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You are here: BAILII >> Databases >> The Law Commission >> Participating in Crime (Report) [2007] EWLC 305(3) (May 2007) URL: http://www.bailii.org/ew/other/EWLC/2007/305(3).html Cite as: [2007] EWLC 305(3) |
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PART 3
A STATUTORY SCHEME OF SECONDARY LIABILITY
INTRODUCTION
3.1 Under the scheme that we are recommending, D's liability could take one of three forms:
(1) secondary liability for an offence that P commits;[1]
(2) liability as a principal offender for an offence that P does not commit because P is an innocent agent;[2] and
(3) liability as a principal offender for causing P to commit a no-fault offence.[3]
In this Part we focus on secondary liability. We begin by briefly outlining what would be the main features of secondary liability if our recommendations were implemented. We then set out and explain our recommendations for reforming the conduct element of secondary liability. Finally, we consider what should be the fault element of secondary liability.[4]
Preserving the forensic advantages of secondary liability
3.2 In Part 2, we identified a "fundamental feature of the common law".[5] D can be convicted of the principal offence even if the prosecution cannot prove whether, in participating in the offence, D was a principal offender or a secondary party (provided that it can be proved that he or she must have been one or other). The forensic advantages to the prosecution are inestimable because, in joint criminal ventures, the prosecution will often be unable to prove who was the principal offender and who was the accessory. In this respect, our scheme would preserve the common law.[6]
Reflecting the derivative theory of secondary liability
3.3 In Part 2, we also explained how the common law has to some extent departed from the derivative theory of secondary liability.[7] The courts have distanced themselves from the derivative theory:
(1) by holding D liable for a principal offence as a secondary party in circumstances where D procures P to commit the conduct element of the offence but P does not commit the offence because he or she acts without the fault required to be convicted of the offence;[8]
(2) by holding D liable for a principal offence that is more serious than the offence that P commits;[9] and
(3) by holding D liable for a principal offence that P does not commit because, despite satisfying both the external and fault elements of the principal offence, P has a complete or, if the principal offence is murder, a partial defence.[10]
3.4 In Part 4, we will set out our recommendations for replacing the common law doctrine of innocent agency with a statutory regime. As will become apparent, the concept of innocent agency that we are recommending would not be constrained by features of the doctrine that currently confine its scope at common law. As a result, in cases within (1) and (2) above, it would be possible to convict D as a principal offender (rather than by a fiction that D is a secondary party) despite P not having committed the principal offence. We have considered whether, in cases within (3) above, it should also be possible to convict D as a principal offender by virtue of P being an innocent agent. However, for reasons that we explain in Part 4,[11] we do not believe that it would be right to do so. Such cases, therefore, would remain exceptions to the derivative theory of secondary liability.[12]
Narrowing the scope of secondary liability
Example 3A
D observes P amongst a group of youths who are about to attack V. D is pleased because he hates V. On leaving the scene, D is approached by two police officers. They say that they are looking for a group of youths who they have reason to believe are about to carry out an assault. D deliberately points the officers in the wrong direction. Meanwhile P begins to assault V.
Example 3B
D, who does not know P, sees P assaulting D's enemy, V. V tries to run away but D trips him up. P continues the assault on V.
Example 3C
D writes and distributes a racist pamphlet encouraging his readers to attack anyone who is not white skinned. P, a racist himself, is encouraged by the pamphlet and assaults V.
In these examples, D's intention is to assist or encourage P to assault V. However, D and P are not parties to a joint criminal venture because they do not share, either expressly or tacitly, a common intention. It just so happens that both have the same intention that V should be assaulted.
Retaining the doctrine of extended common purpose
3.8 In Part 2, we referred to Chan Wing-siu[13] where the Privy Council held that, where D and P are parties to a joint criminal venture, D can be convicted of a collateral offence committed by P if D foresaw the possibility of P committing the offence. We are aware that some commentators believe that this is very severe on D, particularly if the collateral offence is murder as it was in Chan Wing-siu. However, we believe, both as a matter of principle and on policy grounds, that convicting D on the basis of foresight of a possibility can be justified. We set out our reasons below.[14]
THE CONDUCT ELEMENT
Clause 1: 'assisting' and 'encouraging'
Two kinds of action render [D] liable for the criminal actions of [P]: intentionally influencing the decision of [P] to commit a crime and intentionally helping [P] to commit the crime, where the helping actions themselves constitute no part of the actions prohibited by the definition of the crime."[15]
Recommendation
3.10 We recommend that section 8 of the Accessories and Abettors Act 1861 and section 44(1) of the Magistrates' Courts Act 1980 should be repealed[16] and replaced by a statutory provision which describes the conduct element as 'assisting or encouraging'.[17]
The meaning of 'encouraging'
EMBOLDENING P TO COMMIT AN OFFENCE
3.12 As we stated in the first report, we believe that encouraging should have the same broad meaning that 'inciting' has in the context of the common law inchoate offence of incitement.[18] In particular, we agree with the provisional view expressed in the CP that encouraging should encompass not only instigating and persuading but also conduct that emboldens a person who has already decided to commit an offence.[19] We do so because, as the Commission said in the CP, to embolden P in his or her intention to commit an offence may not only make it less likely that P will desist but is undesirable conduct that conflicts with the citizen's duty to respect legal obligations.[20] We also agree that to make D's liability depend on whether he or she in fact instigated the commission of an offence would result in infinite room for argument.[21]
MAKING THREATS OR EXERTING PRESSURE
3.14 It is clear that at common law incitement can consist of threats and pressure.[22] Although it might be thought to be linguistically inappropriate to describe threatening or coercing as 'encouraging', such conduct ought to be and is caught by the offences that we are recommending.[23] As Simester and Sullivan point out,[24] there is no reason why an employer who persuades an employee to commit an offence by threatening redundancy should be in a better position than an employer whose persuasive technique is to offer a pay rise.
Recommendation
3.15 We recommend that 'encouraging' a person to do an act should include doing so by emboldening, threatening or pressurising another person to do a criminal act.[25]
DEFINING 'ENCOURAGING'
3.17 We are strengthened in our view by the fact that the meaning of incite has rarely troubled the courts. It is true that in the CP the Commission suggested[26] that there was uncertainty as to whether there had to be an element of persuasion or pressure. If there was any uncertainty,[27] it is now clear that there is no such requirement.[28]
The meaning of 'assisting'
3.18 Unlike 'encouraging', in the CP the Commission had no common law inchoate offence to draw upon when considering the meaning of 'assisting'. It said that assisting in its normal sense "extends to any conduct on the part of D that, as a matter of fact, makes it easier for P to commit the principal offence".[29] Having concluded that assisting is a "sufficient and satisfactory concept",[30] it suggested that assistance should include the giving of advice as to how to commit an offence and advice as to how P might avoid detection or apprehension.[31] The Commission invited comment on whether acts of insubstantial assistance should be excluded from the scope of the offence.[32]
ADVICE AS ASSISTANCE
3.19 In A-G v Able[33] the High Court held that the giving of advice was conduct capable of 'aiding and abetting' for the purposes of secondary liability. This can mean that D commits an offence each time a person relies on the advice irrespective of how many persons do so. In the CP the Commission noted that the law had been strongly criticised in this respect because it:
gives too great an extension to criminal complicity. If the writer of the letter was guilty the first time his information was used, he would be guilty the nth time, which is absurd.[34]
ACTS OF INSUBSTANTIAL ASSISTANCE
3.21 In the CP, the Commission said that if it was D's purpose to facilitate the commission of an offence, D should be liable whether or not the assistance was substantial.[35] We invited comment on whether liability should be limited to substantial assistance if the fault elements of the inchoate offence of assisting crime were to be extended beyond purpose or intention.[36] The majority of respondents thought that it should be irrelevant whether the assistance was substantial. We agree.
3.22 We think that to introduce such a requirement would lead to uncertainty and difficulty. It would require juries and magistrates to 'seek to assess how extensive a contribution the assistance would have been (or was) in bringing about the principal offence'.[37] Further, as we said when discussing the meaning of 'encouraging', we are recommending that if D is not a party with P to a joint criminal venture, he or she should be liable for the principal offence only if he or she intended that P should engage in its conduct element. If D has that intention, we do not believe that it should be necessary that his or her conduct amounts to substantial or direct assistance. Accordingly, D should be liable if his or her act assists or encourages to any extent. The marginal nature of any assistance or encouragement can be reflected in the sentence or, in cases of murder, the length of the minimum term set by the trial judge.
Specialisation also permits crimes of diffusion, where the responsibility for a single crime is spread over many persons… diffusion can… remove internal restraints to crime. … a person who drives a person from Point A to Point B may not feel that he is doing something gravely immoral, even when the driver is driving away from the scene of the crime… the forces of morality and social norms are thus subverted through strategies that disaggregate human behaviour, playing on the idea that little bad acts are excusable.[38]
'Actual' encouragement or assistance
3.24 In order for D to be held liable for the principal offence, his or her conduct would have in fact to have encouraged or assisted P at the time that P engaged in the conduct element of the principal offence.[39] The burden of proof would be on the prosecution to prove that P was assisted or encouraged. However, whether P was in fact assisted or encouraged should only be an issue if there is evidence before the court, as in example 2N,[40] realistically to suggest that P might not have been.
