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You are here: BAILII >> Databases >> The Law Commission >> A New Homicide Act For England And Wales? (Consultation Paper) [2005] EWLC 177(5) (20 December 2005) URL: http://www.bailii.org/ew/other/EWLC/2005/177(5).html Cite as: [2005] EWLC 177(5) |
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PART 5
COMPLICITY IN "FIRST DEGREE MURDER"
QUESTIONS AND PROVISIONAL PROPOSALS .
(1) When should D be guilty of "first degree murder"? Our provisional proposal is where:
(a) D intends that "first degree murder" should be committed;(b) D was a party to a joint venture with P to commit "first degree murder"; or(c) D was a party to a joint venture with P to commit another crime and he foresaw that P might commit "first degree murder" in the course of that venture).
[paragraphs 5.48–5.51]
(2) Should D be granted a partial defence to "first degree murder" simply on the basis that he was not a perpetrator and had only a peripheral role in the joint venture? Our provisional proposal is that D should not.
[paragraph 5.58]
(3) Should D be able to rely on duress as a defence to "first degree murder"?
Our provisional proposal is that D should be able to rely on it as a partial defence which would reduce D's offence for "second degree murder".
[paragraph 5.75]
(4) Should D be able, in certain circumstances, to be guilty of "complicity in an unlawful killing" (alternatively, manslaughter) instead of "first degree murder"? Our provisional proposal is that D should if he was a party to a joint venture to commit a crime with P, he intended or foresaw that harm (or the fear of harm) might be caused by a party to the venture and it would have been obvious to a reasonable person in D's position that someone might be killed as a result of the venture.
[paragraph 5.83]
INTRODUCTION
5.2 The common law doctrine of secondary liability (or "complicity") governs, amongst other things, the criminal liability of a person ("D") who does not himself perpetrate the commission of a criminal offence but indirectly participates in its commission by encouraging or assisting a perpetrator ("P") before it is committed or while it is being committed (or both).[1] The offence committed by P, for which D is liable, is usually referred to as the "principal offence".
5.5 First of all, D can in some circumstances be liable for murder, and therefore subject to the mandatory life sentence, merely on the basis that he foresaw the possibility that grievous bodily harm might be caused,[2] a culpable state of mind quite different from that required for primary liability as a murderer.[3]
5.6 Secondly, the defence of duress cannot at present excuse D from secondary liability for murder[4] even though D may be so liable by the application of the doctrine's broader fault requirement. It follows that if D is charged with murder, and the elements of the defence of duress are made out, D is nevertheless to be found guilty of murder and sentenced to life imprisonment, even if he merely believed that relatively "minor" serious harm (of a non-life-threatening type) might be caused to another person.[5]
(1) In the first section we summarise the common law doctrine of secondary liability and the problems the courts have had to deal with when applying it to murder.
(2) In the second section, we set out our proposals for reforming the doctrine of secondary liability at a general level and recapitulate our proposal for a new fault requirement for (primary) liability for murder.[6] We then go on to explain what impact our proposals will have on the doctrine of secondary liability as it applies to murder and "first degree murder".
(3) In the third section we address duress as a defence to complicity in "first degree murder", again in the context of a reformed doctrine of secondary liability.
(4) In the fourth section, we set out our proposals for a new offence of homicide for cases where, under our reformed doctrine of secondary liability, D would not be liable for the "first degree murder" committed by P.
SECONDARY LIABILITY AND MURDER AT COMMON LAW .
5.8 As explained above, the doctrine of secondary liability imposes criminal liability on a person, D, for indirectly participating in the principal offence committed by the perpetrator, P.[7] The term "principal offence" includes an attempt by P to commit a substantive offence (and therefore includes attempted murder).[8]
5.9 The following explanation of the doctrine sets out its key features and the problems which have arisen in cases where the principal offence is murder. Aspects of the doctrine and defences which are unlikely to be of any relevance in murder cases are either not addressed or are mentioned only in passing. We therefore omit any further reference to the concept of "procuring", a somewhat anomalous form of secondary liability[9] which has been used by the courts to impose criminal liability on persons who bring about the commission of a no-fault principal offence by a non-culpable (but nonetheless guilty) perpetrator[10] or the actus reus of an offence by a person who is (in effect) an innocent agent.[11] The present analysis focuses on persons who encourage or assist murder but cannot be said to have been the cause, or one of the causes, of that crime. Procuring is a relatively incidental facet of the doctrine of secondary liability, and is unlikely to be of relevance in cases where the principal offence is murder.[12]
D's conduct – the general rule . _'>
5.10 Section 8 of the Accessories and Abettors Act 1861 sets out the key procedural rule that any person who "shall aid, abet, counsel or procure the commission of any indictable offence ... shall be liable to be tried, indicted, and punished as a principal offender".[13] Disregarding procuring, it is generally accepted that these specified modes of involvement – aid, abet and counsel – cover two types of conduct: the provision of encouragement or assistance.[14] The nature of D's encouragement or assistance may take any form, so long of course as his conduct occurs before or during the commission of the principal offence.[15]
5.11 By virtue of section 8 of the Accessories and Abettors Act 1861, it is not necessary for the Crown to prove the accused's precise mode of participation in the principal offence. For example, if two persons (A1 and A2) are charged with having murdered V, and it can be proved that each co-accused was either P or D, then the jury are entitled to convict them both of "murder" even though they cannot be sure which of them was the perpetrator and which the encourager or assister.[16] In Giannetto,[17] for example, the allegation was that the accused had either hired a hit-man to murder his wife or had himself perpetrated the killing, but it could not be proved which. The Court of Appeal upheld his conviction for murder on the ground that, because his mode of participation was a matter of legal indifference, it had been permissible for the jury to convict him of murder so long as they were satisfied that he was either P or D, even if they were divided on his actual mode of participation.[18]
5.12 For D to be secondarily liable for murder on the basis of his having encouraged or assisted P, it is necessary for the Crown to prove that murder has indeed been committed. That is to say, it must be proved that P killed another human being with the intention to kill or cause serious harm. However, it is not necessary that P should actually be liable for that offence before D can be so liable. P may be able to rely on a partial defence to murder which is unavailable to D.[19]
5.13 Nor is it necessary for the Crown to prove any "but for" causal link between D's relevant conduct and the commission of the principal offence. Implicit in the concept of encouraging or assisting another person to commit a principal offence, and D's being derivatively liable for that offence rather than primarily liable for it as a joint perpetrator, is that D's conduct made a contribution to its commission but not a causal connection. This contribution cannot be one of "but for" causation, moreover, because the concept breaks down in the vast majority of cases where the conduct of a fully-informed autonomous individual (P) intervenes between D's conduct and the commission of the principal offence.[20]
5.14 There must, however, be a "derivative connection" between D's conduct and P's offence. Indeed, if this were not the case D would be liable on an inchoate basis without reference to P's offence.[21] Nevertheless, although reference has been made in a number of cases to the requirement of some kind of connection between D's conduct and the commission of the principal offence by P,[22] the case law provides no fully articulated explanation of its nature.
