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Court of Appeal

Three men called at the house of a man later described as a small-time drug dealer. As soon as he opened the door, he was shot dead by a single shot. One of the men was not apprehended, but the other two were charged with murder. There was a cut-throat defence. Powell claimed that he had called on the dealer merely to purchase cannabis. Daniels claimed that he knew nothing about the existence of a gun before it was used. Powell gave evidence in support of his claim; Daniels did not. Both were convicted. On appeal, in R v Powell and Daniels [1996] I Cr App R 14, the question considered by the court was that which it eventually certified as a point of law of general public importance, under s 33(2) of the Criminal Appeal Act 1968. To found a conviction of murder, the intent which must be proved is an intent to kill or to commit grievous bodily harm. In the case of a secondary party to a homicide, must he have that intent himself or does it suffice that he has realised that the primary party might kill with that intent? At the trial, there were conflicting submissions before the court as to which of these propositions was correct. There are two different lines of authority on this question and the issue at the trial was as to which of them the recorder should accept as the basis of the direction he would be giving to the jury upon the mens rea which the prosecution had to prove in this case, in relation to the secondary party to the crime (that is, the party who, in the opinion of the jury, did not fire the gun). The recorder directed the jury that, where there is a joint enterprise, all are responsible for what has been (even tacitly) agreed and even for the unusual consequences of carrying out the enterprise, so that any claim to an absence of responsibility must be based on the fact that what was done went beyond the joint enterprise and was thus unauthorised by it. He added that 'if B or C realised, without agreeing to such conduct being used, that A may kill or intentionally inflict serious injury, and they none-the-Iess continue to participate with A in the venture, that will amount to a sufficient mental element ... '. It was accepted on appeal that this direction was based on the line of authority stemming from Chan Wing Siu v R [1985] AC 169 and that, on the facts, the present case could not be distinguished from that case. The advice given by the Board in Chan Wing Siu was based on the proposition that the secondary party is liable for the acts of the primary offender when he foresees, even though he does not necessarily agree with, them. 'That there is such a principle is not in doubt', added the Board. The House of Lords would appear to have accepted that proposition in Maxwell v DPP for Northern Ireland (1978) 68 Cr App R 128. One advantage which flows from the acceptance of this proposition is that where, as in R v Hyde [1991] I QB 134, an attack is made on a victim by