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You are here: BAILII >> Databases >> The Law Commission >> Participating in Crime (Report) [2007] EWLC 305(Appendix_B) (May 2007) URL: http://www.bailii.org/ew/other/EWLC/2007/305(Appendix_B).html Cite as: [2007] EWLC 305(Appendix_B) |
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APPENDIX B
THE CURRENT LAW
INTRODUCTION
SECONDARY LIABILITY - A COMMON LAW DOCTRINE OF GENERAL APPLICATION
B.2 The primary source of the modern law of complicity is section 8 of the Accessories and Abettors Act 1861. As amended, it provides that anyone who 'shall aid, abet, counsel or procure the commission of any indictable offence … shall be liable to be tried, indicted and punished as a principal offender'.[1] However, the principle that section 8 embodies is a common law principle, namely that aiding, abetting, counselling or procuring another person to commit an offence is not, and never has been, a distinct offence. Rather, a person who, with the requisite state of mind, aids, abets, counsels or procures the commission of an offence is guilty of the principal offence that he or she has aided, abetted, counselled or procured (provided that the offence is subsequently committed). Accordingly, D is liable to the same stigma and penalties as P.
B.3 In Powell and Daniels, English,[2] Lord Steyn referred to a particular feature of secondary liability:
But there is no special rule governing the criminal liability of accessories in cases of murder. The principle governing the criminal liability of accessories applies across the spectrum of most criminal offences.[3]
Lord Steyn was highlighting a crucial distinction between primary and secondary liability. Offences are generally defined with reference to P. The definition of an offence will stipulate what it is that P must do, in what circumstances, with what consequences and with what state of mind. The rules that govern P's liability for a particular offence are unique to that offence.
B.5 It would be possible to dispense with a general doctrine of secondary liability but only if each offence had its own rules for determining not only P's but also D's liability. We believe that such an approach would be not only impracticable but would also result in the law of secondary liability being out of line with related areas of the criminal law. In particular, Parliament, on each occasion when it has reformed the inchoate offences of conspiracy and attempt[4] has done so by enacting a general inchoate offence the principles of which apply to all substantive offences.[5] Thus, if P is charged with attempted murder, the principles that determine whether or not he or she is guilty are no different from those that would govern D's liability if he or she were charged with attempted theft.[6]
B.6 Section 8 preserves another fundamental feature of the common law. In Swindall and Osborne,[7] D and P encouraged each other to race their respective carts along a road. One of the carts struck V who died. D and P were each charged with manslaughter. At their trial, it was submitted that neither could be convicted of manslaughter because the prosecution was unable to prove whose cart had struck V. Chief Baron Pollock rejected the submission. As a result, the case is authority for the proposition that the mere fact that the prosecution cannot prove whether a person participated in an offence as a principal offender or as a secondary party does not preclude that person being convicted of the offence.
B.7 Accordingly, although there is a conceptual distinction between the conduct of a principal offender and that of a secondary party, a participant in an offence can be convicted of it even if the prosecution is unable to prove his or her precise role.[8] It suffices that participation itself, whether as a principal offender or as a secondary party, can be proven.[9]
THE PARAMETERS OF THE DOCTRINE OF SECONDARY LIABILITY
The derivative theory of secondary liability
B.9 First, in order for D to be held liable, P must have committed a principal offence. Thus, if D prepares and hands a syringe containing heroin to P who self-injects and dies as a result, D is not criminally liable for P's death as a secondary party because P did not commit an offence by self-injecting.[10]
Example B1
D wants V to die. D hands a gun to P saying that it contains blank ammunition when D knows that it contains live bullets. D then encourages P to shoot at V, ostensibly in order to frighten V. P, who knows that V suffers from a serious heart condition, shoots at and kills V with the live ammunition.[11]
Although D's state of mind justifies a conviction for murder, application of the derivative theory of secondary liability should result, instead, in D being convicted of the offence that P has committed, namely manslaughter.[12]
B.11 Thirdly, D should incur secondary liability only if his or her conduct has made a contribution to P committing the principal offence. However, the contribution does not have to be significant[13] and it does not have to be the cause of P committing the principal offence.[14]
B.12 In earlier times the derivative theory of secondary liability was taken to extremes. Before D could be liable, a principal offence had to have been committed and P had to have been convicted and sentenced for it. D could not be convicted if, although there was no doubt that a principal offence had been committed, P was never apprehended, died before being convicted and sentenced or was pardoned.[15]
B.13 However, the extreme version of the derivative theory of secondary liability has long disappeared. Nowadays, D can be convicted even if P is not apprehended[16] or has previously been tried and acquitted.[17] These may not be significant exceptions to the derivative theory because they do not imply that a principal offence has not been committed, but only that it has not been proven to have been committed by P. However, the retreat from the derivative theory has gone further, even challenging the three central consequences listed above. As a result, a description of D's liability as still being dependent upon the commission of a principal offence requires refinement if it is to reflect accurately the way the law has developed.
Liability in the absence of any principal offence
B.14 There are a number of circumstances in which P, despite satisfying the external elements of an offence, does not commit the offence:[18]
(1) P, although satisfying the fault element of the offence, has a complete defence, for example duress[19] or self-defence. Alternatively, if the principal offence is murder, D has a partial defence, for example provocation or diminished responsibility;
(2) P cannot incur criminal responsibility either because he or she is aged under 10 years[20] or is legally insane; or
(3) P lacks the requisite fault element to be convicted of the principal offence.
Example B2
D encourages P to commit theft and says that if P does not do so, D will cut off the fingers of P's child. P commits the theft.
Example B3
D gives P, aged 6, a loaded gun knowing that P intends to use it to cause serious harm to V. P shoots at V causing serious harm.
Example B4
D encourages P to 'collect' an item from V's house and bring it to D's house. D, lying, tells P that V has consented to this.[21] P fetches the item.
In each example, the derivative theory of secondary liability prevents D being convicted of the principal offence. It is true that in examples B2 and B4, D is criminally liable by virtue of committing the common law offences of incitement to commit theft and incitement to commit burglary respectively. However, that is not the same as being convicted of theft or burglary.[22]
B.16 In such cases, the common law has resorted to two mechanisms in order to hold D criminally liable for the principal offence. The first of these is the doctrine of innocent agency by virtue of which D is convicted as a principal offender rather than as a secondary party. The second is to hold D liable as a secondary party on the basis that, although no principal offence has been committed, D has 'procured' the commission of the conduct element of the offence. On one occasion, the Court of Criminal Appeal upheld D's conviction on both bases.[23]
THE DOCTRINE OF INNOCENT AGENCY
B.17 The underlying idea is simple. The doctrine serves "to convert, in effect, an apparent 'accessory' into a [perpetrator]".[24] If D uses an innocent agent in order to commit an offence, D is considered to have perpetrated the offence as a principal offender:
Example B5
D asks P to deliver a package to V. Unbeknown to P, the package contains a bomb. P delivers the package and, as D had hoped, when V opens it the bomb explodes killing V.
D is guilty of murder as a principal offender.
B.18 The doctrine of innocent agency cannot apply if the agent is guilty of the principal offence, even if the agent is morally innocent. It is for this reason that the doctrine does not apply to no-fault offences.[25] If, unknown to P, D 'laces' P's drink so that P commits the no-fault offence of driving with excess alcohol,[26] D is guilty of the offence not as a principal offender but as an accessory on the basis that he or she 'procured' P to commit the offence.
B.19 The apparent simplicity of the doctrine of innocent agency conceals some difficult issues. First, it is not clear whether D must intend to cause the innocent agent to commit the principal offence.[27] Secondly, it should not be possible to employ the doctrine if the principal offence is one that can only be perpetrated by those who meet a particular description and D does not meet that description:
Example B6
D, a bachelor, untruthfully but on reasonable grounds, persuades P that P's estranged wife died three years ago. D encourages P to 'marry' V. In consequence P does so.[28]
P has not committed the offence of bigamy[29] because he reasonably believed that his estranged wife was dead.[30] Equally, it ought not to be possible to convict D of bigamy on the basis of innocent agency because as a matter of law only those who are married can commit bigamy as a principal offender. That said, the Court of Appeal has applied the doctrine when upholding the conviction of a husband for raping his wife notwithstanding that, as the law then stood, a husband could not as a matter of law rape his wife if they were cohabiting.[31]
B.20 Thirdly, in the view of some commentators,[32] some offences appear to require that their conduct element be personally performed:
Example B7
D encourages P to have sexual intercourse with his daughter V, aged 16. D has previously told V that he will cause her serious bodily harm if she does not let P have sexual intercourse with her. Terrified, V allows P to have intercourse with her. P is unaware of the threats and reasonably believes that V is freely consenting.
