LORDS DECISIONSLORDS DECISIONS >>LORDSLORD GOFF OF CHIEVELEYLORD JAUNCEY OF TULLICHETTLELORD MUSTILLLORD STEYNLORD HUTTONLORDS OF APPEAL FOR JUDGMENT IN THE CAUSELORD GOFF OF CHIEVELEYLORDS,LORD HUTTON. AND FOR THE REASONS HE HAS GIVEN I TOO WOULD ALSO MAKE THE ORDERS HE PROPOSES.LORD JAUNCEY OF TULLICHETTLELORDS,LORD HUTTON AND FOR THE REASONS WHICH HE GIVES I WOULD ALSO MAKE THE ORDERS HE PROPOSES.LORD MUSTILLLORDS,JUSTICE COULD IT BE RIGHT TO SUSTAIN THE CONVICTION ONCE IT WAS VERY PROPERLY CONCEDED ON BEHALF OF THE RESPONDENT THAT THE APPELLANT MIGHT HAVE BEEN UNAWARE THAT THE KNIFE ULTIMATELY USED BY WEDALE WAS EVEN IN THE LATTER'S POSSESSION. SO MUCH IS TO MY MIND CLEAR. MUCH LESS CLEAR IS THE PROPER ANALYSIS OF THE LAW IN A SITUATION WHERE THE SECONDARY PARTY FORESEES THAT THE PRINCIPAL OFFENDER MAY COMMIT A MORE SERIOUS CRIME THAN THE ONE WHICH THE TWO SET OUT TO COMMIT, AND NEVERTHELESS DECIDES TO GO AHEAD WITH THE PLAN.LORDS, I HAD FOR MY PART PREFERRED THE SECOND OF THESE ALTERNATIVES; FOR I DID NOT FAVOUR THE ABANDONMENT OF A DOCTRINE WHICH HAS FOR YEARS WORKED ADEQUATELY IN PRACTICE AND ITS REPLACEMENT BY SOMETHING WHICH I CONCEIVED TO BE NEW, UNLESS THIS STEP WAS STRICTLY NECESSARY; AND I DID NOT THINK IT NECESSARY, SINCE THE EXISTING PRINCIPLES COULD BE RETAINED, IN COMBINATION (FOR THE EXCEPTIONAL CASES) WITH THE CONCEPT OF WRONGFUL PARTICIPATION IN FACE OF A KNOWN RISK. THIS WAS INDEED WHAT I UNDERSTOOD THE LAW TO BE, AFTER CHAN WING-SIU V. THE QUEEN [1985] 1 A.C. 168; HUI CHI-MING V. THE QUEEN [1992] 1 A.C. 34 AND MCAULIFFE V. THE QUEEN (1995) 69 A.L.J.R. 621.LORDS, GIVEN THE IMPORTANCE OF THE TOPIC I HAD ORIGINALLY PREPARED THE DRAFT OF A SPEECH CONTAINING A DETAILED HISTORICAL ANALYSIS AND A STATEMENT OF THE REASONS WHICH LED ME TO PREFER THE SECOND VERSION OF THE LAW. RECOGNISING, HOWEVER, THAT THE REMAINDER OF YOUR LORDSHIPS SEE THE MATTER DIFFERENTLY I PREFER THAT THE DRAFT SHOULD BE WITHDRAWN. THERE ARE SOME INSTANCES WHERE THE DELIVERY OF A MINORITY OPINION IS A DUTY, THE PERFORMANCE OF WHICH IS NOT SIMPLY A MATTER OF RECORD, BUT ALSO MAKES AN IMPORTANT CONTRIBUTION TO THE FUTURE UNDERSTANDING AND DEVELOPMENT OF THE LAW. THIS IS NOT SUCH A CASE. DOCTRINALLY THE DIFFERENCES MAY BE CONSIDERABLE, BUT THEIR PRACTICAL SIGNIFICANCE IS LIKELY TO BE SMALL, OR PERHAPS EVEN NON-EXISTENT. WHAT THE TRIAL JUDGE NEEDS IS A CLEAR AND COMPREHENSIBLE STATEMENT OF A WORKABLE PRINCIPLE, WHICH HE OR SHE WILL FIND IN THE SPEECH OF MY NOBLE AND LEARNED FRIEND, LORD HUTTON; AND THE JUDGE'S TASK WILL NOT BE HELPED IN ANY WAY BY A LONG EXPOSITION OF A THEORY WHICH MIGHT HAVE PREVAILED, BUT IN THE EVENT HAS NOT. THIS BEING SO I AM ENTIRELY