Four members of the Ulster Volunteer Force had combined to inflict punishment on an allegedly delinquent member of the organisation. The punishment was to consist of knee-capping (the firing of a bullet or bullets into a knee or other joint, so as to cripple but not kill the victim) and a beating. In the event the victim died. Several bullets caused wounds which could, but need not, have proved fatal. The cause of his death was the extremely forceful cutting of his throat. The court considered the liability of secondary party defendants for murder within a joint enterprise.
Held: The court rejected the prosecution argument that since there was an intention to inflict grievous bodily harm, and that satisfied the mens rea requirement of murder, the deliberate killing of the victim was not very different in kind from what was contemplated. Carswell J said that they ‘must be taken to have had within their contemplation the possibility that life might be put at risk. The issue is whether it follows as a consequence that they cannot be heard to say that the murder was a different crime from the attack which they contemplated, and so cannot escape liability for the murder an the ground that it was outside the common design. To accept this type of reasoning would be to fix an accessory with consequences of his acts which he did not foresee and did not desire or intend. The modern development of the criminal law has been away from such an approach and towards a greater emphasis on subjective tests of criminal guilt, as Sir Robin Cooke pointed out in Chan Wing-Siu. Although the rule remains well entrenched that an intention to inflict grievous bodily harm qualifies as the mens rea of murder, it is not in my opinion necessary to apply it in such a way as to fix an accessory with liability for a consequence which he did not intend and which stems from an act which he did not have within his contemplation. I do not think that the state of the law compels me to reach such a conclusion, and it would not in my judgment accord with the public sense of what is just and fitting.’
Judges:
Carswell J
Citations:
[1989] NI 268
Jurisdiction:
Northern Ireland
Cited by:
Dicta approved – Regina v Powell and Davies 1998
. .
Cited – Regina v Jenkins and Another CACD 14-Feb-2002
The decision in Smith (Morgan) does not prevent use of the expression ‘the reasonable man’ in the judge’s summing-up, in Weller, when considering how a jury should be directed on provocation, the court plainly regarded the relevant question as being . .
Cited – Rahman and Others, Regina v HL 2-Jul-2008
The defendants appealed against their convictions for murder. None had themselves inflicted any violence, but were convicted as part of a joint enterprise. They said they had not known that the principal carried a knife. They said that the evidence . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 06 May 2022; Ref: scu.188890