P is not guilty of rape if he believed on reasonable grounds that V was consenting to intercourse.[33] In Cogan and Leak,[34] the Court of Criminal Appeal held that in similar circumstances D could be convicted of rape as a principal offender by virtue of the doctrine of innocent agency.[35] Yet, on one view, to hold D guilty of rape as a principal to the offence is a "violent wrench of the English language"[36] because it was P, not D, who had sexual intercourse with V.[37]
'PROCURING' THE COMMISSION OF THE CONDUCT ELEMENT OF THE PRINCIPAL OFFENCE
B.21 The second means by which the courts have striven to render D criminally liable despite the absence of a principal offence has been by resorting to the concept of 'procuring'. As a basis of secondary liability, 'procuring' is an anomaly. Whereas D can 'aid, abet or counsel' P to commit an offence without causing P to commit the offence, 'procuring' implies a special kind of causal link between D's conduct and P's commission of the principal offence.[38] Normally, a person who causes a proscribed outcome is liable as a principal offender. However, it is clear that, in the context of no-fault offences, D is secondarily liable for causing P to commit a no-fault offence:
Example B8
D 'laces' P's non-alcoholic drink with the result that P unwittingly drives while in excess of the prescribed limit.
D is guilty of the no-fault offence of driving with excess alcohol[39] but as a secondary party and not as a principal offender.
B.22 As Professor Ashworth has observed, cases like example B8:
represent the high-water mark of causal connection among the various types of accessorial conduct … in which there is no meeting of minds between principal and accomplice.[40]
Nevertheless, if D procures P to commit a no-fault offence, it is at least understandable that D should be convicted of the offence as a secondary party rather than as a principal offender. After all, it is P who has committed the offence and it is inappropriate and inaccurate to describe D and P as joint principals.[41]
B.23 However, the courts have gone beyond this by extending 'procuring' as a basis of secondary liability to offences that do require proof of fault. The courts have done so in order to ensure that D is held criminally liable in cases where, although P has not committed an offence, D has acted reprehensibly. In cases where, by lies, threats or other underhand behaviour, D has brought about the commission by P of the conduct element of a principal offence, the courts have held that D can be convicted of the offence as a secondary party although there is no principal offender.[42]
B.24 The result is not necessarily unsatisfactory. As Professor Ashworth has commented:
[D] has done all that he or she intended to do in order to further [P's] crime and, considered in isolation, D is surely no less culpable than if [P] had been found guilty.[43]
However, whatever the practical benefits, the outcome represents a significant dilution of the derivative theory of secondary liability and is achieved only by affording an enhanced scope to what was already an anomalous form of secondary liability.
Secondary liability for a more serious principal offence than that committed by P
B.25 As we suggested above,[44] a logical application of the derivative theory of secondary liability is that D's liability cannot exceed that of P. This was accepted by the Court of Appeal in Richards.[45] It can, however, lead to the result that, in example B1 above, D is guilty of manslaughter and not murder despite intending that P should kill V.
B.26 Accordingly, in Howe,[46] the House of Lords disapproved Richards. However, identifying the precise basis of D's liability for a more serious offence than that committed by P is problematic. On one view, in relation to the more serious offence, P does not act as a fully informed individual and, therefore, in relation to that offence, is an innocent agent. On the other view, D cannot properly be convicted of the more serious offence on the basis of innocent agency because P is not a wholly innocent agent.
Example B9
D encourages P to murder V. P does so. On being charged with murder, P successfully pleads provocation.
P is convicted of the lesser offence, manslaughter, despite satisfying the fault element of murder. In relation to the offence of murder, P cannot be accurately described as an innocent agent. At the same time, however, it is difficult to justify convicting D of murder on the basis that he or she has procured P to commit murder because, in killing V, P acted as a fully informed individual.
THE CONDUCT ELEMENT OF SECONDARY LIABILITY
Modes of participation
B.29 By virtue of the wording of section 8 and section 44, an indictment or charge is not legally defective merely because it does not specify whether a person has committed an offence as a principal offender or by having aided, abetted, counselled or procured its commission. However, in Maxwell[47] the House of Lords said that wherever the prosecution is in a position to do so, the indictment or charge should make clear the factual basis of the case alleged against each defendant.[48]
B.30 If the prosecution case is that the defendant has committed an offence otherwise than as a principal offender, the indictment or charge can, but does not have to, contain all four words 'aid, abet, counsel or procure'. Provided that the evidence establishes that D's conduct satisfies one of the words, that is enough. If the indictment or charge only refers to some of the words, the prosecution must prove that D's conduct fits the word(s) used.[49]
The meaning of "aid, abet, counsel or procure"
B.31 Disregarding procuring, it is generally accepted that these specified modes of involvement cover two types of conduct, namely the provision of assistance or encouragement.[50] The nature of the assistance or encouragement may take any form provided that it occurs before or during the commission of the principal offence.[51] Professor Sir John Smith has observed:
We still use the old language of aiding, abetting, counselling or procuring but these are technical terms. What they mean in practice is "assists or encourages". Before the law relating to felonies was abolished in 1967 we used to distinguish between the principal in the second degree, who was present at the commission of the crime, and the accessory before the fact, who was absent; but that is no longer necessary, because modern cases established that the same principles apply whether the person who assists or encourages is present or absent.[52]
B.32 However, it is doubtful if all cases of 'procuring' can be properly described as involving the provision of assistance or encouragement. In A-G's Reference (No 1 of 1975)[53] D added alcohol to P's drink without P's knowledge. As a result, D committed the offence of procuring P's no-fault offence of driving with excess alcohol. In examples like this one, to describe D's conduct as assisting or encouraging P to commit the offence, despite its obvious attraction, nevertheless disregards the fact that it was not P's intention to commit any offence.[54]
Voluntary presence at the scene of an offence
Example B10
D is sitting on a bus. Another passenger P starts to assault the driver, V. D decides to stay in his seat and observe.
D's conduct in remaining in his seat is not a positive act. If D has encouraged P, it can only be by virtue of omitting to remove himself from the scene. However, under English law, D can be a secondary party to an offence by virtue of an omission in only very limited circumstances. No citizen is under a general duty to intervene to prevent the commission of an offence or to remove him or herself from the place where an offence is being committed.[55]
Example B11
D goes into a room where he knows that P is raping V. D stays to watch.[56]
B.36 The authorities suggest that voluntarily going to a place knowing or believing that an offence is being or will be committed is an act which is capable of constituting encouragement. Ultimately, however, whether D by doing so has encouraged P is a question of fact for the jury to determine.[57]
Omissions
B.38 The starting point is that, in general, an omission to act does not fix D with secondary liability:
Example B12
P, a prospective suicide bomber, sends a letter to D who is P's spiritual adviser. P says that he intends to board a crowded train and detonate a bomb. P says that if D thinks that it would be wrong to do so, D should so advise. On the other hand, if D approves of the action, D should do nothing. P concludes by saying that if he hears nothing within 10 days, he will assume that D endorses P's proposed action. There is no response from D and P commits the atrocity. On searching D's home, the police find P's letter opened with comments in the margin in D's handwriting.
D is not a secondary party to murder because his lack of response is an omission. It matters not that D's status and position is such that he exerts a potent influence, albeit not a power of control, upon P and that the omission is intended to encourage P.