WILLING TO CONCUR IN THE REASONING TO WHICH THE REMAINDER OF YOUR LORDSHIPS SUBSCRIBE. THIS WILL, I SUSPECT, REQUIRE SOME JUDGES TO LOOK AGAIN AT THE TERMS IN WHICH THEY HAVE CUSTOMARILY DIRECTED JURIES, BUT THE TASK SHOULD NOT BE AT ALL DIFFICULT TO PERFORM.LORD STEYN, IN THE LATTER PART OF HIS SPEECH. ONCE AGAIN, AN APPEAL TO THIS HOUSE HAS SHOWN HOW BADLY OUR COUNTRY NEEDS A NEW LAW OF HOMICIDE, OR A NEW LAW OF PUNISHMENT FOR HOMICIDE, OR PREFERABLY BOTH. THE JUDGES CAN DO NOTHING ABOUT THIS, BEING HELD FAST BY BINDING AUTHORITIES ON THE ONE HAND AND A MANDATORY STATUTE ON THE OTHER. ONLY PARLIAMENT HAS THE POWERS, IF IT WILL CHOOSE TO EXERCISE THEM. IT MAY NOT BE A POPULAR CHOICE, BUT SURELY IT IS JUSTICE THAT COUNTS.LORD STEYNLORDS,LORDS, FOR THE REASONS CONTAINED IN THE SPEECH TO BE DELIVERED BY MY NOBLE AND LEARNED FRIEND, LORD HUTTON, WHICH I HAVE READ IN DRAFT, I SUPPORTED THE ORDERS MADE BY THE HOUSE IN THE APPEALS UNDER CONSIDERATION ON 17 JULY 1997. GIVEN THE IMPORTANCE AND DIFFICULTY OF THE LEGAL ISSUES AT STAKE I MAKE A FEW ADDITIONAL OBSERVATIONS.LORD HUTTON HAS DEMONSTRATED IN HIS COMPREHENSIVE REVIEW OF THE CASE LAW THAT THE LAW IS AS STATED IN THE TWO PRIVY COUNCIL DECISIONS. THAT DOES NOT MEAN THAT THE ESTABLISHED PRINCIPLE CANNOT BE RE-EXAMINED AND, IF FOUND TO BE FLAWED, RE-FORMULATED. BUT THE EXISTING LAW AND PRACTICE FORMS THE STARTING POINT.LORDS IN REG. V. MOLONEY [1985] AC 905 AND REG. V. HANCOCK [1986] AC 455. THOSE DECISIONS DISTINGUISH BETWEEN FORESIGHT AND INTENTION AND REQUIRE IN THE CASE OF MURDER PROOF OF INTENTION TO KILL OR CAUSE SERIOUS BODILY INJURY. BUT THOSE DECISIONS WERE INTENDED TO APPLY TO A PRIMARY OFFENDER ONLY. THE LIABILITY OF ACCESSORIES WAS NOT IN ISSUE. PLAINLY THE HOUSE DID NOT INTEND IN THOSE DECISIONS TO EXAMINE OR PRONOUNCE ON THE ACCESSORY PRINCIPLE. THE RESORT TO AUTHORITY MUST THEREFORE FAIL.JUSTICE SYSTEM EXISTS TO CONTROL CRIME. A PRIME FUNCTION OF THAT SYSTEM MUST BE TO DEAL JUSTLY BUT EFFECTIVELY WITH THOSE WHO JOIN WITH OTHERS IN CRIMINAL ENTERPRISES. EXPERIENCE HAS SHOWN THAT JOINT CRIMINAL ENTERPRISES ONLY TOO READILY ESCALATE INTO THE COMMISSION OF GREATER OFFENCES. IN ORDER TO DEAL WITH THIS IMPORTANT SOCIAL PROBLEM THE ACCESSORY PRINCIPLE IS NEEDED AND CANNOT BE ABOLISHED OR RELAXED. FOR THESE REASONS I WOULD REJECT THE ARGUMENTS ADVANCED IN FAVOUR OF THE REVISION OF THE ACCESSORY PRINCIPLE.LORD WINDLESHAM, WRITING WITH GREAT HOME OFFICE EXPERIENCE, HAS SAID THAT A MINORITY OF DEFENDANTS CONVICTED OF MURDER HAVE BEEN CONVICTED ON THE BASIS THAT THEY HAD AN INTENT TO KILL: "RESPONSES TO CRIME," VOL. 3 (1996), AT 342, N. 29. THAT ASSESSMENT DOES NOT SURPRISE ME. WHAT IS THE