Liability 101: a tutorial teaser

An aspect of the mens rea requirements for liability as a secondary party to an offence was decided in R v Rahman [2008] UKHL 45 (2 July 2008).

Broadly, some foresight is required before accessory liability arises, but is it about what the principal might do, or what he might intend?

The Law Lords unanimously held that foresight goes to what the principal might do, not what he might intend.

In this case four men were charged with murder, and it was likely that the person who struck the fatal blow was never apprehended, as many of the participants in this confrontation between groups of youths fled as the police arrived. There was no doubt that the infliction of unlawful violence was a shared intention, and participants were armed with blunt instruments. However, the victim’s death was caused by a knife used with deadly force. The four defendants (appellants) did not know or foresee that killing was intended. This was held to be no obstacle to their conviction for murder.

The reasons for excluding knowledge or foresight of the principal’s intention from the mens rea for secondary liability were based on considerations pertaining to murder (Lord Bingham at 24-25). Foresight of the principal’s acts, insofar as they involved infliction of serious injury, was given some modification by Lord Brown at 68, with whom Lord Scott appears to have agreed at 31, and with whom Lord Neuberger agreed at 104: foresight of violent acts does not include the unexpected use of a more lethal weapon than had been expected as that would make the principal’s act fundamentally different from anything foreseen. Lord Bingham considered (26) that the exclusion of secondary liability where the principal’s act was “fundamentally different” from what was foreseen was a sufficiently clear criterion for a jury to understand without elaboration.

In New Zealand this topic is dealt with in s 66(2) of the Crimes Act 1961:

“Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.”

The point decided in Rahman would, if applied to this, mean that the word “known” applies to the actus reus of “the commission of that offence”, and not to its mens rea.

And here's the teaser: what if the victim in Rahman had survived and the accuseds were charged with being accessories to attempted murder? Would they have no defence that the principal did not intend to kill?