FAILURE TO DISCHARGE A LEGAL DUTY
B.40 If D is under a legal duty to act, failure to discharge the duty is capable of constituting assistance or encouragement.[58] Examples are a security guard who deliberately omits to lock a door to enable burglars to enter the premises and a store detective who deliberately ignores acts of theft committed by customers. In each case, the duty to act emanates from their contract of employment.[59]
B.41 A legal duty to act can also arise from a personal relationship. An example is that of parent and child. If a parent deliberately withholds food from the child intending that the child should starve to death, the parent commits murder as a principal offender. Secondary liability, based on an omission, of a parent for the death of or injury to his or her child is more difficult. In Russell and Russell,[60] Lord Chief Justice Lane said:
Generally speaking, parents of a child are in no different position from any other defendants charged with a crime. To establish guilt against either, the Crown must prove at the least that the defendant aided, abetted, counselled or procured the commission of the crime by the other. The only difference in the position of parents, as opposed to others jointly indicted, is that one parent may have a duty to intervene in the ill-treatment of their child by the other when a stranger would have no such duty.[61]
B.42 In Russell and Russell, it was alleged that the parents were parties to a joint venture. In the absence of a joint criminal venture, there is academic disagreement as to whether a parent's failure to protect his or her child is capable of 'aiding and abetting' an offence against the child. Professor Sir John Smith thought that it was.[62] By contrast, Professor Glanville Williams rejected that view, both on principle and because there is no English authority to that effect.[63]
FAILURE TO EXERCISE AN ENTITLEMENT TO CONTROL THE ACTIONS OF P
B.44 The common law has recognised that if D fails to exercise an entitlement to control the actions of P, he or she may be liable for an offence that P commits as a result. Thus, in Du Cros v Lambourne[64] it was proved that D's car had been driven dangerously at a time when D and P were both in it. However, it could not be proven whether it was P or D who was driving. D's conviction was upheld because, even if not the driver, he was a secondary party as he had the power to prevent P driving or continuing to drive in a dangerous manner.
B.45 In Webster[65] D was convicted of being a secondary party to causing death by dangerous driving. During a journey, he allowed P to drive his car knowing that P had consumed alcohol. One basis of the prosecution's case was that D was aware that P was driving the car dangerously at a high speed and failed to intervene. The Court of Appeal quashed D's conviction because the jury had not been directed that they had to consider not only whether D knew P was driving dangerously but also whether D had had an opportunity to intervene before it was too late.
B.46 The entitlement to control exception is significant because it represents a potentially extensive departure from the general rule. It has been applied to the licensee of a public house who allowed customers to drink alcohol outside the permitted hours,[66] to the supervisor of a learner driver[67] and to a company for omitting to take steps to prevent its drivers from falsifying their tachograph records.[68]
B.47 However, the ambit of the exception is unclear and it is questionable whether it is a general principle. If D holds a party at his or her home and knows that one guest is about to rape another guest, is D liable if he or she, although able to intervene, decides not to? Alternatively, in the middle of the night, D is awoken by screams in his or her garden. D gets up and sees that P is about to assault V. Although able to intervene safely and effectively, D goes back to bed. Does it make any difference that, in the former case, P is an invitee whereas in the latter P is a trespasser? The common law provides no clear answer to these questions.[69]
Causation, connection and secondary liability
Introduction
D's conduct need not cause P to commit the principal offence and need not make any difference to the outcome
B.49 Apart from 'procuring', D's conduct need not cause P to commit the principal offence in the sense that 'but for' D's conduct, P would not have committed the offence.[70] However, according to Professor K J M Smith, although D's conduct does not have to cause P to commit the principal offence in the 'but for' sense:
It has always been implied in the concept of complicity that [D's] involvement … did make some difference to the outcome and as a consequence of this, accessories have been implicitly linked to the harm element in the principal offence.[71]
Example B13
P has made up his mind to murder V. He plans to do so by stabbing V with his kitchen knife. However, D, who has his own reasons for wanting to see V murdered, provides P with an identical kitchen knife. P uses D's knife to murder V.
D's act of assistance has made no material difference to the outcome but D is guilty of murder. What matters is that D's assistance or encouragement has some impact on the course of conduct that ends in the commission of the offence. In this example, D's assistance does have such an impact because V is killed with D's knife and not with P's.
B.51 The authorities speak of there having to be "a connection"[72] between D's conduct and P committing the principal offence. In A-G v Able,[73] Mr Justice Woolf said that that there has to be a "sufficient" connection.[74] However, the precise nature of this sufficient connection is elusive. It is best understood, at least where D's conduct consists of assistance, as meaning that D's conduct has made a contribution to the commission of the offence. This is why D is guilty of murder in example B13. D, by providing P with the knife which P used to murder V, has contributed to the outcome. By contrast, if P had decided to use his own knife to murder V, D would not have been guilty of murder because his assistance would have made no contribution to the commission of the offence.[75]
B.52 P does not have to know that he or she is being assisted by D:
Example B14
P plans a robbery intending to use his own gun. D is aware of this. The day before the robbery, D notices that P's own gun is missing from the drawer. Without telling P, he places his own gun, a similar kind to P's, in the drawer for P to use. P commits the robbery using D's gun.[76]
D is guilty of robbery.[77]
ENCOURAGEMENT
B.53 In example B14, D provided assistance. Cases where D encourages but does not assist P are more difficult to analyse. In contrast to assistance, encouragement must have the capacity to act on P's mind and P must, therefore be aware of D's encouragement.[78] Thus, D cannot be convicted of an offence as a secondary party if he or she shouts encouragement to P if P is deaf and therefore unaware of the encouragement.
B.54 However, as with assistance, D can be liable as a secondary party even if D's encouragement makes no difference to the outcome, for example if P has already irrevocably made up his or her mind to commit the principal offence.[79] The focus is not on whether D's encouragement made a difference to the outcome but whether the encouragement was proffered in circumstances where P could have been aware of the encouragement.
Presumed encouragement
Example B15
D, a critic, attends a concert. One of the performers is P. By performing at the concert, P is committing an offence because he does not have a work permit. D is aware of this.[80]
D's presence at the concert has made little difference to the outcome but it is presumed, by virtue of D being part of an audience for whom P is playing, that P is inspired to perform by D's presence as part of the audience.
Example B16
D and P agree to cause less than serious harm to V by punching and kicking him. In the course of the assault, P produces a knife and fatally stabs V. P's intention was to kill V. D knew that P had the knife and, fearing that he might use it, had prior to the attack stressed to P that he was not to use it.
There is a presumption that, in murdering V, P was encouraged by D's participation in the punching and kicking of V. The presumption is not negated merely by evidence that D expressed opposition to the use of the knife.
Why does the law presume that P is aware of D's encouragement and is in fact encouraged?
(1) that P was aware of D's acts or words of encouragement provided they were communicated or conveyed in circumstances where P could be aware of them; or
(2) that P was in fact encouraged by D's conduct.[81]
B.60 In the Supreme Court of Victoria, Justice Redlich sought to justify this conclusion:
It would impose an impossible burden on the prosecution, who would rarely be in a position to place evidence before a jury as to the effect of [D's] conduct on [P's] state of mind.[82]
… where violence is inflicted or sexual offending perpetrated in the presence of others, it would be a manifest nonsense to require proof that [P] were aware of the encouragement provided by each individual.[83]
Rebutting the presumption
Example B17
D comes across P and V in the middle of a fierce argument. D, a congenital troublemaker, urges P to punch V. Just before striking V, P tells D 'to mind his own business'.[84]
The presumption that D's words of encouragement made a contribution to P's assault on V is rebutted by the evidence of what P said to D.
B.63 The presumption can be rebutted even if there is a meeting of minds between P and D:
Example B18
D encourages P to murder V. P attends a football match at which, unknown to P, V is present. There is a riot in the course of which P murders an unknown person who turns out to be V.[85]
D is not an accessory to V's murder because the act of P was not done "within the scope of [D's] authority or advice."[86] It was pure coincidence that the victim turned out to be V.
Criticisms of the presumption
B.65 Although the presumption of actual encouragement is a useful construct through which to rationalise the case law in this area, it has several drawbacks. The most notable of these can be demonstrated by its application to collateral offences committed pursuant to a joint criminal venture. For example, in example B16, D agreed to become part of the joint criminal venture with P to commit less than serious harm to V, knowing that P might murder V. On these facts, a case can be made for the proposition that D, as well as P, should be liable for V's murder in the event that P murders V. However, to base this liability on a presumption that P was encouraged by D to commit murder fails to reflect the reality of the situation.[87]
Procuring
B.66 Where D's contribution consists of 'procuring' P to commit an offence, there is authority that there has to be a causal link between D's conduct and P's commission of the principal offence. In A-G's Reference (No 1 of 1975)[88] the Court of Appeal said:
To procure means to produce by endeavour. … Causation here is important. You cannot procure an offence unless there is a causal link between what you do and the commission of the offence ….[89]
Thus, the prosecution must prove that P would not have committed the offence but for D's conduct.[90]
THE FAULT ELEMENT OF SECONDARY LIABILITY
Introduction
In the nature of things the [state of mind required of D] must differ from that of [P]. The definition of the offence specifies the state of mind with which the act causing the actus reus must be done. [P] does the act but [D] does not. … . [D's state of mind] relates to what [P] does and the state of mind with which he does it.[91]
D's state of mind in relation to his or her own conduct
Intending the act of assistance or encouragement
B.69 D must intend to do the act of assistance or encouragement.