Omissions as acts capable of encouraging or assisting
3.25 In the first report, we said that determining the circumstances in which a person should incur criminal liability for an omission involves difficult policy issues. In the context of secondary liability, Professor Ashworth says that 'the key question is simple to state: can a person be convicted as an accomplice merely for standing by and doing nothing when an offence is being committed?'[41]
The prohibition of omissions is far more intrusive upon the individuals' autonomy and freedom than is the prohibition of acts, which is why the systematic imposition of (criminal or civil) liability for failures to act is to be resisted.[42]
3.27 However, the general rule of common law is subject to an important exception. Provided an offence is capable of being committed by inaction, a person may commit the offence if he or she is under a duty to act but refrains from doing so.[43] In the context of secondary liability, the law has focused on three issues:
(1) the extent to which and the circumstances in which D can incur secondary liability by virtue of mere presence when P commits an offence;
(2) whether D can incur secondary liability by failing to take steps to discharge a duty;[44] and
(3) whether D can incur secondary liability by failing to exercise an entitlement to prevent or control the actions of P.[45]
3.28 The law in relation to (1) is reasonably clear:
Example 3D
D is on a bus when a passenger P starts to assault another passenger V. D remains in his seat and continues to read his newspaper.
D, provided that he takes no positive action to encourage or assist P, is not an accessory to the assault because he is under no legal obligation to act in order to prevent P assaulting V.
Example 3E
D comes across P who is about to rape V. V pleads for D to help her but D passes by. P rapes V.
Again, D incurs no criminal liability for declining to go to V's aid. By contrast, if D takes the positive step of stopping in order to watch P rape V, D will be guilty of rape if the jury find that D intended to encourage P to commit rape and that P was in fact encouraged by D's presence.[46]
Example 3F
D and P are the parents of V. P tells D, who is watching television, that he is going to drown V in the bath. D continues to watch television while P drowns V.
D is guilty of murder if he intended V to be drowned by P because, by omitting to intervene, he failed to take appropriate steps to discharge his parental duty to secure the safety of V.
3.30 The law in relation to (3) is far less clear. There have been specific instances where the courts have held D to be secondarily liable for failing to control the actions of others.[47] However, it is open to question whether any general principle can be derived from those cases.[48]
THE PROPOSALS IN THE CP
3.31 In the CP, the Commission distinguished encouraging, on the one hand, and assisting, on the other. It provisionally concluded that it ought not to be possible to assist crime by failing to discharge a duty or by failing to exercise an entitlement to prevent or control the actions of P.[49] The justification for this limitation was threefold. First, it would bring certainty. Secondly, it would prevent the scope of the offence being unreasonably wide. Finally, it would mean that liability for encouraging and assisting would be in line with the general principles of the criminal law.
3.32 By contrast, the Commission provisionally concluded that the proposed inchoate offence of encouraging crime could be committed by inaction.[50] The Commission thought that it would neither be unreasonable nor make the law dangerously wide if encouraging encompassed omissions.
RESPONSES TO THE PROPOSALS IN THE CP
3.33 The majority of respondents who addressed this issue did not accept the proposition that failing to discharge a duty to prevent or control P's actions should never be regarded as 'assisting'. Respondents accepted that an unqualified criminalisation of omissions that assist crime would unreasonably widen the law, for example the view that failing to assist a constable to prevent a breach of the peace should represent assisting a breach of the peace.[51] However, they believed that a blanket rule that omissions can never constitute 'assistance' would result in greater injustice.
CONCLUSIONS AND RECOMMENDATIONS
Failure to discharge a duty
Recommendation
3.36 We recommend that encouraging or assisting a person to do a criminal act should include doing so by failing to take reasonable steps to discharge a duty.[52]
Failure to assist a constable to prevent a breach of the peace
3.37 At common law every citizen is under a duty to respond to a constable's request for assistance to prevent a breach of the peace.[53] We do not believe that it would be thought to be either desirable or acceptable for citizens to incur inchoate liability merely for failing to respond to such a request.
Recommendation
3.38 We recommend that a person failing to respond to a constable's request for assistance in preventing a breach of the peace should not be regarded as encouraging or assisting a person to do a criminal act.[54]
Failure to exercise an entitlement to prevent or control the actions of P
3.39 We said in the first report that it would be an over-extension of the criminal law if D could be inchoately liable on the basis that he or she had refrained from exercising an entitlement to prevent or control P's actions.[55] We emphasised that the new offences that we were recommending were inchoate offences capable of being committed even if the principal offence is not committed.
3.40 Every citizen is entitled to use reasonable force to control the actions of P in order to prevent P committing an offence.[56] However, we do not think it would be acceptable if D could be criminally liable for encouraging or assisting P to commit a crime merely because D failed to take action to prevent P committing the crime.
Example 3G
D, who has a telephone, is awoken by a noise coming from his garden. Opening the window, D asks P what he is doing. P replies 'go back to bed'. D, although believing that P is about to commit an assault on V, goes back to bed. P, encouraged by D's non-intervention, proceeds to assault V.
It might be thought that D's conduct is callous and displays a lack of empathy for V. In itself, this is not to justify the imposition of criminal liability. In this kind of example, if D could be made criminally liable for his failure to intervene, it would be a case of imposing liability because D was not being a good samaritan or 'busy body'. That is potentially far too harsh a consequence in such cases of non-intervention.[57]
Clause 2: Joint criminal ventures
'Agreed' offences
Example 3H
D and P agree to commit a burglary at V's premises. D drives P to the premises and keeps watch while P enters V's property and steals her jewellery.
D's conduct has assisted P to commit burglary.
3.45 Promises and agreements are forms of social and normative practice, entry into which in and of itself creates obligations, commitments and expectations as to future conduct (here, playing some part in the offence, even just by 'making up the numbers'). It is the creation of these obligations, commitments and expectations through simple agreement or shared intention that provides a basis for finding D liable under clause 2.[58] When D engages in the normative practice, by agreeing to commit the offence or sharing an intention to commit an offence, he or she should not be heard to say later that his or her agreement or shared intention did not have the normative significance it would ordinarily have in terms of obligations, commitments and expectations created. D can no more escape liability in this way than, in the civil law, someone can say that no contractual liability was ever created by a binding agreement simply because no one expected the contract to be fulfilled or relied on.
'Collateral' offences
THE DOCTRINAL ISSUE
3.47 One view holds that it is doctrinally unsound to seek to base D's liability for a collateral offence on D having assisted or encouraged P to commit it. In the CP, the Commission inclined to this view. It thought that the 'ordinary rules of secondary liability do not wholly overlap with joint enterprise cases'.[59] The Commission's reasoning was that the basis of secondary liability is 'actual acts of assistance and encouragement'[60] but that in the case of a collateral offence D does not in fact assist or encourage P to commit that offence:
Example 3J
P and D agree to supply X with a class A drug (heroin). D knows that P has dealt in illicit pornography and anticipates that should X ask for child pornography, there is a real risk that P will supply it. D urges P not to do so. P agrees not to, but D still has his concerns. Nevertheless, D proceeds with the venture. As D feared, X asks for the child pornography and P supplies it.
On the Commission's view, as set out in the CP, although D had assisted or encouraged P to supply a class A drug, D had not assisted or encouraged the supply of the pornography. Indeed, D had sought to discourage it. Yet, D is guilty of supplying child pornography.[61]
3.48 Some commentators take the same view. According to Simester and Sullivan:
… the actus reus requirements of joint enterprise liability differ from those applying to participation by assistance or encouragement. There is no need to show a common purpose in standard cases of aiding and abetting. But it is [D]'s commitment to that common unlawful purpose (to commit crime A) which justifies the law's requiring only that [D] must foresee the possibility of crime B, rather than demanding that [D] must help or encourage crime B … .[62]
Example 3K
D and P have agreed to commit a burglary. D realises that there is a possibility that P might also murder the householder, V, should V disturb them. D tells P in the strongest terms that P should not do so. D drives them to V's house where in the course of committing the burglary they are disturbed by V. In order to ensure that they are not identified, and despite D's protestations, P murders V.
It is true that D did not intend that P should murder V or that P should be assisted or encouraged to do so. However, whether or not P is in fact assisted or encouraged by D's conduct is not dependent on D's attitude towards the commission of the collateral offence. By driving P to the house, D has assisted P to commit not only burglary but also murder.
Through entering into a joint [criminal venture], [D] changes her normative position. [D] becomes, by her deliberate choice, a participant in a group action to commit a crime. Moreover her new status has moral significance: she associates herself with the conduct of the other members of the group in a way that the mere aider and abettor, who remains an independent character throughout the episode does not. Whereas aiding and abetting doctrines are grounded in [D's] contribution to another's crime, joint [criminal venture] is grounded in affiliation. [D] voluntarily subscribes to a co-operative endeavour, one that is identified by its shared criminal purpose. As such, joint [criminal venture] doctrines impose a form of collective responsibility, predicated on membership of the unlawful concert… By offering allegiance to the enterprise, [D] implicitly condones its furtherance.[63]
"she [S] accepts responsibility for the wrongs perpetrated in realising… that [common] purpose. Her responsibility for incidental offences is not unlimited: S can not be said to accept the risk of wrongs by P that she does not foresee, or which depart radically from their shared enterprise, and joint enterprise liability rightly does not extend to such cases."[64]
3.53 We agree that D should not be liable for radical departures on the part of P from the joint criminal venture.[65] However, we do not accept that the only collateral offences for which D may be made liable are those "perpetrated in realising" or that "grow out of"[66] the agreed offence. In our view, it ought to be possible to hold D liable for a collateral offence committed by P, even when the offence did nothing to further the joint criminal venture, if D was aware that the commission of that offence was just the sort of thing that P might do.