JUSTIFICATION FOR THIS POSITION? THERE IS AN ARGUMENT THAT, GIVEN THE UNPREDICTABILITY WHETHER A SERIOUS INJURY WILL RESULT IN DEATH, AN OFFENDER WHO INTENDED TO CAUSE SERIOUS BODILY INJURY CANNOT COMPLAIN OF A CONVICTION OF MURDER IN THE EVENT OF A DEATH. BUT THIS ARGUMENT IS OUTWEIGHED BY THE PRACTICAL CONSIDERATION THAT IMMEDIATELY BELOW MURDER THERE IS THE CRIME OF MANSLAUGHTER FOR WHICH THE COURT MAY IMPOSE A DISCRETIONARY LIFE SENTENCE OR A VERY LONG PERIOD OF IMPRISONMENT. ACCEPTING THE NEED FOR A MANDATORY LIFE SENTENCE FOR MURDER, THE PROBLEM IS ONE OF CLASSIFICATION. THE PRESENT DEFINITION OF THE MENTAL ELEMENT OF MURDER RESULTS IN DEFENDANTS BEING CLASSIFIED AS MURDERERS WHO ARE NOT IN TRUTH MURDERERS. IT HAPPENS BOTH IN CASES WHERE ONLY ONE OFFENDER IS INVOLVED AND IN CASES RESULTING FROM JOINT CRIMINAL ENTERPRISES. IT RESULTS IN THE IMPOSITION OF MANDATORY LIFE SENTENCES WHEN NEITHER JUSTICE NOR THE NEEDS OF SOCIETY REQUIRE THE CLASSIFICATION OF THE CASE AS MURDER AND THE IMPOSITION OF A MANDATORY LIFE SENTENCE.LORDS DECLINED TO RATIONALISE AND MODERNISE THE LAW ON THIS POINT. ONLY LORD EDMUND-DAVIES EXPRESSED THE HOPE THAT THE LEGISLATURE WOULD UNDERTAKE REFORM: SEE P. 583B-C. IN MY VIEW THE PROBLEM OUGHT TO BE ADDRESSED. THERE IS AVAILABLE A PRECISE AND SENSIBLE SOLUTION, NAMELY, THAT A KILLING SHOULD BE CLASSIFIED AS MURDER IF THERE IS AN INTENTION TO KILL OR AN INTENTION TO CAUSE REALLY SERIOUS BODILY HARM COUPLED WITH AWARENESS OF THE RISK OF DEATH: 14TH REPORT OF THE LAW REVISION COMMITTEE, (1980), PARA. 31, ADOPTED IN THE CRIMINAL CODE, FOR ENGLAND AND WALES, (LAW COM. NO. 177), (1986), CLAUSE 54(1). THIS SOLUTION WAS SUPPORTED BY THE HOUSE OF LORDS SELECT COMMITTEE ON MURDER AND LIFE IMPRISONMENT, HL PAPER 78-1, 1989, PAR 68.LORD HUTTON WHICH IN MY VIEW ACCURATELY STATES THE APPLICABLE LAW.LORD HUTTONLORDS,LORDSHIPS' HOUSE RELATE TO THE LIABILITY OF A PARTICIPANT IN A JOINT CRIMINAL ENTERPRISE WHEN ANOTHER PARTICIPANT IN THAT ENTERPRISE IS GUILTY OF A CRIME, THE COMMISSION OF WHICH WAS NOT THE PURPOSE OF THE ENTERPRISE.LORDSHIPS' HOUSE IS:LORDSHIPS' HOUSE AND THE TWO QUESTIONS CERTIFIED FOR THE OPINION OF THE HOUSE ARE AS FOLLOWS:LORDS, THE FIRST QUESTION GIVES RISE, IN MY OPINION, TO TWO ISSUES. THE FIRST ISSUE IS WHETHER THERE IS A PRINCIPLE ESTABLISHED IN THE AUTHORITIES THAT WHERE THERE IS A JOINT ENTERPRISE TO COMMIT A CRIME, FORESIGHT OR CONTEMPLATION BY ONE PARTY TO THE ENTERPRISE THAT ANOTHER PARTY TO THE ENTERPRISE MAY IN THE COURSE OF IT COMMIT ANOTHER CRIME, IS SUFFICIENT TO IMPOSE CRIMINAL LIABILITY FOR THAT CRIME IF COMMITTED BY THE OTHER PARTY EVEN IF THE FIRST PARTY DID NOT INTEND THAT CRIMINAL ACT TO BE CARRIED