Example B19
D, following a day's grouse shooting, forgets to return his shotgun to the secure cupboard where he keeps his firearms. P, finding the shotgun in D's kitchen, uses it to murder V.
D is not guilty of murder because, although his conduct has assisted P to murder V, he did not intentionally leave the shotgun where P could find and use it to kill someone.
Intention to assist or encourage
B.70 According to Mr Justice Devlin:
… an indifference to the result of the crime does not of itself negate abetting. If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent whether the third man lives or dies, and interested only in the cash profit to be made out of the sale, but he can still be an aider and abettor. To hold otherwise would be to negative the rule that mens rea is a matter of intent only and does not depend on desire or motive.[92]
B.71 Yet, he also said that D had to have the "intention to aid".[93] This suggests a distinction between intending to aid (or encourage) and intending that the principal offence should be committed. In our view, although D must intend to do the act that assists or encourages P, it is generally not necessary that he or she should act in order to assist or encourage P. Were it otherwise, D would not be liable in cases where he or she rendered assistance or encouragement under duress. Yet, it is clear that in such cases, D can be convicted of the principal offence despite not acting in order to assist or encourage P.[94]
B.72 According to Professor Dennis, D intends to assist or encourage if D acts in order to render assistance or encouragement.[95] This can, but need not, involve a wish or desire on the part of D that the principal offence be committed. Accordingly, for Professor Dennis, it is possible to reject the view that D must share with P a common intent that the principal offence should be committed while still maintaining that D can and must act in order to assist or encourage P.
B.73 Support for Professor Dennis can be found in a number of authorities which speak of D having to intend to encourage purely in the sense of acting in order to render encouragement.[96] Nevertheless, our view is that the authorities, properly interpreted, do not support Professor Dennis.
B.74 The recent decision of the Court of Appeal in Bryce is not inconsistent with our view. The court contrasted an intention to aid with an intention to hinder or obstruct, holding that the latter is inconsistent with the former,[97] something that had already been recognised over 50 years earlier by Lord Chief Justice Goddard.[98] Bryce does not, however, support the wider proposition that, absent an intention to hinder or obstruct, D must act in order to render assistance or encouragement. Accordingly, the preferred view is that the prosecution only have to prove that D acted in order to assist or encourage P if there is an evidential basis supporting a claim that D acted in order to hinder or obstruct P or, arguably, if D is said to have encouraged P by nothing more than his or her voluntary presence during the offence.
D's awareness of the capacity of his or her conduct to assist or encourage
Example B20
D sells P some poison. D believes that P is going to murder V and that there is a 50% chance that P will use the poison to murder V. In the event, P does use the poison to murder V.
D's state of mind falls short of a belief that his act of assistance will assist P to commit murder but he does believe that his act is capable of assisting P to do so.
B.76 The case law is inconclusive.[99] Some authorities suggest that it suffices if D believed that his or her conduct was capable of assisting or encouraging P[100] while others suggest that D's belief must be that his or her conduct is encouraging P[101] or "will probably (or possibly and desirably) …" assist P.[102] Our recommendations will resolve this confusion.[103]
D's attitude towards the commission of the principal offence
B.77 It does not follow from the mere fact that D encourages or assists P to commit an offence that D does so in order that the offence should be committed. Admittedly, as a general rule, if D encourages P to commit an offence, this will be with a view to the offence being committed. D will not usually encourage P to commit an offence if D is indifferent as to whether it is committed. For this reason, in joint criminal ventures where D and P are mutually encouraging each other, it will usually be D's purpose that the agreed offence should be committed.[104] The same is not true of assistance. In example 1B, the shop assistant who sold P a baseball bat did not do so in order that P should commit an assault.
B.78 The general consensus amongst commentators is that the preponderance of authority supports the view that the prosecution does not have to prove that D assisted or encouraged P intending that the principal offence should be committed.[105] The strongest support for this view is the passage from the judgement of Mr Justice Devlin in NCB v Gamble cited in paragraph B.70 above.
D's state of mind in relation to the principal offence
Knowing the essential matters of the principal offence
Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence.[106]
This seemingly simple statement raises a number of difficult issues particularly where D's assistance precedes the commission of the principal offence.[107] There are two central and overlapping issues:
(1) what are the 'essential matters' of the principal offence?
(2) what state of mind is denoted by 'know'?
The 'essential matters' of the principal offence
THE CONDUCT ELEMENT OF THE PRINCIPAL OFFENCE
B.83 Whether the conduct element of the principal offence is always an essential element of which D must have knowledge depends on how the decision of the Court of Criminal Appeal in Bainbridge[108] is interpreted. D provided P with cutting equipment which P used to commit the conduct element of burglary, namely to break into a bank as a trespasser and thereafter appropriate property. D said that he thought that the equipment would be used to perpetrate conduct that did not constitute the conduct element of burglary, namely the handling and cutting up stolen property. The trial judge directed the jury that D could be convicted of burglary only if he knew that P intended to use the equipment to break into a bank and steal property from the bank. He also directed that, if D did have that knowledge, it was legally irrelevant that D did not know the date and location of the burglary. D was convicted of burglary and on appeal his conviction was upheld.
B.84 This suggests that the conduct element of the principal offence, but not its details, is an essential element of which D must have knowledge. However, Lord Chief Justice Parker, approving the trial judge's direction to the jury, said there must be "knowledge that a crime of the type in question was intended".[109] In the view of some commentators, Lord Parker's reference to 'type' has opened up the prospect of D being convicted of an offence the conduct element of which was different from the offence that he or she believed P was intending to commit:
Example B21
D provides a stolen credit card to P believing that it is P's intention to use it to obtain property by deception. Instead, P uses the card to commit burglary by slipping the latch on V's door, entering V's property and stealing V's stereo recorder.[110]
On one view, obtaining by deception and burglary are offences of the same 'type' because they are offences of dishonesty and each involve an intention to permanently deprive the victim of his or her property. On this view, the fact that their respective conduct elements are different is of no consequence.
B.85 However, while acknowledging that the word 'type' is not free from ambiguity, we believe that commentators may have read too much into its use by Lord Parker. His judgment has to be seen in the context of the trial judge's summing up. The trial judge had directed the jury that the defendant "must know the type of crime that was in fact committed. In this case it is a breaking and entering of premises and the stealing of property from those premises".[111] Lord Parker, approving the direction, said:
In his reference to the felony of the type intended it was, as he stated, the felony of breaking and entering premises and the stealing of property from those premises.[112]
In our view, it is arguable that, far from endeavouring to expand the scope of secondary liability, Lord Parker was seeking to restrict it. On this view, in referring to 'type', he was emphasising that D should be held liable for a principal offence only if he or she knew that it was conduct falling within the definition of that offence, the one that P was intending to perpetrate.
Example B22
In return for payment, D acts as a lookout while P takes V's car without V's consent. D believes that P intends to use the car for some 'joyriding' and will then return it. In fact, P takes the car and sells it to X.
There are two relevant offences: taking a motor vehicle without the consent of the owner[113] and theft (of a motor vehicle).[114] The conduct (and circumstance) element of each offence is identical – appropriation of a motor vehicle. However, the offences are distinguished by their different fault elements – theft requires a dishonest intention to permanently deprive whereas taking without consent is merely dishonest borrowing.
B.88 Accordingly, properly interpreted, Bainbridge is authority for the following propositions of law:
(1) it is not enough that D knows that P is intending to do 'something' unlawful;
(2) D must know that P intends to do an act that falls within the definition of the conduct element of the offence that P in fact commits but does not have to know the details of the act;[115] and
(3) the fact that D does know that P intends to do an act that falls within the definition of the conduct element of the principal offence does not in itself render D liable.