Example 3L
D commits burglaries with P, even though D knows that P has convictions for raping householders. D has said to P that he (D) wants nothing to do with any rape. In the course of one of their burglaries, unknown to D, P commits rape. [67]
3.54 By contrast, Smith and Hogan maintain that:
The only peculiarity of joint [venture] cases is that, once a common purpose to commit the offence in question is proved, there is no need to look further for evidence of assisting and encouraging. The act of combining to commit the offence satisfies these requirements of aiding and abetting. Frequently it will be acts of encouragement which provide the evidence of the common purpose. It is simply necessary to apply the ordinary principles of secondary liability to the joint [venture] … .[68]
3.56 Ultimately, however, the differences between these accounts of D's liability for a collateral offence committed by P, while real enough, do not produce sufficiently significant differences in practice for it to be important for us to choose between them. In fact, we doubt whether each theory satisfactorily explains all the possible scenarios. As we have already acknowledged above,[69] the vast majority of agreed offences will be committed by P in circumstances where there can be no argument that there has been some degree of assistance or encouragement on the part of D. Likewise, there will be many collateral offences committed by P in circumstances where it is clear that D has assisted or encouraged P to commit the offence. However, unlike Smith and Hogan, we acknowledge the viability of the view that offences committed pursuant to a joint criminal venture can be committed without any actual assistance or encouragement by D.
Criminal associations tend to encourage and escalate criminality. They present a threat to public safety that ordinary criminal prohibitions, addressed to individual actors, do not entirely address.[70]
We agree. The truth of this observation is what, on our view, justifies holding that the act of agreeing to participate in a joint criminal venture should suffice to satisfy the conduct element of secondary liability for all offences arising from that venture.
Recommendation
3.59 We recommend that, for D to satisfy the conduct element of clause 2, he or she must either:
(1) agree with P to commit an offence; or
(2) share a common intention with P to commit an offence.
Negating the effect of assistance, encouragement or agreements pursuant to a joint criminal venture
3.60 Under the recommendations in our first report, as soon as D does an act capable of assisting or encouraging P to commit the principal offence, he or she would be inchoately liable for assisting or encouraging P to commit the offence.[71] Under the current law and under the recommendations in this report, D would be secondarily liable if P goes on to commit the principal offence.[72] It would not avail D that he or she either regretted his or her act of assistance or encouragement, or, in the case of joint criminal ventures, no longer considered him or herself to be part of the venture.
Example 3M
D, seeing P attacking V, hands P a baseball bat. Mid fight, P does not realise that it was D that handed him the bat, but is happy to make use of it. However, regretting his act, D quickly takes the bat back before P can use it in the assault. P continues the assult on V.
In this example, it should be open to D to argue that, by taking back the bat before it was used in the assault, he successfully negated the effect of his conduct: the assistance.
3.63 Let us consider an example involving a joint criminal venture:
Example 3N
D and P agree to commit robbery the following week. They agree to meet at the scene of the crime and that D will bring weapons. The following day D has second thoughts and leaves the country without telling P. P arrives at the place where the robbery is to take place. Finding that D is absent, P nevertheless goes on to commit the robbery.
In this example, as in example 3M above, it should be open to D to contend that he negated the effect of his assistance (in this case by not providing weapons). However, D has not negated the effect of his agreement with P to take part in a joint criminal venture. Under the current law and under the recommendations in this report, D would therefore be guilty of robbery.[73] The law regards P as deriving tacit support from the fact that (so far as P knows) D is still 'in on it' and D has done nothing to withdraw or 'neutralise the effect'[74] of his previous agreement/support. Although D may have withdrawn his assistance, D is still to be regarded as part of the joint criminal venture.
3.64 As examples 3M and 3N above demonstrate, it is likely to be harder for D to successfully countermand the effect of his or her conduct in cases of joint criminal ventures. This is because, as well as negating any assistance or encouragement provided, D must also negate the effect of his or her agreement with P to commit an offence.[75]
Recommendation
THE FAULT ELEMENT
3.68 In this section, we set out our recommendations for the fault element of secondary liability. Our treatment of the fault element reflects the fact that we believe that there is an important normative difference between cases where D and P are parties to a joint criminal venture and those where they are not. The draft Participating in Crime Bill appended to this report reflects this view in that clause 1 addresses D's liability in cases where D and P are not parties to a joint criminal venture whereas clause 2 deals with joint criminal ventures.[76] As will become apparent, clause 1 consists of more stringent fault requirements than clause 2.
3.69 The order of treatment of the issues is as follows:
(1) Clause 1: assisting and encouraging an offence.
D's state of mind in relation to the conduct element of the principal offence (paragraphs 3.70 to 3.97).
D's fault in relation to elements of the principal offence other than the conduct element (paragraphs 3.98 to 3.122).
(2) Clause 2: participating in a joint criminal venture.
Introduction, and why a distinct clause 2 is necessary (paragraphs 3.123 to 3.126).
D's state of mind in relation to the conduct element of the principal offence (paragraphs 3.127 to 3.152).
When P's conduct is outside the scope of the venture (paragraphs 3.153 to 3.166).
D's fault in relation to elements of the principal offence other than the conduct element (paragraphs 3.167 to 3.169).
Clause 1: assisting or encouraging an offence
D's state of mind in relation to the conduct element of the principal offence
THE CURRENT LAW
3.70 In Part 2,[77] we observed that the preponderance of common law authority suggests that D may be convicted of the principal offence as a secondary party even if:
(1) it was not D's purpose to encourage or assist P to commit the principal offence; and
(2) it was not D's intention that the principal offence should be committed.
Example 3P
P, a local teenage boy, enters D's shop to buy a kitchen knife. D knows that P has a number of previous convictions for robbery, and although she does not want him to, she believes that he will use the knife for another robbery. Nevertheless, D sells P the knife, which P subsequently uses in a robbery.
At common law, D is guilty of robbery despite not intending that P should commit the offence.
3.72 As a result, under the current law, the doctrine of secondary liability has the potential to capture those engaging in ostensibly innocent conduct including, for example, shopkeepers selling their merchandise, employees acting in the course of their employment and hosts dispensing alcohol to guests who will be driving home. On one view, such a broad concept is appropriate because, in order to protect the potential victims of crime, traders, employees and hosts should ensure that they do not encourage or assist P to commit offences. Professor Ashworth says that this view "criminalises the shopkeeper as an accomplice in every case where the customer's intention to commit that kind of offence is known"[78] and he describes the current law as supporting "a more social and less individualistic notion of responsibility".[79]
This stresses the notions of free trade and individual autonomy, treating the shopkeeper as a mere trader rather than as a fellow citizen's keeper.[80]
A NEW APPROACH
3.75 In the first report,[81] we recommended the creation of inchoate offences to punish conduct that assists (or encourages) others to commit offences. In particular, we recommended that there should be an inchoate offence of assisting (or encouraging) P to commit a principal offence if D believed that P would commit the offence with D's assistance (or encouragement). The enactment of such offences would mean that, in cases of assistance, the present limited choice between either convicting D of the principal offence or exonerating D could be replaced by a more nuanced scheme of liability. Under such a scheme, the choices would lie between convicting D of the principal offence (secondary liability), convicting D of assisting or encouraging the principal offence (inchoate liability) or exonerating D. The middle option would permit the conviction of D in example 3P while still recognising that his culpability is not equivalent to that of P.
3.76 Such a scheme needs to address two fundamental questions:
(1) what attitude must D have towards the commission of the principal offence before he or she can properly be convicted of that offence and, thereby, liable to the same stigma and penalties as P?
(2) what degree of knowledge or belief as to P's intention to commit the principal offence must D have before he or she can properly be convicted of that offence?
THE ATTITUDE OF D TOWARDS THE COMMISSION OF THE PRINCIPAL OFFENCE
Intending P to engage in the conduct element of the principal offence
3.77 It is important to acknowledge that, where D and P are not parties to a joint criminal venture, the conduct of D that constitutes assistance or encouragement may not be inherently wrong or harmful.[82] In example 3P, there is nothing inherently wrong or harmful in D selling a kitchen knife to P. Therefore, if P uses the knife to rob V, D ought not, without more, to be held responsible for the attack on V.
The most a secondary party does is assist or encourage a crime, not perpetrate it. Since this is [a] far less stringent contribution than is required of the perpetrator, it is insufficient in itself to involve [D] in P's crime. D's conduct is, by itself, innocent and not a wrong at all – she does something that is permitted, e.g. lend or sell P a knife, say, or a jemmy – something that we may do innocently in ordinary life. Conduct of this sort has no inherent or necessary connection to crime.
When computer manufacturers make and sell computers, there is a recognised chance that their customers will use the machines to download and copy music illegally. Yet no one would say that those manufacturers are responsible for the illegal copying. Simply put: if my action is lawful and not wrong, someone else's crime does not become my lookout – and should not be my moral or legal responsibility – simply because I foresee its possibility. Something more is required.[83]
We agree. The issue is what the "something more" should consist of.
3.79 On one view, it ought to be possible to convict D of the principal offence if D knows or believes that P will commit the principal offence. We agree that it ought to be possible to hold D criminally liable if he or she assists or encourages P in the knowledge or belief that P will commit the principal offence. However, D ought to be held inchoately liable and not secondarily liable, that is, D should be convicted of assisting and encouraging P to commit the principal offence rather than convicted of the principal offence itself. The recommendations that we made in the first report would enable D to be held inchoately liable.[84] However, if D is to be convicted of the principal offence, something further should be required.
Example 3Q
D sees that P is about to throw a small stone at V. X is about to shout a warning to V. However, D, who dislikes V, puts his hand over X's mouth to stifle the warning. P throws the stone at V. P, who is unaware of D's presence and intervention, believes that V may suffer a minor injury as a result of being hit by the stone. Neither D nor P intend or foresee a risk of V suffering serious injury. Unfortunately, as P throws the stone, V ducks and the stone hits V in the eye. V suffers a serious injury.