(1) for encouraging, D's relevant conduct was communicated to P and to some extent encouraged P in his intention to commit the principal offence;[23] and
(2) for assisting, D's relevant conduct to some extent facilitated the commission of the principal offence by P, whether or not he was aware of the assistance.[24]
5.16 The issue has not been adequately addressed by the courts, presumably because it has always been clear that encouragement or assistance was in fact provided. Nevertheless, the issue may be raised by the defence, and in principle the Crown would need to prove that D's conduct did in fact provide P with some (presumably any degree of) encouragement or assistance on the basis that it is an element of the basis of D's alleged liability. Speculating further, it may be that there is a rebuttable presumption that D actually encouraged or assisted P in the commission of the principal offence once the Crown has proved that D's conduct (having the capacity to encourage the commission of the offence) was communicated to P[25] or D's conduct (having the capacity to assist the commission of the offence) might have assisted P.[26] If this is correct it is presumably no more than an evidential presumption.[27]
D's state of mind – the general rule
5.17 The basic principle is the same in all cases of encouraging or assisting (at least in cases where there is no "joint enterprise")[28] but it is difficult to pinpoint the precise state of mind needed for secondary liability from the case law. No one case explicitly sets out a general test, and the cases from which a general test may be inferred are not consistent.
(1) it was not his purpose that the principal offence should be committed;[29] and
(2) it was not his purpose to encourage or assist P to commit the principal offence;[30] although either of these two states of mind suffices for secondary liability.
5.19 Accordingly, the only intention needed is the intention to do the act which provided P with encouragement or assistance.[31]
(1) that the principal offence would be committed (or that it was in the process of being committed); and
(2) that his own (intentional) conduct would provide P with encouragement[32] or was capable of providing P with assistance.[33]
5.21 With regard to the requirement in paragraph 5.20(1), what is required is knowledge of "the essential matters" which constitute the commission of the principal offence.[34] The essential matters would seem to encompass the various aspects of the actus reus and the fact that P will be acting (or is acting) with the mens rea required for primary liability.[35]
5.22 In the context of encouraging or assisting crime, knowledge that something exists (or will exist) must include a belief that it exists (or will exist). For example, D cannot "know" P's state of mind, but he can form an equivalent level of understanding from what he has been told or directly perceived. Similarly, knowledge that P will commit the actus reus of the principal offence must include a belief that P will commit it.[36]
(1) D must know or believe that P is committing the actus reus of the principal offence with the requisite mens rea for primary liability;[37] and
(2) D must know or believe that his own (intentional) conduct is providing P with encouragement or is capable of providing P with assistance.
For example, D finds P violently kicking V in the head and shouts encouragement to ensure that the kicking continues. If P is aware of the encouragement, and V dies as a result of the kicking, D will be liable for the murder committed by P.
(1) D must know or believe that P will commit the actus reus of the principal offence with the requisite mens rea for primary liability;[38] and
(2) D must know or believe that his own (intentional) conduct is providing (or will provide) P with encouragement or is capable of providing P with assistance.
For example, D sells P a knife believing that he will cause serious harm with the intent to cause such harm, knowing that the knife could be used. If P uses the knife to murder V, D is also liable for murder.
5.25 With regard to the requirement in paragraph 5.24(1), it is not necessary that D should "know" the particular principal offence P will ultimately commit (and for which D will ultimately be liable). It suffices if D "knows" the type of offence P ultimately commits.[39] There are a number of points to note about this principle:
(1) If D provides P with assistance in relation to a type of offence he believes P will commit, D will incur secondary liability for each and every such offence P commits with that assistance. Thus, if D sells P a gun believing that he will use it to commit murder, D will be liable for all the murders P subsequently commits with it.
(2) If D believes that P will commit an offence with his assistance, but does not have a firm belief that P will commit a particular type of offence, D will be liable for P's offence only if the principal offence is one of the range of possible types of offence D believes P might commit. In other words, foresight of a possibility suffices as to the type of principal offence committed by P, so long as D believed that P would commit an offence – the Maxwell principle.[40] For example, if D sells P a knife believing that he will use it to commit a crime and that the crime might be murder or might be causing actual bodily harm or might be robbery, he will be secondarily liable for murder if P uses the knife to commit that offence.
(3) Presumably D will not be liable for the fatal consequences of P's conduct if D believed P would commit an offence against V in a particular way (eg, serious bodily harm by breaking V's toes) and P committed the offence in a fundamentally different way (for example, life-threatening serious harm by repeatedly kicking V's head) resulting in V's death.[41]
(4) It may be the law that D will incur secondary liability for P's principal offence (offence X) if D believed that P would commit offence Y but merely believed that P might also (or alternatively) commit offence X while executing his plan to commit offence Y or while escaping from the scene.[42] An example would be where D sells P a jemmy believing that he will commit burglary, and D also believes that, if caught in the act, P might use it to commit murder to avoid being apprehended.
D's conduct and state of mind – joint enterprises
5.30 It should therefore be the case that D can be liable as a secondary participant in the commission of P's principal offence only if D provided him with actual encouragement or assistance in relation to that offence.[43] It must also be the case, moreover, that D may be liable for P's principal offence regardless of whether it was D's purpose that it (or any other offence) should be committed and regardless of whether it was his purpose that assistance or encouragement should be provided.[44]
5.32 Importantly, in cases of joint enterprise where D is an "indifferent" participant,[45] the mens rea requirement in respect of the commission of the principal offence is not "knowledge" (or an equivalent belief) but foresight of a possibility. The twin requirements that D was a party to an agreement to commit an offence,[46] and that D foresaw that the principal offence might be committed, replace the standard secondary liability requirement (for indifferent participants) of knowledge or belief that the principal offence would be committed (for encouragement or assistance provided in advance of the commission of the principal offence).[47] The justification can be found in the additional culpability which comes with being involved in an express or tacit agreement with one or more other persons to commit an offence.
