Murder by More Than OneOctober 2011

This is an especially difficult area of law. We cannot hope to cover each and every permutation that arises in the vast array of possibilities in this area. We do however, try to explain the law where the allegation is either murder by joint enterprise, or conspiracy to murder.

Definition of Conspiricy

The essence of any conspiracy is in the 'agreement'; - in this case the agreement to kill - there need not be a dead body. 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 Manchester gang-land case where the defendant had been charged with conspiracy to murder - 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, though the Crown could not say who played what role. Our client was acquitted

Section 1 of the Criminal Law Act 1977 creates the offence of statutory conspiracy. Put simply, 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 principal 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 will remind juries that for the prosecution to prove an 'agreement' they do not have to produce a signed contract proving the agreement to commit the offence. 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 lawyers can consider asking the Judge to give a jury direction on circumstantial evidence. This 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 therefore not admissible against anyone other than the maker. For example, say an undercover officer covertly records a suspect X showing off about how he and Y were involved in killing a man. In a conspiracy charge that conversation could not be evidence against Y under the acts and declarations rule because it is a conversation about a past event, i.e. not a conversation 'in furtherance of the common design' - it would only be admissible under the rule as evidence against X.

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 really serious bodily. 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 (kill or cause GBH) may be easier for them to prove than that in a conspiracy charge (intention to kill) - i.e. charge murder on a joint enterprise basis.. So, for example where there are issues of causation in a case involving more than one defendant, i.e. who did what? - it may be easier for the Crown to pursue a conspiracy charge rather than a substantive charge; it all depends on the facts.

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 is a partial defence to murder. However, it cannot be a defence to conspiracy to murder - you cannot plan to be provoked and lose your senses so much you kill your provoker.

Joint Enterprise

An indictment alleging straight murder, but against two defendants will invariably be a 'joint enterprise' allegation. Joint enterprise is different to conspiracy. It simply means two or more persons embarking on a course of action together so that each is responsible for the outcome - e.g. a getaway driver in a bank robbery is guilty of robbery even if he never set foot in the bank. But, say the actual robber shoots dead a bank customer - is the driver outside guilty of murder? The Crown have a choice in such circumstances as to whether to prosecute the 'agreement' - i.e. a conspiracy charge, or whether to prosecute the substantive offence of straight murder a 'joint enterprise'.

In R. v. Powell and another; R. v. English [1999] 1 A.C. 1, H.L. and later in R v Rahman & Ors [2009] 1 AC 129, HL 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 by 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.

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. Thus in the bank robbery example the getaway driver could be guilty of murder where in the course of the robbery the cashier was shot and the driver knew that his friend in the bank had taken with him a loaded shotgun, and of a real possibility that he would use it, if necessary, with intent to kill or to cause really serious injury, even if the two had previously agreed that the gun would only be used to threaten - the knowledge of the 'real possibility' of what the principal might do thus becomes the issue for the jury.

The Northern Irish Court of Appeal considered the possibility of manslaughter as an alternative verdict for accessories. In R v. Gilmour (Thomas Robert) [2000] 2 Cr. App. R. 407 it found that where, the principal does an act which the accessory agrees to but with an intent outside the contemplation of the accessory - the accessory is not blameless, he may be found guilty of a lesser offence - so, 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. In such circumstances the accessory could be convicted of manslaughter.

Conclusion

The stakes are high in any homicide case. This is one area where a clear forensic approach is needed from the outset and particular care paid to any defence set out in the Defence Statement - as always early preparation is the key.

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) and has extensive experience in all aspects of the Proceeds of Crime Act 2002.

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.

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