OUT. (I SHALL CONSIDER IN A LATER PART OF THIS JUDGMENT WHETHER THE FORESIGHT IS OF A POSSIBILITY OR OF A PROBABILITY.) THE SECOND ISSUE IS WHETHER, IF THERE BE SUCH AN ESTABLISHED PRINCIPLE, IT CAN STAND AS GOOD LAW IN THE LIGHT OF THE DECISIONS OF THIS HOUSE THAT FORESIGHT IS NOT SUFFICIENT TO CONSTITUTE THE MENS REA FOR MURDER IN THE CASE OF THE PERSON WHO ACTUALLY CAUSES THE DEATH AND THAT GUILT ONLY ARISES IF THAT PERSON INTENDS TO KILL OR CAUSE REALLY SERIOUS INJURY.LORDS, I CONSIDER THAT THERE IS A STRONG LINE OF AUTHORITY THAT WHERE TWO PARTIES EMBARK ON A JOINT ENTERPRISE TO COMMIT A CRIME, AND ONE PARTY FORESEES THAT IN THE COURSE OF THE ENTERPRISE THE OTHER PARTY MAY CARRY OUT, WITH THE REQUISITE MENS REA, AN ACT CONSTITUTING ANOTHER CRIME, THE FORMER IS LIABLE FOR THAT CRIME IF COMMITTED BY THE LATTER IN THE COURSE OF THE ENTERPRISE. THIS WAS DECIDED BY THE COURT OF APPEAL, CONSTITUTED BY FIVE JUDGES, IN REG. V. SMITH (WESLEY) [1963] 1 W.L.R. 1200. IN THAT CASE AFTER AN ARGUMENT IN A PUBLIC-HOUSE, WHERE THE APPELLANT AND THREE OTHER MEN HAD BEEN CAUSING A DISTURBANCE, THE APPELLANT AND ONE OF THE OTHER MEN WENT OUTSIDE WHERE THEY COLLECTED AND THREW BRICKS THROUGH THE GLASS DOOR OF THE PREMISES, IN ORDER TO "TEAR UP THE JOINT." WHILE THEY WERE SO DOING, ONE OF THE REMAINING TWO MEN, WHO WERE STILL INSIDE, CONTINUED THE ARGUMENT WHICH DEVELOPED INTO A FIGHT IN THE COURSE OF WHICH ONE OF THEM, A., STABBED THE BARMAN WITH A KNIFE, KILLING HIM. AT THE TIME OF THE STABBING THE APPELLANT WAS OUTSIDE THE PREMISES, BUT HE KNEW THAT THE MAN WHO STABBED THE BARMAN WAS CARRYING THE KNIFE ON HIS PERSON. ALL FOUR MEN WERE CHARGED WITH MURDER. THE TRIAL JUDGE DIRECTED THE JURY:LORD PARKER C.J. ACCEPTED, AT P. 118, THE PRINCIPLE FORMULATED BY MR. GEOFFREY LANE Q.C. (AS HE THEN WAS) ON BEHALF OF MORRIS:LORD LANE C.J. OBSERVED IN REG. V. WAKELY, AT P. 120, WITH REFERENCE TO THE USE OF A PICK AXE HANDLE IN A BURGLARY, "FORESEEABILITY THAT THE PICK AXE HANDLE MIGHT BE USED AS A WEAPON OF VIOLENCE WAS PRACTICALLY INDISTINGUISHABLE FROM TACIT AGREEMENT THAT THE WEAPON SHOULD BE USED FOR THAT PURPOSE." NEVERTHELESS IT IS POSSIBLE THAT A CASE MIGHT ARISE WHERE A PARTY KNOWS THAT ANOTHER PARTY TO THE COMMON ENTERPRISE IS CARRYING A DEADLY WEAPON AND CONTEMPLATES THAT HE MAY USE IT IN THE COURSE OF THE ENTERPRISE, BUT, WHILST MAKING IT CLEAR TO THE OTHER PARTY THAT HE IS OPPOSED TO THE WEAPON BEING USED, NEVERTHELESS CONTINUES WITH THE PLAN. IN SUCH A CASE IT WOULD BE UNREALISTIC TO SAY THAT, IF USED, THE WEAPON WOULD BE USED WITH HIS TACIT AGREEMENT. HOWEVER IT IS CLEAR FROM A NUMBER OF DECISIONS, IN ADDITION TO THE JUDGMENT OF THE COURT OF APPEAL IN