5.33 It may also be the law that there is a requirement for joint enterprises, in line with the requirement for secondary liability generally, that an "indifferent" D must have known or believed that his conduct would encourage P or that it had the capacity to assist P in relation to the commission of an offence (if not the principal offence ultimately committed). It will be seen below that secondary liability may be incurred for any contemplated offence committed pursuant to, or in relation to the fulfilment of, the joint enterprise, whether or not it is the offence the parties agreed to commit. Thus, if there is a requirement of mens rea on the part of D in respect of the possible effects of his conduct it is likely to be that D knew or believed that his conduct would encourage P or that it had the capacity to assist P in relation to the commission of the offence they agreed to commit (that is, the object of the enterprise or their common purpose) whether or not it is the same offence as the principal offence.[48] Alternatively, it may be that there is no mens rea requirement in relation to D's own conduct in joint enterprise cases, where D is a party to an express or tacit agreement that an offence be committed.[49]
5.34 The requirement that there should be an agreement does not mean that D should have had the commission of the "agreed offence" (the criminal object of the joint enterprise) as his purpose to be liable for it should it be committed.[50] Indeed it would appear that D does not need to satisfy any mens rea requirement in respect of the agreement. Whether an agreement can be inferred would appear to be a straightforward question of fact with reference to the way the parties conducted themselves or worked together.[51] Thus, if D and P agreed to murder V, and P subsequently murders V in pursuance of their agreement, D will be secondarily liable for murder even if his purpose in entering the agreement was to defraud P of money and decamp without participating in the offence.[52] D's liability depends on encouragement or assistance having been provided by him in respect of the murder[53] and foresight by him that the murder might be committed.
5.35 The same principle applies in cases where the principal offence which P ultimately commits is not the "agreed offence" but some other offence (a "collateral offence"). So long as D foresaw that the collateral offence might be committed in relation to the fulfilment of the enterprise, and it can be said that D provided P with encouragement or assistance, D will be secondarily liable for that offence.[54]
5.37 The following points should be noted:
(1) The courts have adopted a pragmatic approach in response to the question whether encouragement or assistance was provided in relation to the commission of a collateral offence. The accepted position is that because D has provided encouragement or assistance in relation to the joint enterprise (to commit the agreed offence), he must thereby have provided encouragement or assistance in relation to the collateral offence which was committed as an incident to it.[55]
(2) It follows that for D to be liable for a collateral offence, it must have been committed by P (and foreseen by D) as something done in relation to the fulfilment of the enterprise.[56] This presumably covers collateral offences committed during any of the following periods: (a) the preparatory stages immediately leading up to the attempt to commit the agreed offence; (b) the commission stage, where there is (or would have been) an attempt to commit the agreed offence; and (c) the subsequent stage during which the parties effect, or try to effect, their escape.
(3) If the collateral offence is murder, D will be secondarily liable for it if he foresaw the possibility that P might seriously harm another person with the intention of causing serious harm or death.[57]
(4) D is not liable for any collateral offence deliberately committed by P which D did not foresee as a possibility.[58] However, D is liable for the unforeseen "unusual consequences" arising from the foreseen execution of the joint enterprise by P.[59] For example, if D foresaw that P might punch V in the back of the head to cause him no more than actual bodily harm, and P acted in accordance with that foresight, the consequence being that V died on account of his latent thin skull, D would be liable as a secondary party to P's offence of manslaughter.
(5) D is not liable for a murder committed by P, or indeed for manslaughter, if
(a) it was agreed that murder should be committed against a particular individual and P wilfully and knowingly committed it against a different person;[60] or
(b) it was agreed that an offence[61] should be committed against a particular person and P wilfully committed an offence "of a quite different nature" (that is , murder) against him;[62] D will be liable for murder in both cases, however, if he foresaw the possibility that P might deviate as he in fact did.
(6) As a general rule, D is liable for the principal offence (including murder) committed by P if D agreed to and/or contemplated a particular time, location or method for the offence but P committed it at a different time or in a different place or in a different way.[63] There is, however, an exception in the case of murder (and possibly the non-fatal offence of causing serious harm with intent)[64] where D contemplates that P will cause V serious harm with intent in a particular (that is, non-lifethreatening) way and P causes V serious harm with intent in a "fundamentally different"[65] (that is, life-threatening) way. P's fundamentally different conduct means that D will be guilty of neither murder nor manslaughter.[66] The following points should be noted:
(a) If D contemplates that P will cause V serious harm with intent with a particular weapon, and P uses a different weapon to cause V serious harm with intent, D will not be liable for V's death (or presumably the serious injury which led to his death) if the jury regard P's conduct in using that weapon as he did as a "fundamentally different" act from the type of act contemplated. Whether an act is "fundamentally different" is a question of fact, a "significant factor" being P's use of an uncontemplated weapon (unless the weapon was "equally likely to inflict fatal injury").[67]
(b) Although the question is one of fact, in truth D's liability for P's offence would seem to turn on whether D contemplated a nonlife-threatening form of serious harm and P committed a life-threatening form of serious harm. For example, it would seem to be implicit in Carswell J's ruling in Gamble[68] that P's use of a gun to shoot V in a vital part of his body would have been regarded as fundamentally different from the contemplated (and possibly nonlife-threatening) act of shooting V in the kneecaps.[69] As the law stands, however, there is no guidance available to the judge or jury as to what is meant by "fundamentally different".[70]
(c) If P's actual conduct was the same (or presumably of the same type) as that contemplated by D, but P's state of mind was different, P and D will each be liable to the extent of their individual mens rea. Thus, in Gilmour,[71] where D assisted P in the delivery of a petrol bomb to a house, causing the death of three occupants, P was liable for murder (as he had the intent to kill or cause serious harm) but D was liable only for manslaughter (as he had not contemplated P's true state of mind and had himself intended only to frighten the occupants).[72]
(d) Similarly, if P punches V's head with the intention of causing serious harm, and D contemplated a punch of that ferocity intending (and believing that P intended) no more than actual bodily harm, P will be liable for murder and D liable for manslaughter if the punch causes V's death (on account of his thin skull, which P but not D was aware of).[73]
(e) In the light of the approach adopted by the House of Lords in Powell and Daniels; English[74] it may be presumed that the earlier decision of the Court of Appeal in Stewart and Schofield[75] no longer reflects the law.[76] In that case D knew that P had an iron bar and that he might use it to cause V actual (that is, minor) bodily harm. P ultimately used the iron bar in a racially-motivated attack aimed at causing V serious harm or death, which resulted in V's death. D was held to be liable for manslaughter. However, on the basis that D cannot now be liable even for manslaughter if P's conduct was fundamentally different from that contemplated by D, it is to be assumed that, as a vicious attack with an iron bar would have to be regarded as "fundamentally different" from a "mild" assault with an iron bar involving only minor bruising, D could not now be liable for manslaughter in a case such as this.[77]
SECONDARY LIABILITY FOR MURDER – OUR PROPOSALS
5.39 We have explained elsewhere[78] our proposal that P, who has caused another person's death, should be guilty of "first degree murder" only if it was his intention[79] to kill.
