Causation – Foreseeability – Joint enterprise – Jury directions

R v (1) Reece Mendez (2) Seaon Thompson: CA (Crim Div) (Lord Justice Toulson, Mrs Justice Cox DBE, Judge Barker QC (Common Serjeant of London)): 22 March 2010

The appellants (M and T) appealed against their convictions for murder.

M and T, aged 17 and 15 respectively at the time of the murder, had been involved in a spontaneous group attack on the deceased after an incident at a party. The deceased suffered numerous minor injuries from blows from feet, pieces of wood, metal bars and a knife, and a fatal injury by a stab wound to his heart. M and T were among seven defendants charged with murder or alternatively violent disorder. The prosecution alleged that T had been the stabber, and various partygoers gave evidence that they had seen him with a knife. The prosecution did not suggest that M knew that anyone in the group had a knife until after the fatal stabbing had occurred.

The judge indicated that he would leave it open to the jury to convict T as a secondary offender if they were not sure that he had inflicted the fatal injury. In his summing-up he directed the jury that if they were sure that a defendant had joined the attack intending to cause really serious harm, or realising that others might do so, he was liable for murder unless another attacker had produced a more lethal weapon of which the defendant was unaware and which was more lethal than any contemplated by the defendant so that the act of using that weapon was regarded as fundamentally different from anything the defendant foresaw. Both M and T were convicted of murder as secondary offenders. They argued that the judge had misdirected the jury on joint enterprise liability because his direction did not properly reflect the distinction intended to be conveyed by expressions such as ‘fundamentally different’.

Held: (1) In cases where the common purpose was not to kill but to cause serious harm, a defendant was not liable for the murder of the victim if the direct cause of death was a deliberate act by the principal actor that was of a kind unforeseen by the defendant and likely to be altogether more life-threatening than acts of the kind intended or foreseen by the defendant, R v Powell (Anthony Glassford) [1999] 1 AC 1 HL and R v Rahman (Islamur) [2008] UKHL 45, [2009] 1 AC 129 followed. ‘Deliberate act’ referred to the quality of the act rather than to any consideration of the principal actor’s intention as to the consequences. It would not be just that a defendant should be found guilty of a murder by the principal actor, if the principal actor’s act was of a different kind from, and much more dangerous than, the sort of acts that the defendant intended or foresaw as part of the joint enterprise. In a case of spontaneous or semi-spontaneous group violence, typically fuelled by alcohol, it was highly unlikely that the participants would have thought carefully about the exact level of violence and associated injury that they intended to cause or foresaw might be caused. In most such cases a jury could only be expected to form a broad brush judgment about the sort of level of violence and associated risk of injury that they could safely conclude that the defendants must have intended or foreseen. They then had to consider as a matter of common sense whether the principal actor’s unforeseen act was of a nature likely to be altogether more life-threatening than acts of the nature that the defendant foresaw or intended. It was a question of degree. If the jury were in real doubt then they should acquit. The judge should be able to give a short and simple direction on this issue. It did not require expert evidence or minute calibration. No doubt he would point out the factors relied on by the defence and prosecution for arguing that the principal actor’s act should, or should not, be considered ‘in a different league’ from what the defendant intended or foresaw, Rahman followed. Those were matters of fact for the jury to weigh.

(2) The judge had failed to direct the jury on the issue of joint enterprise in a way that was sufficiently clear and balanced. The murder convictions were quashed. For M a verdict of guilty for violent disorder was substituted. The appropriate order in respect of T would be considered after further submissions.

Appeals allowed.

A Waterman QC for the first appellant; DT Fish QC for the second appellant; FP Watson QC for the Crown.