REG. V. SMITH [1963] 1 W.L.R. 1200, THAT AS STATED BY THE HIGH COURT OF AUSTRALIA IN MCAULIFFE V. THE QUEEN (1995) 69 A.L.J.R. 621, 624 (IN A JUDGMENT TO WHICH I WILL REFER LATER IN MORE DETAIL) "THE SCOPE OF THE COMMON PURPOSE IS TO BE DETERMINED BY WHAT WAS CONTEMPLATED BY THE PARTIES SHARING THAT PURPOSE." THEREFORE WHEN TWO PARTIES EMBARK ON A JOINT CRIMINAL ENTERPRISE ONE PARTY WILL BE LIABLE FOR AN ACT WHICH HE CONTEMPLATES MAY BE CARRIED OUT BY THE OTHER PARTY IN THE COURSE OF THE ENTERPRISE EVEN IF HE HAS NOT TACITLY AGREED TO THAT ACT.LORD LANE C.J. TOOK ACCOUNT OF PROFESSOR SMITH'S COMMENT IN REG. V. WAKELEY THAT THERE IS A DISTINCTION BETWEEN TACIT AGREEMENT AND FORESIGHT AND MADE IT CLEAR THAT THE LATTER IS THE PROPER TEST.LORD LOWRY STATED, AT P. 53B:LORDSHIPS CONSIDER THAT SIR ROBIN USED THIS WORD--AND IN THAT REGARD THEY DO NOT DIFFER FROM COUNSEL--TO EMPHASISE THE FACT THAT MERE FORESIGHT IS NOT ENOUGH: THE ACCESSORY, IN ORDER TO BE GUILTY, MUST HAVE FORESEEN THE RELEVANT OFFENCE WHICH THE PRINCIPAL MAY COMMIT AS A POSSIBLE INCIDENT OF THE COMMON UNLAWFUL ENTERPRISE AND MUST, WITH SUCH FORESIGHT, STILL HAVE PARTICIPATED IN THE ENTERPRISE. THE WORD 'AUTHORISATION' EXPLAINS WHAT IS MEANT BY CONTEMPLATION, BUT DOES NOT ADD A NEW INGREDIENT. THAT THIS IS SO IS MANIFEST FROM SIR ROBIN'S PITHY CONCLUSION TO THE PASSAGE CITED: 'THE CRIMINAL CULPABILITY LIES IN PARTICIPATING IN THE VENTURE WITH THAT FORESIGHT.'"LORD PARKER IN REG. V. ANDERSON; REG. V. MORRIS [1966] 2 Q.B. 110, HAVING ACCEPTED THE PRINCIPLE FORMULATED BY MR. LANE, MADE IT CLEAR IN OTHER PARTS OF THE JUDGMENT THAT HE WAS NOT INTENDING TO DEPART FROM THE PRINCIPLE IN REG. V. SMITH, BECAUSE IMMEDIATELY AFTER STATING MR. LANE'S FORMULATION LORD PARKER SAID AT P. 119:LORD PARKER APPLIED THE TEST OF FORESIGHT WHEN HE STATED:LORD SCARMAN, REFERRING TO MOLONEY, STATED, AT P. 471:LORD HAILSHAM OF ST. MARYLEBONE L.C. PUT THE POINT SUCCINCTLY AND POWERFULLY IN HIS SPEECH IN REG. V. MOLONEY [1985] AC 905, 913: 'I CONCLUDE WITH THE PIOUS HOPE THAT YOUR LORDSHIPS WILL NOT AGAIN HAVE TO DECIDE THAT FORESIGHT AND FORESEEABILITY ARE NOT THE SAME THING AS INTENTION ALTHOUGH EITHER MAY GIVE RISE TO AN IRRESISTIBLE INFERENCE OF SUCH, AND THAT MATTERS WHICH ARE ESSENTIALLY TO BE TREATED AS MATTERS OF INFERENCE FOR A JURY AS TO A SUBJECTIVE STATE OF MIND WILL NOT ONCE AGAIN BE ERECTED INTO A LEGAL PRESUMPTION. THEY SHOULD REMAIN, WHAT THEY ALWAYS SHOULD HAVE BEEN, PART OF THE LAW OF EVIDENCE AND INFERENCE TO BE LEFT TO THE JURY AFTER A PROPER DIRECTION AS TO THEIR WEIGHT, AND NOT PART OF THE SUBSTANTIVE LAW.'LORD LANE C.J. STATED, AT PP. 76-77:LORDS IN REG. V. MOLONEY AND REG. V. HANCOCK HAVE