5.40 In addition, we intend to publish in the near future our detailed proposals and draft Bill for a new statutory doctrine of secondary liability to complement our imminent Report and draft Bill on inchoate liability for encouraging or assisting crime.[80]
A new doctrine of secondary liability .
5.41 For present purposes it is sufficient if we summarise our proposals for secondary liability in broad terms. In short, we recommend the retention of much of the common law doctrine. However, "procuring" would be removed from the doctrine;[81] and in cases where there is no joint enterprise, D (an encourager or assister) would not be liable for P's principal offence unless he intended that it should be committed. The "indifferent" encourager or assister who was not a party to a joint enterprise, and who did not intend that the principal offence should be committed,[82] would no longer incur secondary liability for P's offence. He would instead be liable for the new inchoate offence of knowingly encouraging or assisting a crime.
(1) it was D's intention that the principal offence should be committed;
(2) D and P were parties to a joint venture[83] to commit the principal offence; or
(3) D and P were parties to a joint venture to commit an offence other than the principal offence and D foresaw the possible commission of the principal offence in relation to the fulfilment of the venture (which is what happened).
5.45 Our view is that there should continue to be a uniform basis for determining secondary liability applicable across the entire spectrum of criminal offences, including murder. Similarly, our proposed inchoate offences of encouraging or assisting a crime would generally apply to all offences, including murder.[84]
(a) D "INTENDED" THAT "FIRST DEGREE MURDER" SHOULD BE COMMITTED
(1) D himself intended that death should be caused; or
(2) D foresaw that, if the conduct element of "first degree murder" were to be committed, P would act with the intention to kill.[85]
(b) D AND P WERE PARTIES TO A JOINT VENTURE TO COMMIT "FIRST DEGREE MURDER"
5.49 D would be liable for the "first degree murder" committed by P if they were both parties to a joint venture[86] to commit (the conduct element of) "first degree murder", and:
(1) D himself intended that death should be caused; or
(2) D foresaw that, if the conduct element of "first degree murder" were to be committed, P, another party to the venture, would act with the intention to kill.
(c) D AND P WERE PARTIES TO A JOINT VENTURE TO COMMIT ANOTHER OFFENCE
(1) D himself intended that death should be caused; or
(2) D foresaw that, if the conduct element of "first degree murder" were to be committed (in relation to the fulfilment of the venture) P, another party to the venture, would act with the intention to kill.
"First degree murder" rather than "second degree murder"?
5.55 The principle of parity of culpability also justifies the procedural rule whereby a defendant may be convicted of murder even if the jury cannot be sure whether he was the perpetrator or an encourager or assister.[87]
A special defence for secondary participants in murder? .
5.59 Under our proposals for reforming the doctrine of secondary liability, D's liability will be dependent on the commission of an offence by P. What will need to be established is that P committed the actus reus of the principal offence with the requisite mens rea and that, before or during the period when that actus reus was committed, D provided P with (actual) encouragement or assistance with the mens rea for secondary liability.[88]
5.63 At common law, and under our proposals, if D contemplates that P might cause V serious harm with intent in a particular (in effect, non-life-threatening) way and P causes V serious harm with intent in a "fundamentally different" (in effect, life-threatening) way, D will not be liable for the murder committed by P. Subject to another, independent basis for imposing liability for V's death on D,[89] P's fundamentally different conduct at common law and under our proposals means that D will not be guilty of murder or manslaughter on the basis of V's death.
5.64 However, the need for a special defence of this sort stems from the very broad scope of the present "grievous bodily harm rule" for the mens rea for murder. On the assumption that the mens rea for (primary liability for) "first degree murder" will be limited to an intention to kill, the problem disappears.[90]
A PARTIAL DEFENCE OF DURESS FOR PARTICIPANTS IN MURDER?
5.66 The defence of duress (as a complete excuse negating liability) is unavailable to perpetrators or accessories in relation to murder and attempted murder.[91]
5.67 The defence is also unavailable in relation to participation in other offences, if the accused was voluntarily involved in a criminal gang and foresaw, or ought reasonably to have foreseen, the possibility of being subjected to compulsion by threats of violence.[92]
5.71 Certainly proof of an agreement to participate cannot depend upon a requirement that D acted with the purpose of achieving the goal set by the parties. If D conspires with other persons to the effect that V should be killed, but he is in it just for the money and has no personal animosity towards V – indeed he hopes that the venture will fail – he should still be liable for their "first degree murder" of V if it is committed and he provided the perpetrator with encouragement or assistance.[93] Accordingly the concept of "agreeing" must be given a broad meaning. But should it cover the situation where D's assent is obtained by a threat to cause him or his family serious harm or death?
5.75 Our provisional proposal[94] is indeed that duress should be a defence to "first degree murder" for perpetrators, reducing P's liability to "second degree murder". Accordingly, our view is that the defence should also be available to a secondary participant (D) on the same terms. [Proposal 3]
M kidnaps the daughter of a couple, D and P, and tells them she will be murdered unless D and P immediately murder V. D, the more phlegmatic of the two, holds V down and encourages P to cut V's throat, which is what P does.
5.78 We are proposing only minor changes to the rules governing the defence of duress and we are proposing no changes to the rule relating to how a voluntary involvement in a criminal joint venture prevents D from raising duress as a defence.[95]
A NEW HOMICIDE OFFENCE FOR SOME PARTIES TO A JOINT VENTURE
5.81 In the years prior to the decision of the House of Lords in Powell and Daniels; English[96] D could be held liable for manslaughter on account of P's commission of murder, notwithstanding P's act being unforeseen or unintended by D.[97] This also reflects the present position in a number of other common law jurisdictions.[98] Our view is that it would be quite wrong to hold D liable for V's death – that is, liable for manslaughter – under our reformed doctrine of secondary liability in a case where the scope of the joint venture was limited to causing actual bodily harm or relatively "minor" serious harm (such as a broken foot) and yet P, on a frolic of his own, deliberately inflicted life-threatening harm which resulted in V's death. A scheme which would impose liability for manslaughter in such cases could lead to quite bizarre, not to say unjust, convictions. It would mean, for example, that if two schoolboys, D and P, agreed to punch their tormentor, V, a few times with a view to giving him some bruises or a bloody nose, and during their attack, P acted entirely out of character by violently kicking V in the head intending to kill or cause a life-threatening injury, D would be liable for manslaughter. We do not think it would be just to hold D criminally responsible for the death of V in such a case.