P has committed the principal offence of unlawfully and maliciously inflicting grievous bodily harm.[85] It is a constructive liability offence because P can be convicted of the offence despite only intending or foreseeing that V might suffer some bodily harm. The fact that P neither intended nor foresaw that V would or might suffer serious bodily harm is irrelevant. [86]
3.82 In example 3Q, D did not intend (or foresee) that P should commit the principal offence of unlawfully and maliciously inflicting grievous bodily harm because, like P, he did not intend (or foresee) that V would suffer serious bodily harm. However, if P can commit the principal offence without intending (or foreseeing) the consequence element of the offence, parity of culpability does not require that D must have intended (or foreseen) that V might suffer serious bodily harm. It should suffice that D, foreseeing that V might suffer a minor injury, intended P to engage in the conduct element of the principal offence, namely throwing a stone.[87]
3.83 It is for this reason that clause 1 of the draft Bill, rather than requiring D to intend P to commit an offence, states that D must intend a person to do a 'criminal act'. 'Criminal act' in reference to a principal offence means any act that falls within the definition of the conduct element that must be proved in order for a person to be convicted of a principal offence.[88] A simple example is the offence of rape where the conduct element consists of penile penetration of the vagina, anus or mouth.[89]
The meaning of 'intent'
3.85 Consider this further example:
Example 3R
P enters D's shop and asks to buy a baseball bat. P tells D that he has just discovered his wife, V, in bed with the lodger and that he intends to use the bat to 'teach her a lesson that she will never forget'. D has no doubt that P will use the bat to attack V. However, D decides to sell P the bat. P uses it to attack V.
The facts of example 3R can be fleshed out in different ways. D, with no financial pressures, decided to sell the bat simply because he was indifferent as to whether P used it to attack V. Alternatively, D may even have hoped that P would use it to attack V because V had previously been having an affair with D which she ended in order to have one with the lodger. In such circumstances, a jury might consider D's culpability to be greater than that of P. On the other hand, suppose that D had just received a final demand concerning a mortgage payment, which threatened eviction. D's role can now be (potentially) reinterpreted as an individual under financial pressure who may not want P to commit the offence but who is unwilling to turn down a profitable transaction. In such circumstances, a jury may consider D's conduct to be blameworthy, but not comparable to that of P.
3.86 In the context of the law of murder, the common law has developed a special rule for determining the liability of P in cases where P, although not having acted in order to bring about a result (death of a human being), nevertheless had an especially high level of culpability. The rule is that a jury may - but are not compelled to – find that P intended a result if he or she believed that it would be a certain consequence (barring some extraordinary intervention) of his or her actions irrespective of whether it was a desired consequence.[90]
3.87 Following our review of the law of homicide, we have recently published a report[91] in which we have recommended that the existing law in relation to the meaning of 'intention' should be codified. A jury should be directed that an intention to bring about a result may be found if it is shown that the defendant believed that the result was a virtually certain consequence of his or her action.[92]
3.88 We believe that a similar rule should apply for the purposes of determining D's liability for a principal offence committed by P, murder or otherwise. For the purposes of this rule, the intended 'result' is the commission by P of the conduct element of the principal offence. Accordingly, if a jury found that D believed that, with his or her assistance or encouragement, it was 'virtually certain' that P would engage in the conduct element of the principal offence, they would be entitled - but not compelled - to find that D 'intended' that P should do so. As with determining P's liability, foresight of virtual certainty is a basis for finding 'intent' but it is not a substitute for 'intent'.[93]
3.90 The recommendations that we made in the first report would cater for cases where a jury, despite being of the view that D believed that it was 'virtually certain' that P would commit the conduct element of the principal offence, declined to make a finding of 'intent'. As we indicated above,[94] our recommendations would enable D to be held inchoately liable for assisting or encouraging P to commit the principal offence.
Recommendation
3.92 The following example illustrates how the recommendation would apply:
Example 3S
D's neighbour, V, is away for the weekend. D, who hates V, leaves a note pinned to a side gate of V's house saying that there is a valuable lawnmower that is in V's garden. D does so in the hope that somebody will steal it. P sees the note and enters V's garden. However, there is no lawnmower. P notices a garden shed and goes in. The lawnmower is there and P takes it.
P is guilty of burglary. The conduct element of burglary is entering a building as a trespasser, and the garden shed is a building. As it was not D's intention that P should enter the shed D is not guilty of burglary. However, D is guilty of theft. The conduct element of theft is the appropriation of property and it was D's intention that P should appropriate the lawnmower.
3.93 Our recommendation would provide a more focused and precise means of determining D's liability than the common law Bainbridge[95] test. If the Bainbridge test was applied to example 3S, the issue would be whether burglary and theft were offences of the same 'type'. Under our recommendation, it is immediately apparent that P's act of entering the shed falls outside the conduct element of the offence that D was seeking to assist P to commit.
Must D intend that it should be P, as opposed to some other person, who commits the conduct element?
Example 3T
In return for payment, D lends a gun to X so that X can shoot V, a local paedophile. X falls ill and, instead, it is his brother P who uses D's gun to murder V.
Example 3U
D hires X, a freelance assassin to murder V, a rival gang leader. X is offered a more lucrative contract to murder Z. X decides to sub-contract the murder of V to P, another freelance assassin. P carries out the murder.
In each example, D ought to be liable as a secondary party. D is as culpable as he or she would have been had X not fallen ill or not been offered a more lucrative assignment.
Recommendation
3.95 We recommend that, although D must intend that the conduct element of the principal offence should be committed, D need not intend that it should be P who commits it.[96]
D'S KNOWLEDGE OR BELIEF AS TO WHETHER P (OR ANOTHER PERSON) WILL COMMIT THE CONDUCT ELEMENT
Example 3V
D provides P with a gun intending that P should use it to murder V. However, D believes that P lacks the 'bottle' to murder V. In the event, P murders V.
D intended P to commit murder. It ought not to be open to D to submit that he or she should be exonerated merely because of doubts as to whether P would act on D's assistance or encouragement.
Recommendation
The fault required of D in relation to the essential elements of the principal offence other than the conduct element
Example 3W
In return for payment, D agrees to act as lookout while P takes V's vehicle. P takes the vehicle.
If P intends to permanently deprive V of the vehicle, P commits theft.[97] By contrast, if there is no intention to permanently deprive, P is guilty of taking a motor vehicle without the authority of its owner.[98] In order to determine accurately of which principal offence D ought to be convicted, it is essential to consider D's knowledge or belief as to whether P intended to permanently deprive V of the property.[99]
FAULT IN RELATION TO P'S LIABILITY
3.105 The criminal law recognises different fault elements, the most important of which are intention, knowledge, recklessness and negligence. Broadly speaking, since the decision in G,[100] the first three involve consideration of P's state of mind. By contrast, P's state of mind may not be relevant to negligence. Thus, if an offence requires that P, in order to avoid conviction, must reasonably believe in the existence of a circumstance, for example that V is of or over a specified age, P will not escape liability if a reasonable person would not have believed V to be of that age even if P honestly believed that V was of that age.
3.107 However, in two recent decisions,[101] the House of Lords, when considering the circumstance elements of statutory offences has emphasised that there is a presumption that in order to be convicted of a statutory offence, P must be at fault in relation to its circumstance element. Lord Nicholls referred to:
… the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication.[102]
3.108 However, judicial enthusiasm for a fault element has not extended to constructive liability offences. These are offences where P can be convicted despite not being at fault in relation to the consequence element of the offence. Thus, P can be convicted of murder without having to intend or foresee a risk of death. It suffices if he or she intended to cause serious bodily harm. Likewise, P can be convicted of unlawfully and maliciously inflicting grievous bodily harm[103] without having to intend or foresee a risk of grievous bodily harm. It suffices if P foresaw the risk of inflicting some harm.[104]
FAULT IN RELATION TO D'S LIABILITY
3.109 There are three possible approaches:
(1) there should be a more demanding fault element for D than P;
(2) D must satisfy the same fault element as P;
(3) D must believe that P, in committing the conduct element of a principal offence, would be committing the offence.
A more demanding fault element for D than P
Example 3X
P tells D that he is going to a party which V will be attending. P tells D that he is very attracted to V. D, who has never met V, encourages P to have consensual sexual intercourse with her. V tells P that she is aged 15 but, in fact, she is aged 12. With V's consent, P has sexual intercourse with her.
P has committed the offence of rape of a child under 13.[105] The offence is a no-fault offence and the fact that V consented to sexual intercourse and that P believed that V was 15 is irrelevant. By way of contrast, under the current law, D would be liable only if he or she knew or believed that V was probably under 13. That would continue to be the case under this approach.
Example 3Y
D, a gang leader, orders one of his minions, P, to pay a visit to V who both D and P know suffers from a serious heart condition. The intention of the visit is to put 'the frighteners' on V. V is so frightened by the visit that he has a heart attack and dies.
P is guilty of manslaughter.[106] If P is guilty of manslaughter, it is right that the (in a broad sense) more culpable party, D, should also be convicted of the offence.
The same fault element for D and P
Example 3Z
D gives P the address of V knowing that P wants to assault V. D dislikes V and hopes that P will attack V but merely so as to cause V less than serious harm. However, D believes that P intends to cause V serious bodily harm. P attacks V and, as D anticipated, intentionally causes V serious bodily harm.
P is guilty of causing grievous bodily harm with intent.[107] Under the current law, D is also guilty of the offence because, although it was not D's intention that V should suffer serious bodily harm, he believed that it was P's intention to cause serious bodily harm. However, if D's fault had to be the same as P's, D would no longer be liable because he did not intend that V should suffer serious bodily harm.
