Common Purpose - When The Outcome Is Death

When The Outcome Is Death

The simplest form of joint enterprise to murder is two or more planning to cause death and doing so. If all the parties participated in carrying out the plan, all are liable regardless of who actually inflicted the fatal injury. But when there is no plan to murder and one party kills while carrying out a plan to do something else, such as a planned robbery in which the participants hope to be able to get what they want without killing anyone, but one of them does in fact kill, the other participants may still be guilty of murder or manslaughter provided that they had the necessary mens rea. In R v Lovesey and Peterson (1969) 53 Cr.App. R. 461 a gang was executing a plan to overpower a jeweller and steal his more valuable stock. After the robbery, the jeweller was found dead. All were properly convicted because the death was the outcome of the agreed use of violence. That this accidentally caused the jeweller's death did not prevent liability. The usual case will involve plans to commit criminal damage, burglary, rape or some other crime and there will be no compelling inference that there must also have been a plan to kill. For the participants to be convicted of murder, the question becomes one of foresight that one of them might kill. In R v Powell (Anthony) and English (1999) 1 AC 1 the Lords said that the other participants must have realised that, in the course of the joint enterprise, the primary party might kill with intent to do so or with intent to cause grievous bodily harm, i.e. with the intent necessary for murder. Thus the Powell and English doctrine extends joint enterprise liability from the paradigm case of a plan to murder to the case of a plan to commit another offence in the course of which the possibility of a murder is foreseen (see R v Bryce (2004)). In Attorney-General's Reference (No. 3 of 2004) (2005) EWCA Crim 1882 the defendant, H, was charged with manslaughter. H had sent K and C to terrify R, knowing both that K and C would have a loaded firearm with them, and that this firearm might be fired near R to increase his fear. The Court of Appeal held that H's liability depended on the scope of the joint enterprise. On the assumed facts, there was no evidence that H foresaw that the gun would be fired and R might be injured. Rather, K's intentional act of firing the gun so as to kill or cause R grievous bodily harm was fundamentally different from the acts contemplated by H. The outcome would have been different if there had been a common design to cause some harm to R. In such a case, H would be liable for manslaughter because, albeit to frighten, he had authorised the firing of the gun, i.e. he would have realised that K might intentionally cause some harm when he fired the gun. But on the assumed facts, H did not foresee the possibility of any harm to R let alone intentional harm so was properly acquitted.

In R v Gnango, the Supreme Court held that D2 is guilty of the offence of murdering V if (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if (2) D1 mistakenly kills V in the course of the fight.