5.82 Nevertheless, there are some situations where, we believe, it would be just to impose liability on D for V's death, despite P's conduct in killing V not being foreseen by D. This liability would not arise out of the doctrine of secondary liability, however. D's liability for V's death would have an independent basis, one that is conceptually linked with the present common law basis for imposing primary liability for manslaughter on the ground of "gross negligence" and our recommendations in Law Com No 237[99] for replacing that offence with a new offence of "killing by gross carelessness".[100]
5.83 Drawing on our proposals in Law Com No 237 for the necessary conceptual framework, D would be liable for a new homicide offence of "complicity in an unlawful killing" if D intended or foresaw (non-serious) harm or the fear of harm and, in the circumstances, it would have been obvious to a reasonable person in D's position that someone might suffer death or serious injury as a result of the joint venture.[101] The reasonable person would be taken to have knowledge of any relevant facts which D had at the material time.[102] [Proposal 4]
5.85 In summary, D would be guilty of this new offence of "complicity in an unlawful killing" if:
(1) D and P were parties to a joint venture to commit an offence;
(2) P committed the offence of "first degree murder" or "second degree murder" in relation to the fulfilment of that venture on account of his intention to kill or cause serious injury;[103]
(3) D intended or foresaw that (non-serious) harm or the fear of harm might be caused by a party to that venture; and
(4) a reasonable person in D's position, with D's knowledge of the relevant facts, would have foreseen an obvious risk of death or serious injury being caused by a party to that venture.
effect to the community's sense that a man who joins in a criminal enterprise with the knowledge that knives (or other weapons such as loaded guns) are being carried should bear a share of criminal responsibility for an ensuing death … ."[104]
the law's experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others.[105]
Note 1 D is sometimes referred to as a “secondary party” or an “accessory”, but his (secondary) liability is no different from a perpetrator’s (primary) liability. The position where D intentionally causes an offence to be committed through the medium of an “innocent agent” or a “semi-innocent agent” does not fall within the scope of the doctrine of secondary liability and is therefore not addressed in this paper. Nor, it will be seen, do we address the anomalous “procuring” aspect of the doctrine of secondary liability, which imposes such liability for a no-fault offence D intentionally causes to be committed. [Back] Note 2 We discuss the problems engendered by the “grievous bodily harm rule” in Part 3. [Back] Note 3 The (direct or oblique) intention to cause grievous bodily harm or death. [Back] Note 4 Howe [1987] AC 417. Nor is the defence available in respect of attempted murder: Gotts [1992] 2 AC 412. [Back] Note 5 This is, however, subject to a common law defence that enables D to avoid liability for the death if P’s act was “fundamentally different” from anything D envisaged. [Back] Note 6 “First degree murder”. [Back] Note 7 D’s secondary liability is governed by a doctrine of the common law: Jefferson [1994] 1 All ER 270, 280 (CA); and see generally Russell on Crime (12th ed 1964) 157 and J C Smith, “Aid, Abet, Counsel, or Procure” in P R Glazebrook (ed) Reshaping the Criminal Law, Essays in Honour of Glanville Williams (1978) 120, 125. [Back] Note 8 Contrary to the Criminal Attempts Act 1981, s 1. See Hapgood and Wyatt (1870) LR 1 CCR 221, Dunnington [1984] 1 QB 472 and O’Brien [1995] 2 Cr App R 649. [Back] Note 9 Procuring is anomalous because, unlike assisting or encouraging, it requires D to have been the cause (or one of the causes) of P’s principal offence: see A-G’s Reference (No 1 of 1975) [1975] QB 773. [Back] Note 10 For example, where D surreptitiously adds alcohol to the non-alcoholic drink of a driver (P) and so brings about the commission of P’s no-fault offence of drink-driving: A-G’s Reference (No 1 of 1975) [1975] QB 773. [Back] Note 11 For example, where D encourages a male (P) who lacks the capacity for criminal responsibility to commit the actus reus of rape: DPP v K and B [1997] 1 Cr App R 36. [Back] Note 12 The relevant doctrine is that of innocent (and semi-innocent) agency. [Back] Note 13 Magistrates’ Courts Act 1980, s 44(1), governs, in similar terms, secondary liability for summary offences. Section 44(2) provides that an alleged accessory to an offence which is triable either way may be tried summarily or on indictment, [Back] Note 14 See Smith & Hogan, Criminal Law (11th ed 2005) 171; Kadish, Blame and Punishment: Essays in the Criminal Law (1987) 135, 151; Williams, “Complicity, Purpose and the Draft Code” [1990] Crim LR 4, 7; Dennis, “The mental element for accessories” in Smith (ed) Criminal Law, Essays in Honour of JC Smith (1987) 40, 42. In A-G’s Reference (No 1 of 1975) [1975] QB 773 the Court of Appeal was of the view that each of the words “aid, abet, counsel or procure” was to be given its ordinary meaning, representing a different mode of participation. Accordingly, counselling describes encouraging or advising before the principal offence is committed; abetting must mean encouraging P during the commission of the principal offence; and aiding means assisting P prior to and/or during the commission of the principal offence. [Back] Note 15 Most conduct which assists or encourages a perpetrator will comprise an overt act by D, but D may be liable as a secondary party if (with the requisite mens rea) he assists or encourages P by his failure to act when as a matter of law he is duty-bound to do so. A legal duty to act may arise from a legal entitlement to act. In other words, if D has a specific legal right to intervene to control P’s conduct, and by failing to exercise that right he provides P with assistance or encouragement, D will be secondarily liable for P’s offence (if D satisfies the mens rea requirement for such liability). [Back] Note 16 Although the Crown is expected to specify in the indictment the nature of the accused’s alleged participation (DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350) this is unnecessary if it is not possible to say whether he was the perpetrator or an accessory. The Crown is entitled to put its case on the basis that the accused was either one or the other, and the jury may convict on that basis: see Gaughan [1990] Crim LR 880 and Giannetto [1997] 1 Cr App R 1. In Mercer [2001] EWCA Crim 638 it was held that there is no violation of Article 6(3) of the European Convention on Human Rights where the Crown alleges that the accused was a party in a joint enterprise but cannot specify his precise role. [Back] Note 17 [1997] 1 Cr App R 1. [Back] Note 18 The effect of Giannetto, and the Court of Appeal’s approval of the decision of the Supreme Court of Canada in Thatcher [1987] 1 S.C.R. 652, is that where the evidence is consistent with both theories it is immaterial that the jury are split on the nature of the accused’s involvement, so long as they are all satisfied that he was either a perpetrator or an accessory. As Lamer J noted, the jury would be satisfied that the accused had participated in the offence. However, in line with Brown (1984) 79 Cr App R 115 (CA) it may not be possible to convict the