Law Report: Mental element for murder in joint-venture crime: Regina v Roberts: Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Hutchison and Mr Justice Holland)

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Where two persons, A and B, were engaged in a joint criminal enterprise, and B realised that, without prior agreement, A might kill or intentionally inflict serious injury, but B nevertheless continued to participate in the venture, that would amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, killed in the course of the venture. That principle was of general application, whether weapons were carried or not, and whether the object of the enterprise was to cause physical injury or to do some other unlawful act, such as burglary.

The Court of Appeal (Criminal Division) dismissed an appeal by Kelvin James Roberts against his conviction, at Cardiff Crown Court on 16 March 1991, for murder. He had already pleaded guilty to a charge of robbery. His co-accused, Anthony Gray, was convicted of both offences.

Diana Cotton QC (who did not appear below, but was assigned by the Registrar of Criminal Appeals) for Roberts; Gerard Elias QC and David Aubrey (CPS) for the Crown.

LORD TAYLOR giving the judgment of the court, said that on 4 August 1990, John Davies, a 69- year-old recluse who kept an axe by his chair following an earlier violent attack, was robbed and beaten to death at his home near Merthyr Tydfil. The case for the Crown was that Roberts and Gray were jointly responsible for the murder. Gray had spent the day drinking. Roberts, who lived in Swansea, had left his wife the day before and hitch-hiked to Merthyr Tydfil. He lost all his money in a betting shop and bumped into Gray, whom he knew though they were not friends, in the street.

After going for a drink at a rugby club they set off for the victim's home. Roberts admitted he knew they were going to rob the old man, whom Gray knew slightly.

In their evidence at trial, each suggested the venture was the other's idea. Their accounts of the killing conflicted, each blaming the other. Gray alleged that Roberts hit the victim on the head with a shovel. Roberts alleged that Gray had hit the victim with an axe.

Roberts admitted that he had contemplated there might be some violence when they went to the victim's house, and that he foresaw the risk of serious injury, but said his own role had been confined to pulling the victim off Gray during the struggle.

In summing up, while directing the jury on the distinction between murder and manslaughter in joint enterprise cases, the judge read the jury a passage from the judgment of Lord Lane, Lord Chief Justice, in R v Hyde, 92 Cr App R 131 at 135:

'If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with that requisite intent, kills in the course of the venture. As Professor Smith points out, B, in those circumstances, lent himself to the enterprise, and by so doing he has given assistance and encouragement to A in carrying out an enterprise which B realised may involve murder.'

On appeal, it was argued that the judge's directions were incorrect, or at least insufficient. This was not a case in which the object of the joint venture was to assault the victim; nor were lethal or indeed any weapons being carried. In those circumstances, it was wrong or insufficient for the judge to identify the degree of foresight required to be proved against Roberts as merely that Gray 'might' intentionally kill or inflict really serious injury.

It was argued, in reliance on a passage in the advice of Sir Robin Cooke in the Privy Council in Chan Wing-Siu v The Queen, 80 Cr App R 117 at 124, that the judge should have emphasised that the requisite foresight had to be of a 'real' or 'substantial' or 'serious' possibility of intentional killing or infliction of really serious injury.

'What has to be brought home to the jury is that occasionally a risk may have occurred to an accused mind - fleetingly or even causing him some deliberation - but may genuinely have been dismissed by him as altogether negligible.' In such cases, Sir Robin said, taking the risk should not make the accused party to murder.

In their Lordships' judgment, however, the principle stated by Lord Lane, in the passage from Hyde's case which the judge quoted to the jury, was of general application, whether weapons were carried or not and whether the object of the enterprise was to cause physical injury or to do some other unlawful act, such as burglary or robbery.

True, it would be easier for the Crown to prove that B participated in the venture realising that A might wound with murderous intent if weapons were carried or if the object was to attack the victim or both. But that was purely an evidential difference, not a difference in principle. With regard to Chan Wing-Siu's case, it was doubtful whether the defendant B, who fleetingly thought of the risk of A using violence with murderous intent in the course of a joint enterprise, only to dismiss it from his mind and go on to lend himself to the venture, could truly be said, at the time when he so lent himself, to 'foresee' or 'realise' that A might commit murder.

To realise something might happen was surely to contemplate it as a real not a fanciful possibility. Accordingly, to seek to distinguish between a fleeting but rejected consideration of a risk and a continuing realisation of a real risk would, in most cases, be unnecessary. It would also over-complicate directions to juries and possibly lead to confusion.