Practice and Procedure

Knowledge of weapon and foresight of use

PUBLISHED December 20, 2011

Court of Appeal, Criminal Division

Published December 20, 2011

Regina v Carpenter

Before Lord Justice Richards, Mr Justice Keith and Mr Justice Nicol

Judgment November 11, 2011

In cases of joint enterprise, where the use of a particular weapon was foreseen but the secondary party did not share or foresee the intention with which it had been used, manslaughter remained as a possible alternative verdict to murder.

The Court of Appeal so stated in a reserved judgment of the court when dismissing the appeal of Tracy Maureen Carpenter against her conviction for manslaughter at Worcester Crown Court on April 1, 2010, before Judge McCreath, Recorder of Worcester on the ground that the judge had erred in directing the jury that a verdict of manslaughter would be open to them if they found the defendant not guilty of murder.

Mr Rex Tedd, QC for the defendant; Mr Timothy Raggatt, QCfor the Crown.

LORD JUSTICE RICHARDS said that the defendant, whose son had entered guilty pleas to the murder of the victim and the wounding of the victim?s mother, had been aware that he was carrying a knife when she had accompanied him to a ?fair-play fight? with the victim.

In summing-up the judge had said that if she had known or realised that her son had intended to use the knife to cause some injury or harm she would be guilty not of murder but manslaughter because the killing would have been unlawful and there had been a shared intention to that extent, but not a shared intention to kill. The jury acquitted her of murder but found her guilty of manslaughter.

The defendant contended that it was murder or nothing, relying onR v Mendez ([2010]EWCA Crim 516). As a secondary party she could not be liable for the victim?s death unless she had shared the intention to kill; she could be liable only to the extent of the acts she had foreseen which had not included death or life-threatening injury, as evidenced by her acquittal of murder.

However, that submission ran contrary to a clear and well-established line of authority: R v Powell; R v English (The TimesOctober 31, 1997; [1999] AC 1), R v Roberts ([2001] EWCA Crim 1564); R v Rahman (The Times July 7, 2008; [2009] 1 AC 129) andR v A ([2010] EWCA Crim 1662) which envisaged that a participant who lacked the requisite state of mind for murder might nevertheless be guilty of manslaughter.

Distinguishing R v Mendez, where there had been evidence that the secondary party had foreseen the use of violence with weapons other than a knife, the underlying issue was whether use of a knife was so fundamentally different from anything the secondary party had foreseen as to fall outside the scope of joint enterprise, in the present case the court was addressing a situation where the use of a knife had been foreseen but it had not been intended or foreseen that the knife would be used with the intention to kill or cause really serious harm.

If anything said in R v Mendez was to be taken as applying to the availability of a verdict of manslaughter in circumstances such as the present case, what had been said was plainly obiter and expressed without consideration of the R v Roberts line of authority which it could not displace; that remained good law and its application was determinative of the appeal.

Solicitors: Duncan Kenney, Worcester; Crown Prosecution Service, Worcester.