D must believe that P, in committing the conduct element of an offence, would commit the offence[108]
Example 3AA
In return for payment, D acts as lookout while P takes V's car without V's consent. P intends to permanently deprive V of the car.
P has committed theft. D ought to be guilty of theft provided he or she believed that P, in taking the car, intended to permanently deprive V of it. However, if D believed that P did not intend to permanently deprive, D ought not to be guilty of theft but, rather, of taking a motor vehicle without the authority of its owner.
Example 3BB
D provides P with a baseball bat that P uses to intentionally cause grievous bodily harm to V.
In this example, D ought to be guilty of causing grievous bodily harm with intent provided that, when giving V the baseball bat, he believed that P, in using it to attack V, would do so with the intention of causing V serious bodily harm. D ought not to be guilty of the offence if he believed that P intended to inflict less than serious harm. In such a case D would be guilty of assault occasioning actual bodily harm, a lesser offence included within the greater offence, because D believed that P would attack V with the fault required to be convicted of that offence.
3.118 By contrast,
Example 3CC
D and P live in a village 20 miles from the nearest hospital. D's wife is in labour and D is disqualified from driving. D knows that P had also been disqualified from driving but believes that P's disqualification has expired. D offers P £100 to drive D's wife to the hospital. P agrees to do so believing wrongly that his disqualification has expired.
In this example, P has committed the no-fault offence of driving while disqualified. However, D ought not to be guilty of driving while disqualified because he did not believe that P was committing the offence.
3.119 We acknowledge that in one respect, this might be thought to be too generous to D. In examples 3X and 3CC, P is guilty of a no-fault offence but D would not be. Nevertheless, we do not wish to see the scope of no-fault liability extended to secondary parties. As we state in Appendix B,[109] typically where an offence consists of a conduct and a circumstance element, the conduct element consists of an activity that in itself the law has no reason to punish. We acknowledge that there can be legitimate policy reasons for holding the perpetrator of the conduct liable despite he or she not being at fault in relation to the circumstance element. However, we are not persuaded that the same reasons apply with equal force to those whose conduct has only assisted or encouraged the perpetrator of the conduct.
Example 3DD
D and his daughter P, aged 16, are walking in the town when D sees V drop a £20 note. P then asks D if she may pick up and keep the note. D says 'yes go on' even though he realises that the note could easily be returned to V who is still standing nearby, because he thinks that P believes the note is lost and the owner untraceable. In fact, P did see V drop the note and is aware that V is still nearby.
In this example, P is almost certainly guilty of theft because she realised that the £20 note could easily be returned to its owner.[110] However, D thinks that P would not be acting with the fault element for theft, because D mistakenly thinks that P herself is acting in an honest way in picking up the note. So clause 1(2) would not be satisfied in this example because P does not think 'a person doing the act would commit the offence'. Nonetheless, clause 1(3) is satisfied because D's state of mind is such that had he done the act he would have committed the offence. Had D pocketed the note, he would have done so realising that it could easily be returned to its owner and that (barring exceptional circumstances) satisfies the test for dishonesty in theft. Accordingly, by virtue of clause 1(3), D participates in the theft committed by P.
Recommendation
3.122 We recommend that for D to be convicted of a principal offence that P commits:
(1) D must believe that P, in committing the conduct of the offence, would be committing the offence; or
(2) D's state of mind is such that, were he or she committing the conduct element of the offence, he or she would commit the offence.
Clause 2: participating in a joint criminal venture
Introduction
3.125 However, we can identify at least two kinds of case involving an agreed offence which would only fall within clause 2. The first kind is where the prosecution can show that D shared a common intention with P to commit an offence but cannot show that D provided P with any specific piece of assistance or encouragement. The second kind is the case where, despite agreeing with P to commit offence x and intending to assist or encourage P, D nevertheless does not intend that the conduct element should be committed. An example of this second kind is Rook[111] in which D was involved in a plan with P and others to murder V. At his trial, D testified that he did not intend that V should be killed. He said that he became involved in the hope of making some money. He claimed it was his belief that if he did not turn up on the day of the murder, P would refrain from committing the murder.[112]
3.126 In Rook the Court of Appeal held that D can be convicted of the agreed offence if he or she foresaw that it might be committed even if he or she did not intend that it would be committed. Previously, in Chan Wing-siu[113] the Privy Council had held that D could be convicted of a collateral offence if he or she foresaw that it might be committed even if he or she did not intend that it should be committed. In this respect in joint criminal venture cases, English law makes no distinction between the agreed offence (or offences) and collateral offences. Consequently, clause 2 (and the discussion that follows below) does not distinguish between the agreed offence (or offences) and collateral offences. Instead, clause 2(2) speaks simply of any 'criminal act [that] falls within the scope of the venture'. We have avoided the use of more intricate clauses which would have distinguished between agreed and collateral offences. Such clauses would have made the Bill too unwieldy and complex. The Bill, and clause 2 in particular, seeks to set out the law in a simple and intelligible manner.
D's state of mind in relation to the conduct element of the principal offence
THE ATTITUDE OF D TOWARDS THE COMMISSION OF THE CONDUCT ELEMENT
3.128 We are recommending that very different principles should govern D's liability for offences committed by P pursuant to a joint criminal venture. In particular, D should not have to intend P to commit the conduct element of the principal offence (irrespective of whether the principal offence is the agreed offence or a collateral offence).[114] The reasons why, in cases where there is no joint criminal venture, D should not be convicted of P's offence unless he or she intended P to commit the conduct element do not apply where D and P are parties to a joint criminal venture. This is so even in the very unusual instance where the offence committed is the offence that D and P agreed to commit but D did not intend P to commit.[115] Although it might be said that, if D did not intend that the agreed offence should be committed, there was no 'shared criminal purpose', what is crucial is the fact that D agreed with P to commit the offence.
3.129 As we have said,[116] entering into an agreement with someone to commit an offence (or sharing a common intention with them to commit it) makes a distinct normative difference to D's position in point of liability. Such conduct on the part of D in and of itself creates obligations, commitments and expectations as to future conduct sufficient in themselves to justify imposing criminal liability on D where those obligations, commitments and expectations concern the commission of offences.
3.130 In saying this, we are not necessarily saying that joint criminal venture liability is doctrinally distinct from 'standard forms of secondary liability'[117] based on 'aiding, abetting, counselling or procuring' the commission of an offence. In arriving at our recommendations, we have not considered it necessary to express a preference for any of the competing views on the doctrinal issue.[118] Rather, we believe that the importance of any doctrinal difference is secondary to the normative difference that exists between joint criminal venture liability and other forms of secondary liability. It is this normative difference which underpins the recommendations in this report.
3.131 Professor Simester has explained the normative difference in the following way. We have in part already set it out[119] but it bears repetition:
Through entering into a joint enterprise, [D] changes her normative position. [D] becomes, by her deliberate choice, a participant in a group action to commit a crime. Moreover her new status has moral significance: she associates herself with the conduct of the other members of the group in a way that the mere aider and abettor, who remains an independent character throughout the episode does not. Whereas aiding and abetting doctrines are grounded in [D's] contribution to another's crime, joint enterprise is grounded in affiliation. [D] voluntarily subscribes to a co-operative endeavour, one that is identified by its shared criminal purpose. As such, joint enterprise doctrines impose a form of collective responsibility, predicated on membership of the unlawful concert… .
By forming a joint enterprise, [D] signs up to its goal. In doing so, she accepts responsibility for the wrongs perpetrated in realising that goal, even though they be done by someone else. Her joining with P in a common purpose means that she is no longer fully in command of how the purpose is achieved. Given that P is an autonomous agent, [D] cannot control the precise manner in which P acts. Yet her commitment to the common purpose implies an acceptance of the choices and actions that are taken by P in the course of realising that purpose.
By offering allegiance to the enterprise, [D] implicitly condones its furtherance. It is appropriate, where she does so to extend liability to the crimes that grow out of that wrong, whether or not they are individually aided or abetted.[120]
SHOULD D HAVE TO BELIEVE THAT P (OR ANOTHER PERSON) WILL COMMIT THE CONDUCT ELEMENT OF THE PRINCIPAL OFFENCE?
Introduction
3.133 In analysing the normative features of joint criminal venture liability, Professor Simester was not concerned with D's attitude towards the commission of the principal offence. Instead, he was considering whether, in order to be convicted of the principal offence, D had to know or believe that P would commit it or whether it sufficed that D believed that P might commit it. In Chan Wing-siu,[121] the offence that P and D agreed to commit was armed robbery. In the course of the robbery, P murdered V. The issue was whether D was guilty of V's murder. Murder is an offence that consists of a conduct element (for example an act of stabbing or shooting) and a consequence element (death of a human being). In addition, for P to be liable, he or she must intend to cause death or serious bodily harm. In delivering the opinion of the Privy Council, Sir Robin Cooke did not attempt to isolate each element of the offence with a view to considering D's state of mind in relation to each one. However, in upholding D's conviction for murder, the Privy Council established the following principle ('the Chan Wing-siu principle'):
D can be convicted of an offence committed as an incident of a joint criminal venture if D foresaw that:
P might commit the conduct element of the offence; and
should P do so, P might do so with the state of mind required to be convicted of the offence.
