Daley, R v

A companion may be convicted of murder on the then applicable doctrine of parasitic accessory liability where he knowingly joins an unlawful venture involving a loaded firearm, intentionally assists or encourages its possession, and foresees that the gunman may use it to kill. Mere knowledge of the weapon and voluntary presence are insufficient.

No additional common purpose beyond the unlawful possession of the weapon is required. The doctrine may apply where murder flows from that possession. Directions must be read as a whole; an immaterial factual error will not make a conviction unsafe.

The appellant was convicted at the Central Criminal Court of the murder of Umar Tufail, who was shot while sitting in his car. The prosecution alleged that the appellant and his co-accused were jointly involved in the shooting. The appellant denied knowing that the co-accused had a firearm.

The trial judge left the jury three routes to murder, including a route based on parasitic accessory liability arising from assistance or encouragement of the unlawful possession of a loaded firearm. The appellant challenged the adequacy of that direction, alleged a factual misdirection, and sought to preserve an argument concerning the required degree of foresight. He also sought leave to appeal his minimum term of 22 years.

1. Appeal against conviction dismissed. The trial judge was entitled to leave the third route to verdict. That route required the jury to find that the appellant knew that the gunman had an illegal loaded firearm, remained with him, assisted or encouraged his possession of it, and foresaw that it might be used to murder. The requirements were cumulative. The directions made clear that passive participation, consisting only of knowledge and voluntary presence, could not found guilt.

2. The direction accorded with the formulation in Smith (Dean Martin) [2009] 1 Cr App R 36 and the relevant definitions in Gnango [2012] 1 AC 827. The court rejected the proposed rule that possession is exceptional, so that parasitic accessory liability requires a criminal purpose beyond the joint possession of the weapon. A joint unlawful venture to possess a loaded firearm can suffice where the participant foresees that it may be used to murder and the murder flows from that venture.

3. The jury question did not reveal confusion. The judge correctly directed attention to events while the two men were in the car with the firearm. Any possible factual error in one part of the summing-up was neither significant nor material when the summing-up was read as a whole. It did not undermine the safety of the conviction.

4. The proposed requirement that an encourager must know that use of a fatal weapon is a real probability was not arguable on the law then applicable. The court also refused leave to appeal sentence. The verdict did not clearly show that the jury had adopted a less culpable route, and the evidence supported the judge's assessment of culpability and the minimum term.

• Court of Appeal (Criminal Division) — in [2015] EWCA Crim 1515, dismissed the appeal against conviction and refused leave to appeal against sentence.
• Central Criminal Court — on 16 April 2013, the appellant was unanimously convicted of murder; on 17 April 2013, he received life imprisonment with a minimum term of 22 years.