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Murder: Conspiracy and Joint Enterprise

1 May 2012

One Dead; more than one in the Dock

Murder; the most serious of offences and, almost, the easiest to understand. Killing within intent to do so, or to cause really serious harm. What could be simpler for a jury? Unfortunately, it can get very complicated when there is more than one person in the dock or the charge is conspiracy to murder rather than actual murder. In this article we look at some of the complexities thrown up by these two very different offences - offences which still trouble the Court of Appeal with alarming regularity despite the law remaining fairly stable.

Conspiracy to Murder

The essence of this offence is in the 'agreement'; - the agreement to kill - there need not in fact be a dead body. On the other hand prosecutors sometimes like to use this charge when there is more than one person in the dock and all are alleged to have played a different role in an unlawful killing. In those circumstances it is sometimes easier to charge conspiracy to murder even though there is a body. The authors, for example, were involved in a gang-land case where the defendant had been charged with conspiracy to murder (he was later acquitted) - the murder victim had been shot by an unknown male who was with a group of other masked males. The police made several arrests and tried them all for conspiracy to murder.

Definition of Conspiracy

Under section 1 of the Criminal Law Act 1977 it is an offence "if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions..." results in the commission of an offence. That means simply that, just as it is a criminal offence to rob or murder or steal, so it is a criminal offence for two or more persons to agree with one another to rob or murder or steal - or whatever the offence maybe.

The course of conduct proposed must be something that will be done by one or more of the parties to the agreement - the other parties to the agreement must take some role and must know that murder is in mind.

Proving the 'Agreement'

Judges remind juries that for the prosecution to prove an 'agreement' they do not have to produce a signed contract. Juries are invited to make inferences from the evidence - for example, circumstantial evidence of a series of suspicious meetings or links to other co-defendants by telephone calls and so on. Often these factual assertions are agreed, but the inferences that can be drawn from these facts are not agreed. Tactical care and skill is required to identify how best to attack the prosecution's case - i.e. does a series of calls or meetings equate to participation in some unlawful agreement? Is there another explanation? The fact is that the defence may, either through cross-examination or through the defendant's evidence, show that there are other 'co-existing circumstances' which explain the issues and can weaken the prosecution's inference. The defence can consider asking the Judge to give a jury direction on circumstantial evidence. This simply means that the Judge will remind the jury that, as a matter of law, it should distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Juries are often told that speculating in a case amounts to no more than guessing.

Acts and Declarations

In conspiracy cases there will often be significant areas of evidence which, on the face of it, seem damming but which in fact are not admissible against a particular defendant. A basic rule of evidence is that, ordinarily, acts done or words uttered by 'A' cannot be evidence against 'B'. But in conspiracy cases there is the so-called 'acts and declarations' rule. This provides that the acts or declarations of any conspirator or co-accused made in furtherance of the alleged common design may be admitted as part of the evidence against any other conspirator.

To be admissible against a co-defendant the declaration in question must be in furtherance of the common design; it must "be demonstrated to be one forming an integral part of the machinery designed to give effect to the joint enterprise" – R v Reeves, unrep. Dec 4, 1998. Descriptions of past events for example are not made in furtherance of the common design and are not admissible against anyone other than the maker. Say an undercover officer covertly records a suspect X discussing the preparations for an offence where Y is mentioned. This could be admissible evidence in a conspiracy case against both X and Y.

Difference Between Murder and Conspiracy to Murder

The main difference of course is that no one needs to be killed. This comes up often in so called 'honour-killing' plots where the accused will all be members of a family who are accused of taking steps to kill another family member –usually a female with plans to marry outside the family race or religion. The police will get wind of the case and either make arrests or even, in a case which Rahman Ravelli Solicitors were involved in, employ an undercover officer to pretend to be a potential hit-man.

The intention in a murder charge is an intent to kill or to cause grievous bodily harm (GBH). The intention to actually kill must be present in a conspiracy to murder charge; it is not enough to have an intention to commit GBH only. However, when there is an actual death and there is more than one defendant in the dock the Crown will sometimes prefer a straight murder charge as the intention element may be easier for them to prove than that in a conspiracy charge - i.e. charge murder on a joint enterprise basis; see below.