Professor Simester believes that Chan Wing-siu was correctly decided. We agree and now set out our reasons.[122]
Understanding the Chan Wing-siu principle
3.135 Whatever may have been the position in earlier times, the Chan Wing-siu principle does not import an objective test for attributing liability to D for collateral offences. Thus, if the principal offence that P commits is rape, it is not enough that D ought to have foreseen that P might penetrate V. D must actually have contemplated that there was a more than negligible risk that P might do so. [123]
The accessory to murder … must be proved to have been reckless, not merely whether death might be caused, but whether murder might be committed: he must have been aware, not merely that death or grievously bodily harm might be caused, but that it might be caused intentionally by a person whom he was assisting or encouraging to commit a crime. Recklessness whether murder be committed is different from, and more serious than, recklessness whether death be caused by an accident.[124]
Judicial and academic reservations concerning the severity of the Chan Wing-siu principle
Many would say, and I agree, that the conduct of [D] is culpable, although usually at a lower level than the culpability of [P] who actually does the deed.[125]
More recently in Clayton v The Queen[126], Kirby J delivered a strong dissenting judgement in the High Court of Australia. He said:
To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or "constructive liability". But it countenances what is "undoubtedly a lesser form of mens rea". It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis.[127]
3.138 Likewise, Professor Sir John Smith thought that the Chan Wing-siu principle might be "too harsh". He suggested that the principle might be modified to "require intention (or even purpose) on the part of [D] that in the event which has occurred, [P] should act as he did".[128]
3.139 Professor Sullivan has suggested that consideration should be given to reforming the Chan Wing-siu principle by requiring that D should have foreseen the commission of the principal offence as not merely a possibility but as a probability or a high probability.[129]
Defending the Chan Wing-siu principle
3.141 Secondly, D has agreed and chosen to participate with P in a venture which according to the terms of the agreement has a criminal objective - the commission of an agreed offence. As we argue below, such ventures have the potential to escalate and involve the commission of more serious offences.[130] This is, after all, something that D will be only too well aware of if he believes that there is a risk that P may, in addition to or instead of the agreed offence, commit a collateral offence. Ironically, evidence of this 'belief in the risk' can often be demonstrated by D's efforts to persuade P not to commit the particular collateral offence.
3.143 It is true that in Powell and Daniels, English, Lord Mustill said:
Yet try as I may, I cannot accommodate … culpability [for a collateral offence] within a concept of joint enterprise. How can a jury be directed at the same time that [D] is guilty only if he was a party to an express or tacit agreement to do the act in question, and that he is guilty if he not only disagreed with it, but made his disagreement perfectly clear to P? Are not the two assertions incompatible?[131]
However, in our view culpability for collateral offences can be accommodated within the concept of joint criminal venture. In entering into an agreement with P to commit offence x and at the same time foreseeing that P might commit offence y, D knowingly runs the risk that P will commit offence y. Although D may not agree to the commission of offence y and may hope that it will not be committed, his decision to continue to participate in the venture means that he or she is quite prepared to countenance its commission.
3.144 In November 2005 the Jill Dando Institute of Criminal Science, University College London published a report drawing mainly on 12 research studies comprising current or recently completed research projects covering a broad range of topics within the remit of gangs, guns and other weapons.[132] One section[133] of the report is entitled "Gangs and crime". It states that gang members commit over five times as many offences as non-gang members. One of the surveys that the report drew on found that 38% of those claiming to be part of a gang with a name and a territory had attacked someone, and 55% had vandalised property. According to the report:
There is a strong social science research literature which shows that individuals in groups behave very differently than they do when alone. They take more risks, they feel pressure to conform with the majority, and they feel less personal responsibility.[134]
3.145 Another section of the report focuses on weapons and gangs.[135] The report traces the literature which suggests that gang members are much more likely than others to carry weapons and guns with analysis of the data relating to those arrested showing that gang members are five times as likely as non-gang members to report owning a gun. A similar pattern is discernible in relation to knives. 39% of self-reported gang members admitted to carrying one within the previous twelve months compared to 7% of non-gang members. Most offences involving knives were thought to be carried out in the company of friends with peer pressure commonly cited as a motivating factor. Over a quarter of knife related homicides involved more than one offender. The report suggests that involvement with weapons is very much dependent on the level of gang involvement with street gangs rarely using guns to kill each other, preferring knives. These studies show that there is sound empirical support for Lord Steyn's opinion that, "Experience has shown that joint criminal [ventures] only too readily escalate into the commission of greater offences."[136] This opinion has been confirmed by American research. Professor Katyal has argued:
What are somewhat less obvious … are psychological accounts of the dangers of group activity. Advances in psychology over the past thirty years have demonstrated that groups cultivate a special social identity. This identity often encourages risky behaviour, leads individuals to behave against their self-interest, solidifies loyalty, and facilitates harm against non-members… a study of active burglars… found that people in groups are more likely to be aroused, raising the possibility that group crimes lead to unplanned violence.[137]
3.146 It might be thought that employing such empirical evidence to ground D's liability in the way that we are recommending is severe on D. However, this is more than compensated for by three factors. First, there is the 'subjectivist' requirement that D must foresee that P may commit the principal offence. Secondly, D has the opportunity to claim that P's offence was too remote from the agreed offence to fall within the scope of the joint venture.[138] Thirdly, it is always open to D to withdraw from the joint venture by negating the effect of the original agreement before P commits the principal offence.[139]
Logical incongruity
3.147 We acknowledge that under the Chan Wing-siu principle D can be convicted of a collateral offence committed by P if he or she foresees that P might perpetrate its conduct element, whereas it may be that P can only be convicted of that offence if he or she intended to commit the conduct element. However, despite Lord Hutton suggesting otherwise,[140] there is no logical incongruity in stipulating different fault elements for principal offenders and secondary parties. The conduct of each is different and, accordingly, there is no logical reason why the fault element must be the same for each.
Substituting a test of foresight of probability
3.148 In recognition of the criticism levelled at the Chan Wing-siu principle, we should consider an alternative. Professor Sullivan has suggested that the test should be whether P foresaw it as probable or highly probable that P would commit the conduct element of the collateral offence.[141] At first sight, section 66(2) of the New Zealand Crimes Act 1961 lends support to Professor Sullivan. It provides that D is liable for a collateral offence if the commission of the offence "was known [by D] to be a probable consequence of the prosecution of the common purpose." However, the provision has been interpreted so that D is liable if he or she believes that there is "a real or substantial risk" that the collateral offence will be committed.[142] In other words, D need only foresee a realistic possibility that the collateral offence will be committed.
3.149 Determining the meaning of 'probable' or 'highly probable' is fraught with difficulty. Recently in Darkan v The Queen[143] the High Court of Australia had to consider section 8 of the Queensland Criminal Code. Section 8, like section 21(2) of the Canadian Criminal Code, contains an objective test for determining D's liability for a collateral offence committed by P. It provides that D is liable for the offence if "its commission was a probable consequence" of D and P having "a common intention to prosecute an unlawful purpose". The High Court considered no less than four possible meanings of 'probable' including 'a probability of less than 50%, but more than a substantial or real and not remote possibility' and 'a substantial or real and not remote possibility'.[144] The Court, in rejecting a submission that the trial judge had wrongly directed the jury as to the meaning of 'a probable consequence' stressed that the meaning of the phrase "is not relatively simple".[145]
… difficult to arrive at a verbal formula for what it does mean and for what the jury may be told. The expression "a probable consequence" means that the occurrence of the consequence need not be more probable than not, but must be probable as distinct from possible. It must be probable in the sense that it could well happen.[146]
We are not persuaded that the law would be improved by a test that would involve a jury being directed in such terms.
Recommendation
(1) D intended that P (or another party to the venture) should commit the conduct element;
(2) D believed that P (or another party to the venture) would commit the conduct element; or
(3) D believed that P (or another party to the venture) might commit the conduct element.
'Scope of the venture'
LIMITING D'S LIABILITY EVEN THOUGH D INTENDS OR BELIEVES THAT P WILL OR MIGHT COMMIT THE CONDUCT ELEMENT OF THE PRINCIPAL OFFENCE
3.154 An example in the context of an agreed offence is:
Example 3EE
D sees P in an altercation with X in a public house. D, who hates X, urges P to hit X and gives P a stick with which to do so. However, P, by chance seeing V, an ex girlfriend flirting with another man, instead hits V with the stick.
In this example, D may dispute his or her liability on the basis that he or she did not intend or foresee V being assaulted. However, D did foresee P committing an assault and this is what P has done.
3.155 An example in the context of a collateral offence is:
Example 3FF
D and P agree to commit a burglary. D, knowing that P is armed with a gun, realises that P may use his gun to murder anyone who disturbs them in the course of the burglary. D urges P not to do so. In the event, D and P are not disturbed. However, in the course of the burglary, by chance P sees a rival gang leader, V, walking past. P takes the opportunity to shoot V dead.
Again, D is likely to feel aggrieved if he or she is convicted as a secondary party to P's murder of V. Yet, D foresaw that P might commit murder in the course of the venture and this is what P has done.
Example 3GG
D and P hatch a plot to harm V. D writes P a letter urging P to burn down V's house. P puts the letter away in a drawer. A year later, brooding on the contents of the letter, P is moved to commit the offence that D encouraged him to commit.
Example 3HH
D and P, two racists, agree that P to set fire to the local Afro-Caribbean community centre. P, finding blanket security at the centre, instead sets fire to a local public house that is frequented by people from the centre. Unbeknown to P, D's brother owns the public house.
HOMICIDE OFFENCES
3.163 The same test, of fact and degree, will apply when the principal offence is murder. In Part 5 of our consultation paper A New Homicide Act for England and Wales?[147] in which we address complicity in the context of homicide, there was not space to address this question of 'scope'. The omission was criticised by some commentators but we always believed that the principle should apply to murder as to any other crime:
Example 3JJ
D agrees with P, a professional assassin, to provide P with a gun to murder D's wife. P is then paid a large sum of money by X to murder X's wife, V. P murders V with D's gun. P does not shoot D's wife.