HAD THE EFFECT OF COMPLETELY ALTERING THE LAW RELATING TO JOINT ENTERPRISE. THE WAY IN WHICH HE PUT IT WAS THIS. WE ASKED HIM TO DICTATE THE SUBMISSION SO WE COULD WRITE IT DOWN. NO MAN, HE SUBMITS, CAN BE CONVICTED OF MURDER UNLESS IT IS SPECIFICALLY DECIDED AGAINST HIM THAT HE HAD A MURDEROUS INTENT AND THAT COULD ONLY BE DECIDED AGAINST HIM IF THE JUDGE DIRECTED THE JURY THAT THAT WAS WHAT THEY HAD TO FIND.LORDSHIPS IN THAT CASE IN THE PASSAGE WHICH I HAVE READ.LORDS IN REG. V. MOLONEY AND REG. V. HANCOCK. WE DISAGREE. WE THINK THAT WHAT APPEARS IN THAT CASE, IF WE MAY SAY SO RESPECTFULLY, IS GOOD LAW.LORD LANE C.J. STATED, AT P. 780:LORDS IN REG. V. MOLONEY [1985] AC 905 AND REG. V. HANCOCK [1986] AC 455 HAD THE EFFECT OF COMPLETELY ALTERING THE LAW RELATING TO JOINT ENTERPRISE; THAT NO MAN CAN BE CONVICTED OF MURDER UNLESS IT IS SPECIFICALLY DECIDED AGAINST HIM THAT HE HAD A MURDEROUS INTENT; SINCE INTENT HAD TO BE READ AGAINST THE DECISIONS IN REG. V. MOLONEY [1985] AC 905 AND REG. V. HANCOCK [1986] AC 455 THE JURY OUGHT TO BE DIRECTED ON THE BASIS OF THOSE CASES.LORD LANE OBSERVED IN REG. V. SLACK, P. 780H, DIFFICULTIES HAD ARISEN FROM THE JUDGMENT OF THE COURT OF APPEAL IN REG. V. BARR (1986) 88 CR.APP.R. 362. IT APPEARS FROM THE FACTS THAT VIOLENT ACTS BY ALL THREE DEFENDANTS, WHO WERE BURGLARS, CAUSED THE DEATH OF THE HOUSEHOLDER. THE TRIAL JUDGE DIRECTED THE JURY AS THOUGH IT WAS NOT NECESSARY FOR A DEFENDANT CHARGED WITH MURDER TO POSSESS HIMSELF THE NECESSARY INTENT EITHER TO KILL OR DO SERIOUS BODILY HARM TO THE VICTIM: IT WAS ENOUGH TO CONVICT HIM OF MURDER IF HE CONTEMPLATED THAT ONE OF HIS CO-DEFENDANTS HAD ONE OF THESE INTENTS AND THAT HE FORESAW THE POSSIBILITY OF THAT INTENT BEING CARRIED INTO EFFECT BY THAT PERSON.LORD SCARMAN IN THIS HOUSE IN GILLICK V. WEST NORFOLK AND WISBECH AREA HEALTH AUTHORITY [1984] Q.B. 581; [1986] AC 112, 190E TO THE EFFECT THAT WHETHER OR NOT A DOCTOR WHO GIVES CONTRACEPTIVE ADVICE OR TREATMENT TO A GIRL UNDER THE AGE OF 16 YEARS COULD BE GUILTY OF AIDING AND ABETTING THE COMMISSION OF UNLAWFUL SEXUAL INTERCOURSE WOULD DEPEND ON HIS INTENTION. THE COURT OF APPEAL REJECTED THIS ARGUMENT IN THIS CASE ON THE GROUNDS THAT GILLICK WAS A CASE WHERE THERE WAS A CIVIL CLAIM FOR A DECLARATION AND THE SITUATIONS CONSIDERED WERE REMOTE FROM A COMMON ENTERPRISE CULMINATING IN MURDER. MY LORDS, I AGREE, AND I CONSIDER THAT A DOCTOR EXERCISING BONA FIDE HIS CLINICAL JUDGMENT CANNOT BE REGARDED AS ENGAGING IN A JOINT CRIMINAL ENTERPRISE WITH THE GIRL.LORD TAYLOR OF GOSFORTH C.J. STATED, AT P. 22A:LORDS' DECISION IN MAXWELL. IF THE RESULT IS AN UNACCEPTABLE ANOMALY, IT MUST NOW BE FOR THE HOUSE OF LORDS OR THE