Another significant difference is of course the sentence. We all know that there is only one sentence for the offence of murder and that is the mandatory life sentence for adult offenders. That is not true in conspiracy cases, the sentence is open - though, depending on the facts, a conspiracy to murder case may well attract a life sentence.

Provocation was a partial defence to murder, reducing a verdict to manslaughter if successful. From 4/10/10 this defence has been abolished and replaced with a new defence of "loss of self control" (Coroners & Justice Act 2009). This appears to be a little wider than the old provocation defence, see R v Clinton, Parker and Evans, Times Law Rep 30/1/12.

Joint Enterprise

Joint enterprise simply means two or more persons embarking on a course of action together so that each is responsible for the outcome - e.g. the getaway driver in a bank robbery is guilty of robbery even if he never set foot in the bank.

In R. v. Powell and another; R. v. English [1999] 1 A.C. 1, H.L. the House of Lords considered the vexed question of the liability of secondary parties in joint enterprise homicide allegations. In Mr. English's case the defence of the secondary party - i.e. English, was that he contemplated that GBH would occur to the victim (who was in fact a police sergeant) using a wooden post but did not know that the principal offender would pull out a knife and stab the victim. The trial Judge directed the jury in effect that they could convict English even if he did not know about the knife if he nevertheless knew there was a substantial risk that the principal might cause GBH with the wooden post. The House of Lords did not approve of this direction and the conviction was quashed. However, that does not mean that a difference in the final weapon used always exempts secondary parties from liability to murder, it all depends on the facts and specifically what sort of different weapon was used - i.e. using a gun instead of a knife might be held to make no difference as each is a highly dangerous weapon to use and so even a secondary party not knowing about the gun could be convicted; see generally R v Rahman [2009] 1 Cr. App. R 1.

Where two or more persons embark on a joint enterprise each is liable for the acts done in pursuance of that joint enterprise - this is so even if unusual results follow. But, where, the principal does an act which the accessory agrees to, but with an intent outside the contemplation of the accessory, it has been held by the Northern Ireland Court of Appeal in R. v. Gilmour (Thomas Robert) [2000] 2 Cr. App. R. 407, that the accessory, though not blameless; in such circumstances, may be found guilty of a lesser offence. For example, a principal throws a petrol bomb into a house with the assistance of a secondary party. The principal wants to kill but the secondary party has no such intention - believing perhaps the property to be empty and intending only to start a fire. In such circumstances the accessory could be convicted of manslaughter.

In R v Mendez [2010] EWCA Crim 516 the appeal court considered what the proper directions to a jury were in a situation where there had been a spontaneous group joint attack - a regular scenario in our criminal courts. In such circumstances only a broad brush direction could be given about the level of violence and risk of injury that a defendant must have intended or foreseen. The jury then had to apply their common-sense, to the question of whether the principal's (the stabber in that case) act was of a nature likely to be altogether more life-threatening. In cases where the common purpose was not to kill but to cause serious harm, a secondary party was not liable for murder if the direct cause of death was a deliberate and unforeseen act by the actual killer. See also R v Yehmoh [2009] Crim LR 888 and R v Carpenter [2012] 1 Cr. App. R 11.

Conclusion

These cases cannot be more serious. As can be seen they are capable of throwing up difficult technical points. In these cases though, perhaps more than most, the essence of the defence will often lie in a clear understanding of what inferences are going to be made from primary facts, and knowing how to tackle them and having a clear understanding of the law.

Authors

Jonathan Lennon is a Barrister specialising in serious and complex criminal defence case at 23 Essex Street Chambers in London. He is a contributing author to Covert Human Intelligence Sources, (2008 Waterside Press).

Aziz Rahman is a Solicitor- Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel and have recently been ranked by Legal 500 as an 'excellent' firm with Aziz Rahman being described as 'first class and very experienced'.


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