A & Ors (Joint Enterprise) v R.

In third-type joint-enterprise murder liability, a secondary participant is guilty only if someone commits murder and the participant foresaw that person might act with intent to kill or cause grievous bodily harm. Foresight that serious harm might be caused, without foresight that it might be caused intentionally, does not suffice. R v Rahman [2008] UKHL 45 concerns whether an unforeseen intention to kill amounts to a fundamental departure where intentional grievous bodily harm was already foreseen. It does not remove the need to prove foresight of murderous intent. A jury direction must also require proof that a principal, although not necessarily identified, committed murder.

The four appellants appealed against jury convictions for murder following a planned group attack on the deceased in his home. Three appellants had participated in a beating and the fourth had organised it. No weapon was used, and it was impossible to identify each assailant’s individual acts.

The Crown relied on joint enterprise. The trial judge gave careful written directions and a route to verdicts. Its joint-enterprise murder route allowed conviction where a participant intended some harm, foresaw a real risk that another might cause really serious harm, and that harm was caused.

The appeals raised whether that direction had to require foresight that the serious harm might be inflicted intentionally, and whether the jury first had to be sure that an unidentified participant had committed murder.

1. The appeals were allowed. The murder convictions were unsafe and were quashed. The court invited written submissions on whether there should be a retrial.

2. The case concerned the third form of joint enterprise: participants commit an agreed crime, and one commits a further crime which another participant foresaw might occur. This is secondary liability. A participant may be liable for the further crime without wishing or intending it, but only within the limits of the principle governing that liability.

3. For murder, the secondary participant must foresee that the principal might, not would, kill with intent to kill or intentionally cause grievous bodily harm. Foresight that the principal might cause grievous bodily harm without an intention to do so does not amount to foresight of murder. It may found liability for manslaughter, but not murder.

4. R v Rahman [2008] UKHL 45 did not alter that rule. Its statements that foresight of the principal’s act, rather than intention, was relevant were directed to the separate issue of fundamental departure from the common purpose. An unforeseen intention to kill does not itself constitute a fundamental departure where intentional grievous bodily harm was foreseen.

5. The route to verdicts was therefore defective because it omitted the requirement that another participant might intentionally cause really serious bodily harm. It was also defective because it did not require the jury to be sure that someone, identified or not, had committed murder before convicting another participant on a joint-enterprise basis. Both matters were live on the facts of an unarmed beating, where a fatal result did not necessarily establish murderous intent.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 1622, the court allowed the appeals, quashed the murder convictions, and invited submissions on a possible retrial.
• Trial court: A jury convicted all four appellants of murder after a group attack. The trial court is not otherwise identified in the judgment.