Variation in the details of the conduct element[116]
B.89 Bainbridge establishes that D does not have to know the details of the act that constitutes the conduct element. Thus, if D sells P some petrol believing that P will use the petrol to make a petrol bomb with which to commit arson, it matters not that D has no idea which property P will set fire to.[117] Likewise, D may be liable if he or she encourages P to attack V with a broken beer glass but, instead, P does so with a broken beer bottle.
If a man command another to commit a Felony on a particular Person or Thing, and he does it on another; as to kill A and he kills B or to burn the house of A and he burns the house of B or steal an Ox, and he steals a Horse; or to steal such Horse, and he steal another; … the Commander is not an Accessory because the Act done varies in Substance from that which was Commanded.[118]
Although, in this passage, Hawkins does not attach importance to whether or not the variation was deliberate, it has come to be accepted that this is a crucial factor. Accordingly, if D hands a broken beer glass to P so that P can attack V1 but, instead, P uses the glass to deliberately attack V2, D is not an accessory to the assault.[119]
B.91 By contrast, D's liability is unaffected by an accidental or mistaken change of victim or outcome:
Example B23
D hands P a broken beer glass so that P can attack V1. P, intending to strike V1, accidentally strikes V2 with the glass.
P is guilty of malicious wounding[120] by virtue of the doctrine of transferred malice and so too is D.[121]
Example B24
D, a racist, pays P £500 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.
Being a racist, D is unlikely to be disappointed that the public house has been burned down.[122]
THE CIRCUMSTANCE ELEMENT OF THE PRINCIPAL OFFENCE
Example B25
D sells petrol to P believing that P is going to make a petrol bomb with which to set fire to P's isolated country cottage, with a view to making a false insurance claim. P does use the petrol to make a bomb but instead uses it to set fire to the house of his enemy, V.
P is guilty of arson.[123] Arson is an offence that consists of three elements: conduct (an act or omission which creates a fire), consequence (damaging or destroying property) and circumstance (the property belongs to another person). D believed that P would perpetrate the conduct element of the offence and that the consequence element would ensue. However, because D believed that P would set fire to his own property, D did not believe that the circumstance element of arson would be satisfied. As a result, D is not guilty of arson.
B.94 The circumstance element of an offence is an essential matter even if it is a no-fault offence.[124] A no-fault offence is one that P can commit even though he or she is not at fault in relation to the circumstance element:
Example B26
P is a learner driver. Shortly before leaving home for his driving lesson, he has an orange juice at home. Unknown to P, his eight-year-old son had poured some vodka into the orange. While on his lesson under the supervision of his instructor D, P has a minor collision another vehicle. P is breathalysed and is found to be slightly over the limit.
P is guilty of driving with excess alcohol despite not knowing and having no reason to know that he was over the limit. By contrast, D is not liable for P's offence because D did not know that P was over the limit.
THE CONSEQUENCE ELEMENT OF THE PRINCIPAL OFFENCE
B.95 The position with regard to the consequence element of the principal offence is more complicated. The general rule is the same as for the circumstance element, namely that the consequence element is an essential matter of which D must have 'knowledge'.[125] However, consider the following example:
Example B27
D holds V so that P can punch V. The intention of D and P is merely to give V a black eye.[126] Unfortunately, the impact of the punch causes P to fall over. He strikes his head against the kerb and sustains an injury from which he dies.
P is guilty of (unlawful and dangerous act) manslaughter. P's act was dangerous because it would have been obvious to any reasonable person that a punch to the face would subject V to the risk of some harm, albeit not serious harm. D, although not at fault in relation to the consequence, is also guilty of manslaughter because in this example the consequence is not an 'essential matter'. Why is this?
B.96 As we explained in the first report,[127] P can be guilty of some offences that have a consequence element despite not being at fault in relation to the defined consequence. These are constructive liability offences and they include some of the most serious offences, for example, murder, manslaughter, unlawful and malicious wounding and causing death by dangerous driving. They are the counterpart of no-fault offences where P can be convicted despite not being at fault in relation to the circumstance element. We noted above[128] that for the purposes of secondary liability the circumstance element is always an essential matter of which D must have knowledge. The common law could have adopted a similar position in relation to D's liability for constructive liability offences. Instead, however, the starting point of the common law is that the consequence element of a constructive liability offence is not an essential matter of which D must have knowledge.
Example B28
D and P agree to inflict less than serious harm on V by punching him. In the course of the assault, P pulls out a knife which D was unaware that P had. P fatally stabs V.
We consider how the courts have addressed the issue of whether D is liable for the consequence – V's death - after explaining what is meant by D having to 'know' the essential matters.[129]
P'S STATE OF MIND IN RELATION TO THE PRINCIPAL OFFENCE
Example B29
D and P share a flat. D drives P to the local supermarket. D waits in the car. A little later, P emerges from the store carrying bags of food. D drives them home. P did not pay for the food but D believed that he did.
In order to be convicted of theft, P must 'dishonestly' appropriate property belonging to another. In example B29, P has done so. However, D is not guilty of theft because, although he intended that P should perpetrate the conduct element of theft, D believed that P would pay for the food.
'Knowledge' of the essential matters[130]
NO JOINT CRIMINAL VENTURE[131]
(1) in relation to the conduct element, D believes that P intends to perpetrate the conduct element;
(2) in relation to the circumstance element, D believes that, if P perpetrates the conduct element, he or she will do so in the circumstances proof of which is required for conviction of the offence;
(3) in relation to the consequence element, D believes that, if P perpetrates the conduct element, he or she will do so with the consequences proof of which is required for conviction of the offence.
B.102 The following example illustrates (3):
Example B30
P tells D that he wants to borrow D's rifle so that he can shoot at and cause grievous bodily harm to V. D, who has his own reasons for placating P, gives his rifle to P. However, D does so believing that, given the distance between P and V combined with P's poor eye sight, P will miss the target. In the event, P's shot hits V causing grievous bodily harm.
P is guilty of causing grievous bodily harm with intent.[132] Although D believed that P would perpetrate the conduct element of the offence, he did not believe that the consequence element would materialise. Accordingly, applying Johnson v Youden, D is not guilty of the offence.[133]
B.103 Following Johnson v Youden, the courts twice considered the liability of licensees of public houses who were charged with aiding, abetting, counselling or procuring their customers to commit the strict liability offence of consuming intoxicating liquor outside permitted hours.[134] In each case, D's conduct was contemporaneous with the commission of the principal offence. In each case, the Divisional Court held, that to be liable, D had to know that customers were consuming alcohol outside the permitted hours.
B.104 In Bainbridge,[135] the Court of Criminal Appeal applied Johnson v Youden in a case where D's assistance was antecedent to the commission of the principal offence. The trial judge directed the jury that D was guilty of burglary if he knew that P would use the cutting equipment that D had provided to break into a bank. In dismissing D's appeal, Lord Chief Justice Parker said:
… there must be not merely suspicion but knowledge that a crime of the type in question was intended, and that the equipment was bought with that in view.[136]
B.105 In the CP, the Commission said that this aspect of Bainbridge was "troublesome":
It is too narrow in that the requirement of knowledge, taken literally, would exculpate [D] who, because of his suspicions, was in effect reckless as to whether the principal crime was committed.[137]
B.106 In Maxwell[138] D drove P to the vicinity of an inn. D believed that there was to be an attack, not necessarily on the inn, involving violence in which persons would be endangered or premises seriously damaged. D was uncertain whether the attack would be perpetrated by bomb, bullet or other means but he knew that there would be some form of attack. In the event, P threw a pipe bomb containing explosive into the inn. Fortunately, no one was injured. D was convicted of being an accessory to two offences under the Explosive Substances Act 1883.[139] The House of Lords upheld D's conviction.
Example B31
In return for payment, D drives P to the vicinity of V's house. D does so in the belief that P will commit murder, robbery or burglary but is unsure which one P will commit. In the event, P murders V.
D is guilty of murder because murder falls within the range of offences that P believed might be committed. Had P instead committed criminal damage, D would not have been liable for the offence because criminal damage was not amongst the offences that D believed might be committed.
The subsequent case law
B.109 Although the House of Lords on two occasions[140] has approved Johnson v Youden, subsequent cases suggest that D can be convicted of the principal offence even if his or her state of mind falls short of a belief that P:
(1) intends to perpetrate the conduct element; or
(2) will do so in the circumstance proof of which is required for conviction of the offence; or
(3) will do so with the consequence proof of which is required for conviction of the offence.