accused in a case where the Crown evidence is inconsistent, with some evidence (accepted by some jurors but rejected by others) suggesting that the accused was P acting alone and other evidence (accepted by some jurors but rejected by others) suggesting that he was D. [Back] Note 19 D can be liable for murder even though P is liable for nothing more than voluntary manslaughter on the basis of the excusatory partial defence of provocation or diminished responsibility. For the general principle that D can be secondarily liable even though P is excused from liability, see Bourne (1952) 36 Cr App R 125 and Austin [1981] 1 All ER 374. (The excusatory defence of duress is unavailable to a murderer.) [Back] Note 20 There are also dicta to the effect that the required contribution is not one of “but for” causation; see A-G v Able [1984] 1 QB 795, 812 and Calhaem [1985] 1 QB 808, 813. That no “but for” test applies is also apparent from some decisions on the facts, for example Wilcox v Jeffery [1951] 1 All ER 464, where D was one of many members of an audience listening to P’s illegal performance on his saxophone. (It should be noted, however, that the concept of “but for” causation has been extended in recent years to cover an activity and an outcome which would not traditionally be regarded as causally linked; see Kennedy (No 2) [2005] EWCA Crim 685, [2005] 1 WLR 2159.) [Back] Note 21 The existence of the general inchoate offence of encouraging (ie, “incitement”) alongside secondary liability for encouraging (ie, “abetting” or “counselling”) is the clearest evidence that there must be a connection between D’s conduct and the commission of the principal offence for D to be secondarily liable for it. In the context of murder, there is a separate statutory form of incitement in s 4 of the Offences Against the Person Act 1861 (soliciting murder). [Back] Note 22 A-G v Able [1984] 1 QB 795, 812; Calhaem [1985] 1 QB 808, 813. [Back] Note 23 Encouraging is broad enough to encompass incitement, advising and expressing support for what P already intends to do. In Giannetto [1997] 1 Cr App R 1 the trial judge directed the jury that D could be liable as an accessory to murder if P suggested the crime and D, patting P on the back and nodding, said “Oh goody”. The Court of Appeal noted (at 13) that any involvement from “mere encouragement upwards” suffices. [Back] Note 24 In State v Tally (1894) 15 So 722 (Supreme Court of Alabama) D was secondarily liable for murder on account of his conduct in preventing a warning being sent to the prospective victim. It was irrelevant to D’s liability that P was unaware of his assistance. [Back] Note 25 Giannetto [1997] 1 Cr App R 1 suggests that a communication which has the capacity to encourage gives rise to a presumption that P was indeed encouraged. [Back] Note 26 Professor K J M Smith suggests that there is a “covert doctrine” to this effect in his A Modern Treatise on the Law of Criminal Complicity (1991) 19. [Back] Note 27 In other words, if D is able to refer to admissible evidence which might lead the jury to have a reasonable doubt as to whether or not any actual encouragement or assistance was provided, the Crown would have to prove beyond reasonable doubt that P was actually encouraged or assisted by D (albeit to any extent). [Back] Note 28 Joint enterprises are discussed from para 5.26. [Back] Note 29 National Coal Board v Gamble [1959] 1 QB 11, 23; DPP for Northern Ireland v Lynch [1975] AC 653 approving Lynch [1975] NI 35, 55; Clarke (1985) 80 Cr App R 344; JF Alford Transport [1997] 2 Cr App R 326, 335. (See also the “procuring case” of Blakely and Sutton v DPP [1991] RTR 405 and the “joint enterprise” case of Rook (1993) 97 Cr App R 327, 331.) The old case of Fretwell (1862) 152 Le & Ca 161, which suggests that there is a requirement of purpose, can be explained on the basis of an excusatory defence of “benevolent purpose”. The same point may be made in respect of certain dicta in the (noncriminal) case of Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. [Back] Note 30 It is clear from JF Alford Transport [1997] 2 Cr App R 326 that an encourager need not have as his purpose that P should be encouraged. Although there are cases which suggest a requirement of an “intention to encourage”, this would seem to require nothing more than that D should intend to do his own act in the knowledge or belief that encouragement is being provided (see n 32). [Back] Note 31 In JF Alford Transport [1997] 2 Cr App R 326, 334 the Divisional Court felt that “it would have to be proved that [D] intended to do the acts which he knew to be capable of assisting or encouraging the commission of the crime”, save that where D’s conduct is an omission there must be “a deliberate decision to refrain” from acting. [Back] Note 32 This requirement can be derived from the cases dealing with persons who encourage by passively watching an offence being committed. See Clarkson [1971] 1 WLR 1402, 1406– 1407, approving the dictum of Hawkins J in Coney (1882) 8 QBD 534, 558. The mens rea requirement for encouraging by presence alone is knowledge that the offence is being committed and “wilful encouragement”, which, according to Clarkson [1971] 1 WLR 1402, 1407, requires that D “intended to give encouragement”. It would appear, however, that “intention” is broad enough to include a realisation by D (ie, knowledge or belief) that he is encouraging P by his presence (Clarkson [1971] 1 WLR 1402, 1407). The latter state of mind is analogous to “indirect intention” for primary liability. It is to be noted, however, that in JF Alford Transport [1997] 2 Cr App R 326 the Divisional Court felt (at 334) that D could be secondarily liable for P’s offence if he merely believed that his intended conduct had the capacity to encourage (that is, might encourage) P (see n 31). [Back] Note 33 See JF Alford Transport [1997] 2 Cr App R 326, 334 (n 31). It is to be noted, however, that in DPP for Northern Ireland v Lynch [1975] AC 653, 699 Lord Simon said (in the context of assisting) that the “act of supply must be voluntary ... and it must be foreseen that the instrument or other object or service supplied will probably (or possibly and desiredly) be used for the commission of a crime”. [Back] Note 34 Johnson v Youden [1950] 1 KB 544, National Coal Board v Gamble [1959] 1 QB 11. [Back] Note 35 In the context of secondary liability for an unintended offence of murder arising out of a joint enterprise (where foresight of a possibility suffices) Lord Steyn has said that D “must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally’ (Powell and Daniels; English [1999] 1 AC 1, 13–14, emphasis in original). [Back] Note 36 As opposed to, say, a belief that P might commit it. [Back] Note 37 In Carter v Richardson [1974] RTR 314 it was said (obiter) that an assister or encourager could be liable on the basis of a circumstance which D thought was “probable”. However, the weight of authority demands knowledge: ie, a belief that something does exist. [Back] Note 38 There is, however, a case on the “procuring” form of secondary liability which suggests that foresight of a possibility as to the commission of the (prospective) principal offence suffices: Blakely and Sutton v DPP [1991] RTR 405. Although the court was not limiting its comments to procuring, the case should be confined to its own facts given the weight of authority requiring “knowledge” for secondary liability (in the absence of a joint enterprise).
