serious injury. Liability does not depend on foresight of the associate’s precise intention. A participant is not liable for conduct which falls outside the agreed enterprise, but the enterprise may be inferred from the parties’ conduct and may continue through a developing confrontation.

A defect in a summing up does not make a conviction unsafe where a properly directed jury would inevitably have found the continuing common enterprise and the necessary foresight.

The appellant was convicted of murder at the Central Criminal Court and received detention for life with an 18-year minimum term, less time spent on remand. The prosecution case was that, although the co-defendant probably inflicted the fatal knife wounds, the appellant was guilty as a secondary party in a joint enterprise.

On appeal, the appellant challenged the summing up on joint enterprise, the presentation of his defence and the refusal to admit the deceased’s alleged bad character. He also challenged the minimum term. The central issue was whether the evidence permitted a finding that the stabbing occurred in the course of a common enterprise which the appellant had joined with the necessary foresight.

1. Conviction appeal dismissed. The judge should have identified the forensic possibility that the co-defendant had stabbed spontaneously and outside any relevant common enterprise. That possibility was not the appellant’s primary case, but it had become his realistic forensic defence after the evidence undermined his prepared statements.

2. The omission did not render the conviction unsafe. The evidence which the jury had necessarily accepted established a continuing common enterprise from the earlier bus stop to the stabbing. The appellant knew that his associate had a knife, had asked for it during the confrontation, and foresaw that it might be used lethally. A further, immediate agreement at the scene was unnecessary. Even if the associate had temporarily tried to restrain the appellant, the jury would inevitably have found that the subsequent fight remained closely connected to the armed common enterprise.

3. The directions correctly focused on whether the secondary party knew of the knife and realised that it might be used to kill or cause really serious injury. Following R v Rahman [2008] UKHL 45, liability turned on foresight of what the principal might do, rather than foresight of the principal’s intention. The direction requiring an intention shared with the knifeman was, if anything, more favourable to the appellant than the law required.

4. The judge had sufficiently put the appellant’s case by referring to his prepared statements and to his denial of knowledge of the knife. No additional direction concerning a mixed statement was required because the statement was not materially mixed. The proposed third-party bad-character evidence lacked substantial probative value under Criminal Justice Act 2003, section 100.

5. Sentence appeal allowed. Although the appellant’s participation in an enterprise involving a lethal knife aggravated the offence, the co-defendant retained and used the knife. The appellant’s intention that the co-defendant should kill was not surely established. The minimum term was reduced from 18 years to 16 years.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1363, the court dismissed the appeal against conviction but allowed the appeal against sentence, reducing the minimum term to 16 years.
• Central Criminal Court: HH Judge Christopher Moss QC convicted the appellant of murder and imposed detention for life with an 18-year minimum term, less 367 days on remand.