However, in our view, these authorities[141] are not only inconsistent with each other but also reliant on cases of joint criminal venture where different principles apply. In addition, the courts' observations were unnecessary to the decisions.[142]
B.110 In Carter v Richardson[143] the issue was D's state of mind in relation to the circumstance element of the principal offence. D was the supervisor of P, a learner driver. The magistrates found as a fact that D knew that P had been drinking alcohol and was over the prescribed limit. Accordingly, they convicted D of driving with excess alcohol by virtue of having aided and abetted P to commit the offence. The magistrates' finding of fact was sufficient to dispose of P's appeal because the finding was that D knew that P was in excess of the prescribed limit. However, the Divisional Court upheld the conviction on the ground that it sufficed that D believed that P's blood alcohol was probably in excess of the prescribed limit.
B.111 The offence at issue in Carter v Richardson – driving with excess alcohol – was a no-fault offence. We explained above[144] that, in determining D's liability, the circumstance of a no-fault offence is an essential element of the offence even though P can be convicted without being at fault in relation to the circumstance. It is possible to accord Carter v Richardson a restricted interpretation, namely that, in relation to no-fault offences, it relaxes the requirement that D must know or believe that the circumstance element of the principal offence is or will be satisfied.[145]
B.112 In Blakely and Sutton v DPP,[146] D 'laced' P's non-alcoholic drink because she did not want P to drive when in excess of the prescribed limit. Her intention was to inform P of what she had done but, unfortunately, P, in excess of the prescribed limit, drove off before she could do so. It was a case, therefore, where D intended to bring about the circumstance element of the offence but not the conduct element. D was convicted of driving with excess alcohol by virtue of having procured P to commit the offence. The Divisional Court quashed her conviction on the basis that it was possible that the magistrates had applied an objective test of recklessness.[147] That was sufficient to dispose of the appeal. However, McCullough J went on to say that in cases where D's conduct precedes the commission of the principal offence, it had to be proved that D "contemplated that his act would, or might, bring about or assist the commission of the principal offence".[148]
B.113 In Reardon[149] P shot two men in the bar of a public house and carried them out into the garden. P returned to the bar and asked D for the loan of D's knife saying that he needed it to finish off one of the men who was still alive. The medical evidence showed that both men died from a stab wound inflicted with D's knife. D was convicted of murder as an accessory to both killings. Both convictions were upheld on the ground that the jury must have found that D intended to assist one murder but had also foreseen that there was "at least the strong possibility" that two murders would be committed. Professor Sir John Smith commenting on the decision said that:
…it appears to decide that the principles applicable to an accessory who shares a common purpose with the principal are equally applicable to an accessory who does not.[150]
The judgment was unreserved and is based on authorities[151] which were concerned with D's liability in cases where D was a party to a joint criminal venture where different principles apply.
B.114 In Bryce[152] the Court of Appeal said that it suffices if D "contemplates" the commission of the principal offence in the sense of realising that "it is a real possibility that it will be committed".[153] This was stated as a general proposition applying to both non-joint criminal ventures and joint criminal ventures. However, the Court of Appeal relied on Rook[154] which was a case of joint criminal venture. Further, the judgment of the Court wrongly cites Bainbridge[155] as authority for the proposition that D aids P to commit an offence if D provides P with assistance realising that "there is a real possibility"[156] that it will be used to commit an offence of a particular type.
B.115 In Webster,[157] D was giving P and V a lift home in D's car. During the journey, D allowed P to drive the car. P drove the car erratically and at excessive speed as a result of which it left the road. V was killed. D was charged with aiding and abetting P to cause death by dangerous driving. In evidence D said that he knew P had been drinking alcohol. The Court of Appeal quashed D's conviction because the trial judge had directed the jury that D was guilty if, at the time that he allowed P to drive, he recognised, or it would have been obvious to him, that it was dangerous to let P drive. That was an incorrect direction because it focused on the wrong issue. Clearly, if D knew that P had been drinking alcohol, he knew that there was a danger in letting P drive. It did not follow, however, that D knew or believed that P would or might in fact drive dangerously.
Example B32
P asks D for the details of V's address. P refuses to say why he wants V's address but D believes it might be because P wants to have sexual intercourse with her. D also believes that, if so, should V not consent to sexual intercourse, P might compel her to have intercourse with him. Anxious to secure favour with P, D provides him with V's address. In the event, V refuses to consent to intercourse and P rapes V.
With regard to the conduct element of rape, penetration, D's liability appears to depend on determining whether he foresaw it as a possibility, a real possibility, a strong possibility or a likelihood and, having done so, deciding which of the recent 'authorities' to apply. The same is true of the circumstance element, V's lack of consent, save that, if Carter v Richardson is not confined to no-fault offences, D would be liable only if he believed that it was 'probable' that V would not consent.
JOINT CRIMINAL VENTURES[158]
Liability for the agreed offence
B.119 However, in Rook[159] D, exceptionally, did not intend that the agreed offence should be committed. D participated in a plan to murder V. However, at his trial D testified that it was never his intention that D should be killed. Instead, D said that his intention was, having been paid, to absent himself on the day of the murder in the (mistaken) belief that, because of his absence, P would desist from murdering V. The trial judge directed the jury that D was guilty of murder if he had foreseen that P would probably murder V. The Court of Appeal held the direction was too generous to D. D was guilty of murder if he foresaw that there was a real or substantial risk that P might murder V.
Liability for a collateral offence
B.121 In Rook, the Court of Appeal, without needing to, applied the decision of the Privy Council in Chan Wing-siu.[160] In that case, D was a party to a joint criminal venture to commit robbery. In the course of the robbery, V was murdered. It was unclear who had murdered V. The trial judge directed the jury that D was guilty of murder if he had contemplated that one of the parties to the joint criminal venture might attack V intending to cause V serious bodily harm. The Privy Council upheld D's conviction.
B.122 Subsequently in Hui Chi-Ming v R, Lord Lowry, delivering the opinion of the Privy Council, stated:
… [D], in order to be guilty, must have foreseen the relevant offence which [P] may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise.[161]
Example B33
D and P agree to commit a burglary at V's premises. D foresees that if V disturbs them, P may rape her. V does disturb them and, as D feared, P rapes her.
D is guilty of rape.
COMPLICITY AND THE LAW OF HOMICIDE
B.124 The problem which the courts have grappled with can be stated simply: if P and D are parties to a joint criminal venture which, as far as D is concerned, does not have as its object the intentional killing of V,[162] to what extent if any, should D be held responsible for V's death in the event that P kills V? The courts have struggled to provide a satisfactory answer.
B.125 In practice, prior to English,[163] the question fell for consideration in two ways:
(1) the offence that P and D agreed to commit, for example burglary or assault occasioning actual bodily harm, did not involve the use or threatened use of serious violence against V. Further, D did not foresee that P might do an act intending to kill or cause serious bodily harm to V. However, in the course of the venture, P did such an act ("the lethal act") and V died:
Example B34
D and P agree to inflict less than serious harm on V by punching him. In the course of assaulting V, P pulls out a knife, which D was unaware that P had, and fatally stabs V. P is charged with murder, and D is charged with manslaughter.
The issue was whether D should be convicted of manslaughter or completely exonerated from liability for V's death.[164] On one view, it might be thought that if, in example B27, D is guilty of manslaughter, he also ought to be guilty of manslaughter in example B34.
(2) The offence that P and D agreed to commit (the agreed offence) did not involve the use or threatened use of serious violence against V. However, D did foresee that P might do an act intending to kill or cause serious harm to V. In the course of the venture, P did such an act and V died:
Example B35
D and P agree to commit burglary at V's premises. D foresees that if V disturbs them, P might attack V intending to kill or cause serious harm to V. D implores P not to use any violence against V. As D feared, V does disturb them and P murders her.
The issue was whether, despite not satisfying the fault element of murder, D should be convicted of murder because he foresaw that P might murder V. If not, should D be convicted of manslaughter?