In this example, under the recommendations that we made in the first report, D would be guilty of the inchoate offence of assisting or encouraging murder and could be sentenced to anything up to and including life imprisonment. It does not necessarily follow that D should be convicted of V's murder. It should be open to the tribunal of fact, following the principle now under discussion, to find that what P did was not within the scope of the joint criminal venture with D.
TRANSFERRED MALICE
3.164 The purpose of the 'scope of the venture' test is to avoid rigid criteria which would unfairly criminalise certain defendants. However, the fact that P's act can be so remote from what D intended or anticipated so as to fall outside the scope of the joint criminal venture does not affect the application of the doctrine of 'transferred malice'.[148] In examples 3GG, 3HH and 3JJ, P's potential departure from the scope of the joint venture comes through a conscious decision on P's part. By contrast, a potential departure could equally arise as a result of some mischance or accident in the furtherance of the venture:
Example 3KK
D encourages P to hit X and gives P a stick with which to do it. D takes a swing at X but X ducks and the blow strikes and injures V.
In this example, P's action in swinging at X takes place in pursuance of the joint criminal venture. Accordingly a jury should be told that the fact that P happens to miss X and hit V cannot in itself relieve either P or D of liability for an offence against V. This is not only consistent with the 'scope of the venture' test, but also accords with normal principles of transferred malice.
CLAUSE 1
Recommendation
The fault required of D in relation to elements of the principal offence other than the conduct element
Example 3LL
D and P agree to commit a burglary. D believes that, should V interrupt them, D might attack V. D is uncertain regarding the intention with which P might attack V. However, he foresees the possibility that P might attack V intending to cause serious harm to V. In the event, V does interrupt them and P attacks V intentionally causing V serious bodily harm.
P has committed the offence of causing grievous bodily harm with intent. Likewise, D would be guilty of the offence because he believed that P might commit the offence.
Recommendation
Note 1 There will be a small number of cases where D is secondarily liable for a principal offence despite P not committing the offence - see Part 4 paras 4.11 to 4.13. [Back] Note 2 See Part 4 paras 4.8 to 4.27. [Back] Note 3 See Part 4 paras 4.28 to 4.37. [Back] Note 4 In Part 5, we consider what defences there should be to secondary liability. [Back] Note 5 Para 2.5. See also Appendix B, paras B.6 and B.7. [Back] Note 6 Clause 5 of the Supplementary Bill. [Back] Note 7 Paras 2.8 to 2.19 and Appendix B, paras B.14 to B.27. [Back] Note 8 See Part 2, paras 2.16 to 2.17 and Appendix B, paras B.21 to B.24. [Back] Note 9 See Part 2, paras 2.18 to 2.19 and Appendix B, paras B.25 to B.27. [Back] Note 10 See Part 2, para 2.8 (3) and Appendix B, para B.14 (1). [Back] Note 11 See Part 4, paras 4.11 to 4.13. [Back] Note 12 The mechanism for retaining this exception to the derivative theory is cl 10 of the Bill. It provides that, for the purposes of determining whether D is guilty of an offence as a secondary party, P commits an offence if P acts with the fault required for conviction of the offence, is of or over the age of 10 and does not have a defence of insanity. If so, P commits an offence even if he or she has another defence, for example duress, provocation or diminished responsibility. [Back] Note 13 [1985] 1 AC 168. [Back] Note 14 Paras 3.132 to 3.152 below. [Back] Note 15 “Complicity, cause and blame – a study in the interpretation of doctrine” (1985) 73(2) California Law Review 323, 342. [Back] Note 16 Clause 9(1) and (2) of the Supplementary Bill. [Back] Note 17 Clause 1 of the Bill. [Back] Note 18 In Goldman [2001] EWCA Crim 1684, [2001] WL 825029 it was held that ‘incitement’ covered a suggestion, proposal, persuasion or inducement. In Giannetto [1997] 1 Cr App R 1 the trial judge directed the jury that D would be liable as an accessory to the murder of V if P had suggested murdering V and D had replied ‘Oh goody’. The Court of Appeal did not criticise the direction, saying that “mere encouragement … would suffice” (p 13). [Back] Note 22 Applin v Race Relations Board [1973] QB 815. [Back] Note 23 Clause 8(1) of the Bill. [Back] Note 24 Criminal Law Theory and Doctrine (2nd ed 2003) p 266. [Back] Note 25 Clause 8(1) of the Bill. [Back] Note 27 The Commission itself said that specific authority for the view that there had to be persuasion or pressure was ‘notably sparse’ - para 2.132. [Back] Note 28 Marlow [1998] 1 Cr App R (s) 273; Goldman [2001] EWCA Crim 1684, [2001] WL 825029. [Back] Note 32 Para 5.2.(6.2). [Back] Note 33 [1984] QB 795. The case involved the distribution of a leaflet describing ways of committing suicide. It was a civil case in which the Attorney-General sought a declaration that publication of the booklet would constitute an offence because it would ‘aid and abet’ suicide contrary to s 2(1) of the Suicide Act 1961. [Back] Note 34 Para 4.53 quoting Glanville Williams,Criminal Law: The General Part (2nd ed 1960) p 381 criticising the New Zealand case of Baker (1909) 28 NZLR 536 where D was held liable as a party to an offence because he had written a letter describing in general terms techniques for safe-breaking. It should be noted that the problem that Professor Williams adverted to is not confined to advice. For example, a jemmy can be used to commit numerous burglaries. [Back] Note 37 Professor K J M Smith, “The Law Commission Consultation Paper on Complicity Part 1: A Blueprint for Rationalism” [1994] Criminal Law Review 239, 247. [Back] Note 38 Neal Kumar Katyal “Conspiracy Theory” 112 Yale Law Journal (2003) 101 at 116 and 117 (emphasis in original). [Back] Note 39 Clause 1(1)(c) of the Bill. [Back] Note 40 See Part 2, para 2.40. See also, Appendix B, para B.62. [Back] Note 41 Principles of Criminal Law (4th ed 2003) p 418. [Back] Note 42 Simester and Brookbanks, Principles of Criminal Law (2nd ed 2002) p 46. [Back] Note 43 Gibbins and Proctor (1918) 13 Cr App R 134; Pittwood (1902) 19 TLR 37. [Back] Note 44 A parent is under a legal duty to act in order to ensure the health and safety of his or her child. A police officer is under a similar duty towards those whom he or she has arrested or who are in his or her custody. A legal duty to act may arise because of a contractual relationship, eg employer and employee. [Back] Note 45 The owner of a motor car is entitled to control the actions of those whom he or she allows to drive the car –Du Cros v Lambourne [1907] 1 KB 40. An owner of premises or land is entitled to control the actions of those who are on the premises or land. [Back] Note 46 The relevant authorities are Coney (1882) 8 QBD 534; Wilcox v Jeffery [1951] 1 All ER 464; Allan [1965] 1 QB 130; Smith v Baker [1971] 1 RTR 350; Clarkson [1971] 1 WLR 1402; Allen v Ireland [1984] 1 WLR 903; Bland [1988] Criminal Law Review 41. [Back] Note 47 Du Cros v Lambourne [1907] 1 KB 40; Tuck v Robson [1970] 1 WLR 741 where a publican permitted customers to consume alcohol on the licensed premises outside the permitted hours; JF Alford Transport [1997] 2 Cr App R 326 where a company did nothing to prevent its employees falsifying their tachograph records; Gaunt [2003] EWCA Crim 3925, [2004] 2 Cr App R (s) 37. [Back] Note 48 Previously the Commission has taken the view that there is such a general principle – clause 27(3) of the Draft Criminal Code Bill and commentary in A Criminal Code for England and Wales, vol 2 Commentary on Draft Criminal Code Bill (1989) Law Com No 177 para 9.22. See Professor Glanville Williams, “Which of you did it?” (1989) 52(2) Modern Law Review 179 and, by the same author, “What should the Code do about Omissions” (1987) 7(1) Legal Studies 92. [Back] Note 49 Paras 4.69 to 4.75. [Back] Note 51 See paras 3.37 and 3.38 below. [Back] Note 52 Clause 8(2)(b) of the Bill. [Back] Note 53 Brown (1841) Car & M 312, 172 ER 522. [Back] Note 54 Clause 8(3) of the Bill. [Back] Note 55 Paras 5.68 to 5.70. [Back] Note 56 Criminal Law Act 1967, s 3(1). [Back] Note 57 See the discussion in Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) pp 73 to 74. [Back] Note 58 In the case of a promise by D to assist, not forming part of a joint venture, if the promise emboldened P to commit the offence, D would be guilty of the offence by virtue of clause 1. [Back] Note 59 Para 2.120. In the CP, the Commission used the term ‘joint enterprise’ rather than ‘joint criminal venture’. [Back] Note 61 Contrary to the Protection of Children Act 1978, s1(1)(b). [Back] Note 62 Criminal Law Theory and Doctrine (2nd ed 2003) p 225 (emphasis in original). See also G R Sullivan, “Complicity for First Degree Murder and Complicity in an Unlawful Killing” [2006] Criminal Law Review 502, 508 to 509. [Back] Note 63 A P Simester, “The Mental Element in Complicity” (2006) 122 Law Quarterly Review 578, 598 to 600 (our emphasis). [Back] Note 65 See paras 3.153 to 3.166 below. [Back] Note 66 A P Simester, “The Mental Element in Complicity” (2006) 122 Law