LEGISLATURE TO SAY SO."LORDS, I RECOGNISE THAT AS A MATTER OF LOGIC THERE IS FORCE IN THE ARGUMENT ADVANCED ON BEHALF OF THE APPELLANTS, AND THAT ON ONE VIEW IT IS ANOMALOUS THAT IF FORESEEABILITY OF DEATH OR REALLY SERIOUS HARM IS NOT SUFFICIENT TO CONSTITUTE MENS REA FOR MURDER IN THE PARTY WHO ACTUALLY CARRIES OUT THE KILLING, IT IS SUFFICIENT TO CONSTITUTE MENS REA IN A SECONDARY PARTY. BUT THE RULES OF THE COMMON LAW ARE NOT BASED SOLELY ON LOGIC BUT RELATE TO PRACTICAL CONCERNS AND, IN RELATION TO CRIMES COMMITTED IN THE COURSE OF JOINT ENTERPRISES, TO THE NEED TO GIVE EFFECTIVE PROTECTION TO THE PUBLIC AGAINST CRIMINALS OPERATING IN GANGS. AS LORD SALMON STATED IN REG. V. MAJEWSKI [1977] AC 443,482E, IN REJECTING CRITICISM BASED ON STRICT LOGIC OF A RULE OF THE COMMON LAW, "THIS IS THE VIEW THAT HAS BEEN ADOPTED BY THE COMMON LAW OF ENGLAND, WHICH IS FOUNDED ON COMMON SENSE AND EXPERIENCE RATHER THAN STRICT LOGIC."LORD LANE C.J. IN REG. V. HYDE [1991] 1 Q.B. 134, 139C, WHERE HE CITED WITH APPROVAL THE OBSERVATION OF PROFESSOR SMITH IN HIS COMMENT ON REG. V. WAKELEY:LORD LANE STATED, AT P. 139C:LORDSHIPS' HOUSE THE SUBMISSION (WHICH DOES NOT APPEAR TO HAVE BEEN ADVANCED IN THE COURT OF APPEAL) THAT IN A CASE SUCH AS THE PRESENT ONE WHERE THE PRIMARY PARTY KILLS WITH A DEADLY WEAPON, WHICH THE SECONDARY PARTY DID NOT KNOW THAT HE HAD AND THEREFORE DID NOT FORESEE HIS USE OF IT, THE SECONDARY PARTY SHOULD NOT BE GUILTY OF MURDER. HE SUBMITTED THAT TO BE GUILTY UNDER THE PRINCIPLE STATED IN CHAN WING-SIU THE SECONDARY PARTY MUST FORESEE AN ACT OF THE TYPE WHICH THE PRINCIPAL PARTY COMMITTED, AND THAT IN THE PRESENT CASE THE USE OF A KNIFE WAS FUNDAMENTALLY DIFFERENT TO THE USE OF A WOODEN POST.LORDS, I CONSIDER THAT THIS SUBMISSION IS CORRECT. IT FINDS STRONG SUPPORT IN THE PASSAGE OF THE JUDGMENT OF LORD PARKER IN REG. V. ANDERSON; REG. V. MORRIS [1966] 2 Q.B. 110, 120B WHICH I HAVE SET OUT EARLIER, BUT WHICH IT IS CONVENIENT TO SET OUT AGAIN IN THIS PORTION OF THE JUDGMENT:LORD PARKER IN REG. V. ANDERSON; REG. V. MORRIS [1966] 2 Q.B. 110, 120B) WHETHER A SECONDARY PARTY WHO FORESEES THE USE OF A GUN TO KNEECAP, AND DEATH IS THEN CAUSED BY THE DELIBERATE FIRING OF THE GUN INTO THE HEAD OR BODY OF THE VICTIM, IS GUILTY OF MURDER IS MORE DEBATABLE ALTHOUGH, WITH RESPECT, I AGREE WITH THE DECISION OF CARSWELL J. ON THE FACTS OF THAT CASE.LORD PARKER IN REG. V. ANDERSON, AT P. 120B, HE DID NOT QUALIFY HIS DIRECTION ON FORESIGHT OF REALLY SERIOUS INJURY BY STATING THAT IF THE JURY CONSIDERED THAT THE USE OF THE KNIFE BY WEDDLE WAS THE USE OF A WEAPON AND AN ACTION ON WEDDLE'S PART WHICH ENGLISH DID NOT FORESEE AS A POSSIBILITY, THEN ENGLISH