The authorities prior to 1997
B.126 Reflecting (1) and (2) above, two parallel but distinct lines of authority, each unsatisfactory, developed. In relation to (1), the Court of Appeal was unable to adopt a consistent line. In some cases, the court upheld D's conviction for manslaughter[165] while in others it quashed D's conviction.[166]
B.127 In relation to (2), as noted above, in Chan Wing-sui[167] the Privy Council held that foresight that P might attack V intending to kill or cause serious harm rendered D liable for murder if P did so and killed V. However, subsequently, the Court of Appeal vacillated in cases that called for consideration of Chan Wing-sui.[168]
Powell and Daniels, English[169]
B.128 On one view, the rule established in Chan Wing-siu, namely that D is guilty of murder if, participating in a joint criminal venture, he or she foresees that P might attack V intending to kill or cause serious bodily harm to V, is severe on D. On this view, it is particularly severe if D foresees that P might attack V not with the intention of killing V but with the intention of causing serious but non-lethal harm to V. The problem arose in 1997 in the conjoined appeals of Powell and Daniels, English.[170]
B.130 In English, D and P agreed to attack V by assaulting V with wooden posts. As far as D was concerned, the shared intention was to cause injury to but not to kill V. In the course of the attack, P pulled out a knife, which D maintained he was unaware that P had, and killed V. The trial judge, in accordance with Hyde[171] directed the jury that they could convict D of murder if he had foreseen that P might attack V intending to kill or cause serious injury to V. As such, the direction enabled the jury to convict D irrespective of what particular act he foresaw P might perpetrate provided that they were sure that D had foreseen that P might attack V intending to kill or cause serious bodily harm. D was convicted of murder.[172]
… to be guilty under the principle stated in Chan Wing-siu v R [D] must foresee an act of the type which [P] committed, and that in the present case the use of the knife was fundamentally different to the use of a wooden post.[173]
D was not guilty of murder because although he had intended or foreseen that P might attack V intending to cause serious harm, the act that killed V was 'fundamentally different' from the act that D had anticipated. P's lethal act was outside the scope of the joint criminal venture. Since it was outside the scope of the venture, not only was D not guilty of murder but, according to Lord Hutton, he was also not guilty of manslaughter.
The issues arising from Powell and Daniels, English
DISTINGUISHING ACTIONS FROM THE INTENTIONS WITH WHICH THEY ARE DONE?
B.133 In Van Hoogstraten,[174] Sir Stephen Mitchell said that "…foresight defines the scope of the joint [criminal venture]". In that regard, he set out a two-step test to determine whether D is liable for the killing of V by P. First, the task of the trial judge is to identify correctly the act of P that caused V's death. It is then for the jury to determine whether or not D foresaw that P might do that act. If the jury is not sure that D did so foresee, they should acquit D of both murder and manslaughter.
B.136 At a preparatory hearing, Sir Stephen ruled that the act which caused V's death was the deliberate discharge of a loaded firearm deliberately aimed at V. With the prosecution having already conceded this point, it was found that this was not an act that any reasonable jury could conclude had been foreseen by D. Accordingly, D could not be liable for V's death. In Attorney-Generals Reference (No 3 of 2004)[175] the Court of Appeal upheld Sir Stephen's ruling but on a different basis. Agreeing with Sir Stephen that the crucial question was identifying the act that caused V's death, the court said that the answer was to be found by applying the 'fundamentally different" test. The court stated, incorrectly, that Sir Stephen had applied that test and had properly ruled that the act that caused V's death was fundamentally different from that foresee by D.
THE SCOPE OF THE 'FUNDAMENTALLY DIFFERENT' ACT RULE
(1) D foresaw that P might kill V intending to kill V, and P does kill V with that intent. In principle, both D and P have committed murder;
(2) D foresaw that P might kill V intending to cause V serious bodily harm. An example would be if D foresaw that P might knee-cap V intending to cause serious harm but not to kill. Nevertheless, D realised that the knee-capping might result in V's death. P intentionally kills V in some other way. In principle, both D and P have committed murder; and
(3) D foresaw that P might cause serious harm to V intending to cause serious harm to V. P intentionally kills V. In principle, both D and P have committed murder.
B.139 In English, the issue of D's liability for a "fundamentally different" lethal act was confined to (3). Subsequently, the Court of Appeal in Rahman[176] has held that in (1), D cannot take advantage of the "fundamentally different" rule. Thus, if D foresees that P might kick V to the head intending to kill V and, instead, P murders V by stabbing V, D is guilty of murder. By contrast, the Court of Appeal also said that in (2), D can take advantage of the "fundamentally different" rule.[177]
DETERMINING WHETHER THE LETHAL ACT IS 'FUNDAMENTALLY DIFFERENT'
The relevance of P's state of mind in perpetrating the lethal act
B.140 In Attorney General's Reference (No 3 of 2004)[178] the prosecution submitted that as a matter of law a lethal act perpetrated by P cannot be 'fundamentally different' if the only difference between it and the act foreseen by D was P's state of mind in perpetrating it. The Court of Appeal rejected the submission.
B.141 Does it follow that P's state of mind in perpetrating the lethal act is a factor that the jury is entitled to take into account in deciding whether the act is 'fundamentally different'? In Gilmore[179] the Court of Appeal of Northern Ireland said that it was 'conceivable that in some cases the nature of the principal's [state of mind] may change the nature of the act committed by him….'[180] However, in Van Hoogstraten, Sir Stephen Mitchell said that attention should at first be focused on the act that caused death than rather than upon the state of mind of P.
B.142 In Rahman[181] D was convicted of murder following a direction by the trial judge that D was guilty of murder if he foresaw that in the course of attacking V, P might produce and use a knife intending to kill or cause serious harm to V. On appeal, it was submitted that the jury should have been directed that when considering whether the lethal act was 'fundamentally different' they should take into account that P's intention was or may have been to kill and not merely to cause serious harm.[182]
B.143 The Court of Appeal rejected the submission. Lord Justice Hooper referred to Attorney General's Reference (No 3 of 2004).[183] He said that in that case what made the act 'fundamentally different' from that foreseen as a possibility by D was not that P had deliberately discharged the firearm at V intending to kill. Rather, it was the deliberate discharge of the firearm at V rather than in the vicinity of V.
The relevance of the weapon used by P
B.144 In English, P and D agreed to attack V by hitting him with wooden posts. In the event, P used a knife to fatally stab V. The House of Lords was in no doubt that the use of the knife was a 'fundamentally different' act. Lord Hutton referred with approval to Gamble.[184] In that case P and D agreed to shoot V in the knees. Instead, P murdered V by slitting his throat. Beyond this, P fired four bullets into V's head. The bullets would have killed V had he not died from the slitting of his throat. Mr Justice Carswell, without employing the language of 'fundamentally different', held that D was not criminally responsible for V's death. Lord Hutton, although he thought it was debatable, through that the same result should follow had V died from the bullet wounds:
…if the weapon used by the primary party is different to but as dangerous as the weapon that the secondary party contemplated he might use, the secondary party should not escape liability for murder because of the difference in the weapon, for example, if he foresaw that the primary party might use a gun to kill and [he] used a knife to kill or vice-versa.[185]
B.146 Assuming that D did not foresee that P might attack V intending to kill, if P kills V by employing a weapon that D did not contemplate, or by using it in a way that D did not contemplate, it will be a question of fact whether the use of the weapon was a 'fundamentally different' act. There has been very little in the way of guidance for juries.[186] The case of Gilmore[187] illustrates the problem. D had driven P to the house knowing that the house was occupied and that P intended to petrol bomb it. However, D believed the petrol bomb to be much smaller than was the case. D believed that the bomb would damage the property and cause fear to the occupants but would not harm them. P, aware of the size of the petrol bomb, threw it into the house. The occupants were killed. P and D were convicted of murder. The Court of Appeal of Northern Ireland quashed D's conviction for murder in the light of D's belief in the size and impact of the bomb. However, it substituted a conviction of manslaughter because the act carried out by P (the throwing of a petrol bomb into an occupied property) was the very act contemplated by D. The fact that the bomb used was much larger than the one contemplated by D was beside the point.[188]
The most recent guidance
B.147 The most recent decision is that of the Court of Appeal in Rahman.[189] Lord Justice Hooper said that the proper approach is reflected in the four following questions:
"1. What was P's act which caused the death of V? (eg, stabbing, shooting, kicking, beating).[190]
2. Did D realise that one of the attackers might do this act? If yes, guilty of murder. If no go to the next question.
3. What act or acts did D realise that one of the attackers might do to cause V really serious injury?
4. Is this act or are these acts which D realise that one of the attackers might do, of a fundamentally different nature to P's act which caused the death of V? If yes, not guilty of murder. If no, guilty of murder."
