Carpenter, R v

A secondary party who joins an enterprise involving unlawful violence and foresees that a knife may be used to cause some injury may be guilty of manslaughter, even though the principal uses the knife with an intention to kill or cause really serious harm. The secondary party’s lack of foresight of that murderous intention prevents liability for murder, but does not negate the enterprise to cause harm.

The contrary rule, excluding manslaughter where the principal’s use of a knife was outside the contemplated venture, concerns an unforeseen use of the weapon. It does not apply where use of the knife itself was foreseen and the difference lies only in the principal’s graver intention.

The appellant was tried in the Crown Court at Worcester with her husband after their son fatally stabbed Shane Price during a pre-arranged fight and wounded Shane’s mother. The appellant was acquitted of murder but convicted of manslaughter and of wounding with intent. She received 11 years’ imprisonment for manslaughter, with a concurrent six-year sentence for wounding.

Her conviction appeal challenged the judge’s joint-enterprise directions and the availability of manslaughter as an alternative verdict. She contended that, because the principal acted with murderous intent, she was guilty of murder or nothing. She also renewed an application for leave to appeal against sentence.

1. The appeal against conviction was dismissed. The established authorities permitted a manslaughter verdict. A secondary party need not share the principal’s mens rea. The subject of a joint enterprise is the objective violence which is contemplated, not a common state of mind. Thus a participant who envisages only some harm may be guilty of manslaughter where another participant commits the contemplated violence with an intention to kill or cause really serious harm.

2. R v Roberts and Others [2001] EWCA Crim 1594 and R v Yemoh and Others [2009] EWCA Crim 930 established that the principal’s greater mens rea does not, without more, take the killing outside the common design. The limiting question is whether the principal’s act was fundamentally different from the violence contemplated or foreseen by the secondary party.

3. R v Mendez and Thompson [2010] EWCA Crim 516 concerned an assertedly unforeseeable use of a knife. Its discussion of the unavailability of manslaughter had to be read in that context. It did not address the present situation, where use of a knife to cause some harm was foreseen but its murderous use was not. If any wider statement were extracted from it, it would be obiter and could not displace the Roberts line of authority.

4. The route to verdict correctly required the jury to be sure that the appellant knew the principal had a knife and intended, or might intend, to use it to cause some injury, and that she nevertheless participated by restraining the victim’s mother. A separate route to verdict for the appellant would have been preferable, but the substitutions required were clear and created no material error or doubt about the safety of the conviction.

5. The renewed application for leave to appeal against sentence was refused. The 11-year sentence was severe but justified by the appellant’s important role in the fatal violence and the limited mitigation.

• Court of Appeal (Criminal Division): dismissed the appeal against the manslaughter conviction and refused the renewed application for leave to appeal against sentence.
• Crown Court at Worcester: the appellant was acquitted of murder, convicted of manslaughter and wounding with intent, and sentenced to 11 years’ imprisonment for manslaughter with a concurrent six-year sentence for wounding.