Quarterly Review 578, 600. [Back] Note 67 It is true that there are authorities which suggest that, in this example, D is not guilty of rape because he did not ‘authorise’ its commission – see Anderson and Morris [1966] 2 QB 110, 118 to 119. However, Chan Wing-siu [1985] AC 168, Hui Chi-Ming [1992] 1 AC 34 andPowell and Daniels, English [1999] 1 AC 1 establish that D is liable for a collateral offence if he or she foresaw that it might be committed as a possible incident of the joint criminal venture. [Back] Note 68 Criminal Law (11th ed 2005) p 191. [Back] Note 69 See paras 3.42 and 3.43. [Back] Note 70 A P Simester, “The Mental Element in Complicity” (2006) 122 Law Quarterly Review 578, 599. [Back] Note 71 Provided that D satisfied the requisite fault element. [Back] Note 72 Provided that D satisfies the fault element that we are recommending – see paras 3.68 to 3.169 below. [Back] Note 73 Rook (1993) 97 Cr App R 327. [Back] Note 74 Jones [2006] SASC 189, [157]. [Back] Note 75 Although only in limited circumstances, the law should allow for the possibility of D negating the effect of his agreement to take part in a joint criminal venture. In example 3N, D may have been successful on this point if, prior to the robbery, he had told P that he no longer wanted to play any part in it. [Back] Note 76 For the possible application of clause 1 to joint criminal ventures, see para 3.124 below. [Back] Note 77 Paras 2.45 and 2.47. See also Appendix B, paras B.70 to B.74 and B.77 to B.78. [Back] Note 78 A J Ashworth, Principles of Criminal Law (4th ed 2003) p 421. [Back] Note 81 Inchoate Liability for Assisting and Encouraging Crime (2006) Law Com No 300. [Back] Note 82 We acknowledge that there may be isolated instances where an act of assistance or encouragement is inherently wrong or harmful. An example would be where D sells P an illegal firearm. [Back] Note 83 A P Simester, “The Mental Element in Complicity” (2006) 122 Law Quarterly Review 578, 589 to 590. [Back] Note 84 The proposed legislative response to our recommendations can be found in Part 2 of the Serious Crime Bill (introduced into Parliament on 16 January 2007). [Back] Note 85 Offences against the Person Act 1861, s 20. [Back] Note 86 Mowatt [1968] 1 QB 421; Savage and Parmenter [1992] 1 AC 699. [Back] Note 87 In example 3Q, D believed that there was a risk that V might suffer some, albeit minor, bodily harm. A quite distinct issue is whether D ought to be convicted of the principal offence of unlawfully and maliciously inflicting grievous bodily harm if when he handed the stone to P he did not believe that the stone would or might cause any injury to V – see paras 3.96 and 3.97 below. [Back] Note 88 Clause 11(2) of the Bill. [Back] Note 89 Sexual Offences Act 2003, s 1(1)(a). [Back] Note 90 Woollin [1999] 1 AC 82. [Back] Note 91 Murder, Manslaughter and Infanticide (2006) Law Com No 304. [Back] Note 92 Above, para 3.27 [Back] Note 93 This is consistent with the meaning of ‘intention’ set out in cl 18 of the Crime (Encouraging and Assisting) Bill appended to the first report. See also para A.100 of the first report. [Back] Note 94 See para 3.75 above. [Back] Note 95 [1960] 1 QB 129. See Part 2, paras 2.55 to 2.57. See also Appendix B, paras B.82 to B.87. [Back] Note 96 Clause 1(1)(a) of the Bill. [Back] Note 97 An offence contrary to Theft Act 1968, s 1 and punishable, following conviction on indictment, by a maximum term of imprisonment of seven years. [Back] Note 98 A summary offence contrary to Theft Act 1968, s 12(1) and punishable by a maximum term of imprisonment of six months. [Back] Note 99 Unless the view was taken that D should always be guilty of the less serious offence. However, we believe that this would not be a satisfactory conclusion. [Back] Note 100 [2003] UKHL 50, [2004] AC 1034. [Back] Note 101 B (A Minor) v DPP [2000] 2 AC 428; K [2001] UKHL 41, [2002] 1 AC 462. [Back] Note 102 B (A Minor) v DPP [2000] 2 AC 428, 460 by Lord Nicholls. [Back] Note 103 Offences Against the Person Act 1861, s 20. [Back] Note 104 Mowatt [1968] 1 QB 421; Savage [1992] 1 AC 699. [Back] Note 105 Sexual Offences Act 2003, s 5. [Back] Note 106 Dawson (1985) 81 Cr App R 150; Watson [1989] 1 WLR 684. [Back] Note 107 Contrary to Offences against the Person Act 1861, s 18. [Back] Note 108 It must be kept in mind in this discussion that, due to our previous recommendation, D’s liability is already restricted by the need for D to intend that P commit the conduct element. Accordingly, in the examples that follow, it is assumed that D intends P to commit the conduct element. [Back] Note 110 See Theft Act 1968, s 2(1)(c). [Back] Note 111 [1993] 2 All ER 955. [Back] Note 112 Although it is possible to maintain that by initially participating in the plan D intended to assist or encourage P. See G R Sullivan, “Complicity for First degree Murder and Unlawful Killing” [2006] Criminal Law Review 502, 507. It is nevertheless clear that on D’s testimoney, it was not D’s intention that P should commit the conduct element of the offence. [Back] Note 113 [1985] 1 AC 168. [Back] Note 114 As noted above, it will be an exceptional case where D does not intend P to commit the conduct element of the agreed offence. [Back] Note 115 See paras 3.125 and 3.126 above. [Back] Note 116 See para 3.45 above. [Back] Note 117 The expression is taken from Professor A P Simester, “The Mental Element in Complicity” (2006) 122Law Quarterly Review 578, 592. Professor Simester is in no doubt that there is a doctrinal difference. [Back] Note 118 See paras 3.47 to 3.58 above. [Back] Note 119 See para 3.51 above. [Back] Note 120 A P Simester, “The Mental Element in Complicity” (2006) 122 Law Quarterly Review 578, 598 to 600 (emphasis in original). [Back] Note 121 [1985] AC 168. [Back] Note 122 The High Court of Australia has considered the issue on a number of occasions - McAuliffe v The Queen [1995] 183 CLR 108; Gillard v The Queen [2003] 219 CLR 1 and Clayton v The Queen [2006] HCA 58. On each occasion, the High Court has applied the Chan Wing-siu principle. [Back] Note 123 By contrast, section 21(2) of the Canadian Criminal Code uses an objective standard to assess liability. In language that is reminiscent of Foster, Crown Cases (1762 ed) p 372, s 21(2) provides that parties to a joint criminal venture are guilty of an offence if they “knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose”. In Logan (1988) [1990] 2 SCR 731 the Supreme Court of Canada concluded that, in permitting a conviction for attempted murder (an offence where subjective foresight is a constitutional requirement) on the basis of an objective test, s 21(2) was contrary to the Canadian Charter of Rights and Freedoms. In Wise (2002) BCCCA 80, the Court of Appeal for British Columbia held that “only subjective foresight of death could lead to liability for murder under the provisions of s 21(2).” [Back] Note 124 “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453, 464 (emphasis added). Professor John Smith did have some reservations – see para 3.138 below. However, it is noteworthy that another eminent “subjectivist” supported what we term the Chan Wing-siu principle. J H C Turner edited Russell on Crime (12th ed 1964). He wrote (p 162), “[D] should not be held liable for anything but what he either expressly commanded or realised might be involved in the performance of the project agreed upon.” (emphasis added) [Back] Note 125 [1999] 1 AC 1, 11. [Back] Note 126 [2006] HCA 58. [Back] Note 127 Above, at [108]. [Back] Note 128 “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453, 465. [Back] Note 129 G R Sullivan, “The Law Commission Consultation Paper on Complicity (2): Fault Elements and Joint Enterprise” [1994] Criminal Law Review 252, 261 to 263. [Back] Note 130 See paras 3.144 to 146 below. This point is emphasised by Lord Steyn in Powell and Daniels, English [1999] 1 AC 1, 14. [Back] Note 131 [1999] 1 AC 1, 11. [Back] Note 132 Marshall, B; Webb, B & Tilley N, Rationalisation of Current Research on Guns, Gangs and Other Weapons: Phase 1 (2005). [Back] Note 134 Above. See further, Neal Kumar Katyal “Conspiracy theory” 112 Yale Law Journal (2003) 101. [Back] Note 135 5 – “Weapons and gangs”. [Back] Note 136 Powell and Daniels, English [1999] 1 AC 1, 14. [Back] Note 137 Neal Kumar Katyal “Conspiracy theory” 112 Yale Law Journal (2003) 101 at 104 and 110 (our emphasis), citing Paul Cromwell and others “Group effects on decision-making by burglars” 69 Psychological Reports 579 at 586. Professor Cromwell found that burglars tended to “pscyh each other up”. [Back] Note 138 See paras 3.153 to 3.166 below. [Back] Note 139 See paras 3.60 to 3.67 above. [Back] Note 140 Powell and Daniels, English [1999] 1 AC 1. However, Lord Hutton was in no doubt (p 25) that the Chan Wing-siu principle was justified because of “practical considerations of weight and importance related to considerations of public policy … which prevail over considerations of strict logic”. [Back] Note 141 This was the very point on which the appeal in Chan Wing-siu was founded. [Back] Note 142 Te Moni [1998] 1 NZLR 641. [Back] Note 143 [2006] HCA 34. [Back] Note 146 Above [78] to [79]. [Back] Note 147 (2005) Law Com No 177. [Back] Note 148 For the meaning of ‘transferred malice’ see Appendix B, n 121. [Back]