SHOULD NOT BE CONVICTED OF MURDER. AS THE UNFORESEEN USE OF THE KNIFE WOULD TAKE THE KILLING OUTSIDE THE SCOPE OF THE JOINT VENTURE THE JURY SHOULD ALSO HAVE BEEN DIRECTED, AS THE COURT OF APPEAL HELD IN REG. V. ANDERSON, THAT ENGLISH SHOULD NOT BE FOUND GUILTY OF MANSLAUGHTER.LORDSHIPS TO GIVE ANY FURTHER CONSIDERATION TO THIS POINT AS ENGLISH HAS ALREADY SERVED A NUMBER OF YEARS IN DETENTION PURSUANT TO THE SENTENCE OF THE TRIAL JUDGE.LORD PARKER IN REG. V. ANDERSON, AT P. 120B. HAVING SO STATED AND HAVING REGARD TO THE DIFFERING CIRCUMSTANCES IN WHICH THE ISSUE MAY ARISE I THINK IT UNDESIRABLE TO SEEK TO FORMULATE A MORE PRECISE ANSWER TO THE QUESTION IN CASE SUCH AN ANSWER MIGHT APPEAR TO PRESCRIBE TOO RIGID A FORMULA FOR USE BY TRIAL JUDGES. HOWEVER I WOULD WISH TO MAKE THIS OBSERVATION: IF THE WEAPON USED BY THE PRIMARY PARTY IS DIFFERENT TO, BUT AS DANGEROUS AS, THE WEAPON WHICH THE SECONDARY PARTY CONTEMPLATED HE MIGHT USE, THE SECONDARY PARTY SHOULD NOT ESCAPE LIABILITY FOR MURDER BECAUSE OF THE DIFFERENCE IN THE WEAPON, FOR EXAMPLE, IF HE FORESAW THAT THE PRIMARY PARTY MIGHT USE A GUN TO KILL AND THE LATTER USED A KNIFE TO KILL, OR VICE VERSA.LORD PARKER IN REG. V. ANDERSON; REG. V. MORRIS [1966] 2 Q.B. 110. ONE PASSAGE COMMENCES AT P. 118F, THE SECOND PASSAGE COMMENCES AT P. 120B. TRIAL JUDGES HAVE FREQUENTLY BASED THEIR DIRECTIONS TO THE JURY IN RESPECT OF THE LIABILITY OF A SECONDARY PARTY FOR AN ACTION CARRIED OUT IN A JOINT VENTURE ON THE FIRST PASSAGE. THERE IS CLEARLY NO ERROR IN DOING SO. HOWEVER IN MANY CASES THERE WOULD BE NO DIFFERENCE IN RESULT BETWEEN APPLYING THE TEST STATED IN THAT PASSAGE AND THE TEST OF FORESIGHT, AND IF THERE WOULD BE A DIFFERENCE THE TEST OF FORESIGHT IS THE PROPER ONE TO APPLY. I CONSIDER THAT THE TEST OF FORESIGHT IS A SIMPLER AND MORE PRACTICABLE TEST FOR A JURY TO APPLY THAN THE TEST OF WHETHER THE ACT CAUSING THE DEATH GOES BEYOND WHAT HAD BEEN TACITLY AGREED AS PART OF THE JOINT ENTERPRISE. THEREFORE, IN CASES WHERE AN ISSUE ARISES AS TO WHETHER AN ACTION WAS WITHIN THE SCOPE OF THE JOINT VENTURE, I WOULD SUGGEST THAT IT MIGHT BE PREFERABLE FOR A TRIAL JUDGE IN CHARGING A JURY TO BASE HIS DIRECTION ON THE TEST OF FORESIGHT RATHER THAN ON THE TEST SET OUT IN THE FIRST PASSAGE IN REG. V. ANDERSON; REG V. MORRIS. BUT IN A CASE WHERE, ALTHOUGH THE SECONDARY PARTY MAY HAVE FORESEEN GRIEVOUS BODILY HARM, HE MAY NOT HAVE FORESEEN THE USE OF THE WEAPON EMPLOYED BY THE PRIMARY PARTY OR THE MANNER IN WHICH THE PRIMARY PARTY ACTED, THE TRIAL JUDGE SHOULD QUALIFY THE TEST OF FORESIGHT STATED IN REG. V. HYDE [1991] 1 Q.B. 134IN THE MANNER STATED BY LORD PARKER IN THE SECOND PASSAGE IN ANDERSON V. MORRIS.