– eg, National Coal Board v Gamble [1959] 1 QB 11 and Bainbridge [1960] 1 QB 129. [Back] Note 39 Bainbridge [1960] 1 QB 129. [Back] Note 40 DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350. [Back] Note 41 In the context of joint enterprises, D will not be liable for the fatal consequences of P’s conduct if P committed the agreed (or contemplated) offence in a “fundamentally different” way from that envisaged by D (Powell and Daniels; English [1999] 1 AC 1, 28). This principle has been applied only in cases of murder, however, so it remains to be seen whether it is available in relation to non-fatal consequences. [Back] Note 42 In the context of joint enterprises, D would be liable for offence X if P and D were participants in an enterprise to commit offence Y and D foresaw the possibility that offence X might be committed (Chan Wing-Siu [1985] 1 AC 168). [Back] Note 43 Paras 5.15–5.16. In the absence of any other conduct or participation, the mere act of entering into a conspiracy (an agreement) should provide sufficient evidence of encouraging for secondary liability. If D is a party to a conspiracy to commit murder, and the offence is committed by another party (P) without any assistance from D, D’s secondary liability for murder derives from the fact that P has been encouraged by D on account of their common involvement in the same conspiracy; see, for example, Croft [1944] 1 KB 295, 297. If the conspiracy is a “chain” or “wheel” conspiracy, and D and P never met or directly communicated with each other, it may be that D will be secondarily liable for P’s offence on the basis of the “indirect encouragement” provided by their common participation in the same conspiracy (Cf Smith & Hogan, Criminal Law (11th ed 2005) 170). It would seem that there is no English authority directly on this point, although in Fletcher, Fletcher and Zimnowodski [1962] Crim LR 551 the Court of Criminal Appeal would appear to have assumed that, in the absence of an effective withdrawal, any party to a conspiracy to commit an offence is secondarily liable for it once it is committed. In the United States the principle is clearer. According to the US Supreme Court in Pinkerton v United States 328 US 640 (1946), D’s participation with P in a conspiracy to commit an offence is of itself enough to sustain D’s conviction for the principal offence committed by P in furtherance of the conspiracy. [Back] Note 45 That is, D’s purpose is something other than the commission of the offence ultimately committed by P. [Back] Note 46 Including the concept of “common purpose” where, technically, no agreement can be inferred. [Back] Note 47 If D provides his encouragement or assistance during the commission of the offence he will almost certainly know or believe that the principal offence is being committed. [Back] Note 48 If D knows he is providing encouragement or assistance in relation to the joint enterprise, he may be presumed to know that he is also providing encouragement or assistance in relation to any contemplated offence he envisages will be committed as an incident to the enterprise. [Back] Note 49 In joint enterprise cases the courts have focused on D’s state of mind in respect of the commission of the principal offence, disregarding the question of D’s state of mind in relation to the possible effect of his own conduct. [Back] Note 50 Of course if there is no communicated agreement, but D and P acted with a common purpose in relation to the commission of an offence, it follows that D must have had the commission of that offence as his purpose. [Back] Note 51 In many (if not most) cases where there is an agreement to commit an offence, the parties will in any event share a common purpose that that agreed offence should be committed. [Back] Note 52 Rook (1993) 97 Cr App R 327. [Back] Note 53 Which, as explained already, may be provided by his merely being a party to the conspiracy. [Back] Note 54 Smith [1963] 1 WLR 1200, Chan Wing-Siu [1985] 1 AC 168, Hyde [1991] 1 QB 134, Hui Chi-Ming [1992] 1 AC 34, Powell and Daniels; English [1999] 1 AC 1. [Back] Note 55 Hyde [1991] 1 QB 134, 139. [Back] Note 56 It is sufficient that D foresaw that a party to the enterprise might commit the offence, regardless of whether D had any particular individual in mind (Nelson (1999) unreported (98/01747/Z5). [Back] Note 57 In Powell and Daniels; English [1999] 1 AC 1, 13–14 Lord Steyn said that D “must be proved to have been [subjectively] reckless, not merely whether death might be caused, but whether murder might be committed” but added that D “must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally’(emphasis in original). In Hyde [1991] 1 QB 134, 139 Lord Lane CJ said that for D to be secondarily liable for the collateral offence of murder, D must realise that “[P] may kill or intentionally inflict serious harm”. [Back] Note 58 Davies v DPP [1954] AC 378, 401, Mahmood [1994] Crim LR 368, Powell and Daniels; English [1999] 1 AC 1. [Back] Note 59 Baldessare (1931) 22 Cr App R 70, Anderson and Morris [1966] 2 QB 110, 118. [Back] Note 60 Saunders and Archer (1573) 2 Plowd 473; Leahy [1985] Crim LR 99; Hawkins, A Treatise of the Pleas of the Crown, Vol 2, (8th ed 1824), Chapter 29, section 21; Stephen, A Digest of the Criminal Law (9th ed 1950) Article 22; Hale, The History of the Pleas of the Crown, Vol 1 (1800), 616. [Back] Note 61 An offence other than murder or causing (life-threatening) serious harm with intent. [Back] Note 62 Hawkins, A Treatise of the Pleas of the Crown, Vol 2, (8th ed 1824), Chapter 29, section 21; Stephen, A Digest of the Criminal Law (9th ed 1950) Article 22; Hale, The History of the Pleas of the Crown, Vol 1, (1800) p 616; Russell on Crime, Vol 1 (12th ed 1964) p 161. This ties in with the “fundamental difference” test developed by the courts in recent years: Powell and Daniels; English [1999] 1 AC 1, Greatrex and Bates [1999] 1 Cr App R 126, Uddin [1999] QB 431. [Back] Note 63 Hawkins, A Treatise of the Pleas of the Crown, Vol 2, (8th ed 1824), Chapter 29, section 20; Stephen, A Digest of the Criminal Law (9th ed 1950) Article 19; Hale, The History of the Pleas of the Crown, Vol 1, (1800) p 617. For example, where D agrees that P should stab V in the heart but P instead shoots V in the heart. [Back] Note 64 Offences Against the Person Act 1861, s 18. [Back] Note 65 “Fundamentally different” (Powell and Daniels; English [1999] 1 AC 1, 28, Greatrex and Bates [1999] 1 Cr App R 126, 137–138); “entirely different” or “completely different” (Uddin [1999] QB 431, 441). [Back] Note 66 Anderson and Morris [1966] 2 QB 110, 120; Powell and Daniels; English [1999] 1 AC 1; Greatrex and Bates [1999] 1 Cr App R 126; Uddin [1999] QB 431, 441; A-G’s Reference (No 3 of 2004) [2005] EWCA Crim 1882. Cf D [2005] EWCA Crim 1981 (n 73 and n 77). [Back] Note 67 Uddin [1999] QB 431, 441 per Beldam LJ. [Back] Note 68 [1989] NI 268, 283–284. [Back] Note 69 In fact the victim died on account of the cut to his throat, inflicted just prior to or after his being shot in a life-threatening way. [Back] Note 70 In Powell and Daniels; English [1999] 1 AC 1 the House of Lords felt that the use of a knife to cause serious harm was fundamentally different from the use of a wooden post to cause serious harm. It is to be noted that their Lordships did not expressly articulate a distinction based on whether the injury contemplated by D would or would not have been life-threatening. [Back] Note 71 [2000] 2 Cr App R 407. [Back] Note 72 The position is unclear if P’s conduct is superficially the same as but inherently different from that contemplated by D, and D did not contemplate P’s state of mind. It may be that D and P will be liable to the extent of their own mens rea in relation to the facts as they believed them to be. For example, if D assists P to inject a liquid into V’s arm which P knows is a lethal poison but which D believes is a mild sleeping draught, P would be liable for murder whereas D would be liable for manslaughter. Alternatively P’s conduct may be regarded as fundamentally different from that contemplated by D, which would mean that D could not be liable for manslaughter. The latter result would be more consonant with the policy underlying the doctrine of fundamentally different deviations. [Back] Note 73 This would explain the dictum in Roberts [2001] EWCA Crim 1594 to the effect that the use of physical force on another person could give rise to a Gilmour-type situation (although Gilmour was not referred to). Unfortunately in D [2005] EWCA Crim 1981 [33] and [34], the Court of Appeal would seem to have interpreted Roberts as authority for a general proposition that D, foreseeing nothing more than actual bodily harm, can be liable for manslaughter if P murders V. [Back] Note 75 [1995] 1 Cr App R 441. [Back] Note 76 This would appear to have been the view of Professor Sir John Smith, who omitted any reference to the case (in this context) in Smith & Hogan, Criminal Law (10th ed 2002). [Back] Note 77 In C [2002] EWCA Crim 3154 and Van Hoogstraten [2003] EWCA Crim 2280 the Court of Appeal assumed that D could be liable for manslaughter in circumstances of this sort, albeit without addressing the impact of Powell and Daniels; English [1999] 1 AC 1. The recent judgment of the Court of Appeal in A-G’s Reference (No 3 of 2004) [2005] EWCA Crim 1882 has confirmed the law as stated in this paper. Nevertheless, in the more recent case of D [2005] EWCA Crim 1981 the Court of Appeal upheld D’s conviction for manslaughter even though P had attacked (and killed) V with the intention to kill or cause serious harm. As noted above (n 73) this would appear to have been on the basis of a misunderstanding of Roberts [2001] EWCA Crim 1594. [Back] Note 79 Direct intention (purpose) or oblique intention (foresight of a virtual certainty). [Back] Note 80 These proposals, if adopted, will replace the inchoate offence of incitement with two new inchoate offences of intentionally encouraging or assisting a crime and knowingly encouraging or assisting a crime. [Back] Note 81 To be replaced by a new offence of causing an offence of strict liability, in tandem with a refined doctrine of innocent (and semi-innocent) agency. [Back] Note 82 For example the shopkeeper in Bainbridge [1960] 1 QB 129. [Back] Note 83 We prefer this term over “joint enterprise”. [Back] Note 84 There are to be some exceptions, for example D would not be liable for knowingly encouraging or assisting another inchoate offence. [Back] Note 85 Or, if the encouragement or assistance was provided contemporaneously with the commission of the principal offence, D knew that the perpetrator was acting with that intention and would continue to do so. [Back] Note 86 An express or tacit agreement, or a shared common purpose, on the part of two or more persons (including D and P) to commit an offence. [Back] Note 87 Giannetto [1997] 1 Cr App R 1, Mercer [2001] EWCA Crim 638. [Back] Note 88 D will be liable for “first degree murder” committed by P even though P is liable for nothing more than a lesser degree of murder (replacing voluntary manslaughter) on the basis of provocation or diminished responsibility or indeed any novel partial defence to murder. [Back] Note 89 See from para 5.79 onwards. [Back] Note 90 The problem may occasionally arise in the context of second degree murder , if defined with reference to “serious harm”, where P intends a life-threatening injury but D contemplates only “minor” serious harm. However, the difference between what D contemplated and what P intended can be taken into consideration when D is sentenced. [Back] Note 91 Howe [1987] AC 417; Gotts [1992] 2 AC 412. [Back] Note 92 Hasan [2005] UKHL 22, [2005] 2 WLR 709. [Back] Note 93 See, for example, the case of Rook (1993) 97 Cr App R 327. [Back] Note 94 See Part 7, paras 7.31-7.32. [Back] Note 95 This means that if there was a joint venture, the defence may be of only limited practical assistance to D (and for that matter P) given the judgment of the House of Lords in Hasan [2005] UKHL 22, [2005] 2 WLR 709. [Back] Note 97 See Stewart and Schofield [1995] 3 All ER 159 and Reid (1975) 62 Cr App R 109. [Back] Note 98 See, for example, the Canadian cases of Jackson [1993] 4 SCR 573 and Kirkness [1990] 3 SCR 74 and the New Zealand cases of Hamilton [1985] 2 NZLR 245 and Rapira [2003] 3 NZLR 794. [Back] Note 99 Involuntary Manslaughter (1996). [Back] Note 100 See Law Com No 237 at pp 47–53 and clause 2 of the draft Involuntary Homicide Bill appended to the Report. In that Report we proposed, amongst other things, a new offence of “killing by gross carelessness” partly modelled on the test for “dangerousness” in section 2A(1) of the Road Traffic Act 1988 (thereby avoiding reliance on the concepts of negligence and duty of care). Part IV of the Report provides an analysis of the moral basis of criminal liability for unintentionally causing death. [Back] Note 101 See cl 2(1)(a) of our draft Involuntary Homicide Bill (ibid). [Back] Note 102 See cl 2(2)(a) of our draft Involuntary Homicide Bill (ibid). [Back] Note 103 That is, in the context of the joint venture, but beyond the scope of what was agreed or intended or foreseen by D. [Back] Note 104 Tomkins [1985] 2 NZLR 253, 255, per Cooke J. [Back] Note 105 [2003] HCA 64 [62], (2003) 219 CLR 1, 24. See also the observation of Sir Robin Cooke in Chan Wing-Siu [1985] AC 168, 178, a case concerning armed burglars, that “disastrous violent action on the impulse of a moment of emergency is very apt to occur when intruders have weapons”. [Back]