B.148 The provision of this guidance is welcome.[191] However, the guidance brings into focus two further weaknesses within the current law.
NO LIABILITY FOR NOT ONLY MURDER BUT ALSO MANSLAUGHTER
B.152 English clearly decides that if the act that caused V's death was fundamentally different and therefore one for which D is not responsible, as well as being not guilty of murder, D is not guilty of manslaughter. There is no halfway house as far as liability for V's death is concerned.[192] The decision opens up the prospect of D escaping all liability for V's death even in cases where D's intention was that V should suffer serious, albeit non-lethal, harm. Lord Hutton made no reference to the line of authority[193] which had previously held that, if D is a party to a joint criminal venture involving the use or threatened use of unlawful violence against V, D can be convicted of manslaughter even though he or she had not foreseen the lethal act. The status of that line of authority is, therefore, uncertain.[194] However, subsequent cases have confirmed that D is not guilty of either murder or manslaughter.
Note 1 The corresponding provision for summary offences is Magistrates’ Courts Act 1980, s 44. [Back] Note 4 Criminal Law Act 1977, s 1 (conspiracy) and Criminal Attempts Act 1981, s 1 (attempt). [Back] Note 5 Subject to the qualification that the Criminal Attempts Act 1981 does not apply to ‘summary only’ offences. [Back] Note 6 For further discussion see R A Duff, Criminal Attempts (1996) pp 141 to 143. [Back] Note 7 (1846) 2 C & K 230, 175 ER 95. [Back] Note 8 The Australian courts have moved away from maintaining the conceptual distinction. In Osland v R (1998) 73 ALJR 173 it was said that all those involved in a joint criminal venture are principal offenders regardless of the nature of their participation. [Back] Note 9 Swindall and Osborne (1846) 2 C & K 230, 175 ER 95; Du Cros v Lambourne [1907] 1 KB 40; Mohan v R [1967] 2 AC 187. In Giannetto [1997] 1 Cr App R 1 the Court of Appeal applied the Canadian case of Thatcher v R (1987) 39 D.L.R. (4th) 275 in holding that D could properly be convicted even if some of the jury thought that he or she was a principal offender and some thought that he or she was a secondary party. [Back] Note 10 Dias [2001] EWCA Crim 2986; [2002] 2 Cr App R 5. In addition, D ought not to be liable as a principal offender for P’s death unless the jury find that the voluntary and informed act of self-injection by P has not broken the chain of causation between D’s unlawful act of supply and P’s death. However, in recent decisions where D has assisted P to self-inject, the Court of Appeal has held that D can be convicted of manslaughter as a principal offender - Rogers (Stephen) [2003] EWCA Crim 945; [2003] 1 WLR 1374; Finlay [2003] EWCA Crim 3868, [2003] WL 23145128; Kennedy (Simon) [2005] EWCA Crim 685, [2005] 1 WLR 2159. In this way it has attempted to circumvent what are perceived to be the unsatisfactory consequences of applying orthodox principles. If these decisions were to be applied more widely, the distinction between liability as a principal offender and liability as a secondary party would start to break down. [Back] Note 11 P is not guilty of murder because it was not P’s intention to kill or cause really serious harm. However, P is guilty of manslaughter by virtue of having done an unlawful and dangerous act that caused V’s death. The act was dangerous, even on P’s belief that he was firing blanks, because P was aware of V’s heart condition –Dawson (1985) 81 Cr App R 150; Watson [1989] 1 WLR 684. [Back] Note 12 However, as will become apparent, English law in this respect has retreated from the derivative theory of secondary liability. By contrast, if P commits a more serious offence than the offence that D intended or believed that P would commit, convicting D of the less serious offence is not inconsistent with the derivative theory of secondary liability. [Back] Note 13 In Giannetto (1997) 1 Cr App R 1 the Court of Appeal noted, without disapproval, the trial judge’s direction that D could be liable as an accessory to murder if P suggested the crime and D, patting P on the back and nodding, said “Oh goody”. Delivering the judgment of the Court of Appeal, Lord Justice Kennedy- said (p 13) that any involvement from “mere encouragement upwards” suffices. [Back] Note 14 See paras B.49 to B.65 below. [Back] Note 15 This led to the distinction, nowadays of no consequence, between principals in the second degree (those present at the commission of the principal offence) and accessories before the fact (those not present). The former could be convicted even if the principal offender was not. [Back] Note 16 As in DPP v K & B [1997] 1 Cr App R 36. Further, in Anthony [1965] 2 QB 189 it was held that D may be tried and convicted even if identification of P is impossible. [Back] Note 17 Evidence that P was acquitted is not even admissible at D’s trial –Hui-Chi-Ming v R [1992] 1 AC 34. If D and P are tried together, the acquittal of P does not in itself preclude D being convicted provided the evidence is not the same against both – Hughes (1860) Bell CC 242; Surujpaul v R [1958] 1 WLR 1050; Humphreys [1965] 3 All ER 689 (Crown Court). [Back] Note 18 By external elements, we mean those elements of an offence that come within the term ‘actus reus’, namely conduct, circumstance and consequence. [Back] Note 19 Apart from murder, attempted murder and, possibly, some forms of treason, duress is available as a complete defence if a person commits what would otherwise be an offence as a result of being threatened with death or serious injury if a reasonable person might have responded to the threat as D did. However, although a complete defence, duress does not negate the fault element of the offence. [Back] Note 20 The minimum age of criminal responsibility - Children and Young Persons Act 1933, s 50 (as amended by the Children and Young Persons Act 1963, s 16(1)). [Back] Note 21 The external elements of the offence of burglary are satisfied. D has entered V’s property and taken an item without V’s consent – Theft Act 1968, s 9. However, P has not satisfied the fault element of the offence because P was unaware that D had not acted on V’s authority. P believed that V was consenting and was therefore not ‘intending’ to commit theft – Theft Act 1968, s 9(1). [Back] Note 22 In example B3, D’s conduct consists of assistance and not encouragement and, therefore, D cannot be convicted of incitement to cause grievous bodily harm. There is no equivalent common law inchoate offence to capture cases where D’s conduct consists only of assistance. The recommendations in the first report would fill this gap in the law. [Back] Note 23 Cogan and Leak [1976] QB 217. [Back] Note 24 K J M Smith, A Modern Treatise on the Law of Criminal Complicity (1991) p 94. [Back] Note 25 A no-fault offence is one that P can commit without being at fault in relation to the circumstance element of the offence. [Back] Note 26 Contrary to the Road Traffic Act 1988, s 5(1)(a). The offence is a no-fault offence because P can commit the offence even though he or she does not know, and could not have known, that the circumstance element of the offence – having a level of alcohol in the body in excess of the prescribed limit – is satisfied. [Back] Note 27 The old case of Tyler and Price (1838) 8 C. & P. 616, 172 ER 643 lends some support for the view that something less than intention suffices. [Back] Note 28 An example provided by Professor K J M Smith, A Modern Treatise on the Law of Criminal Complicity (1991) p 106. [Back] Note 29 Contrary to the Offences against the Person Act 1861, s 57. [Back] Note 30 Tolson (1889) 23 QBD 168. [Back] Note 31 Cogan and Leak [1976] QB 217. [Back] Note 32 E.g. Glanville Williams, Textbook of Criminal Law (2nd ed 1983) p 371. [Back] Note 33 Sexual Offences Act 2003, s 1(1)(c). [Back] Note 35 The Court of Criminal Appeal held that there was an alternative basis for convicting D of rape, namely that D had ‘procured’ P to commit the conduct element of the offence of rape. [Back] Note 36 Glanville Williams, Textbook of Criminal Law (2nd ed 1983) p 371. [Back] Note 37 In DPP v K & B [1997] 1 Cr App R 36 counsel for the prosecution submitted that a woman could be convicted of rape as a principal offender by virtue of the doctrine of innocent agency. The court did not have to decide whether the submission was correct. In People v Hernandez (1971) 18 Cal. App (3d) 651 the Supreme Court of California held that D, a woman, who had compelled her husband to have sexual intercourse with a non-consenting woman had been properly convicted as a principal to rape. The Supreme Court of Virginia arrived at the contrary conclusion in Dusenbery v Commonwealth (1980) 220 Va. 770. [Back] Note 38 A-G’s Reference (No 1 of 1975) [1975] QB 773. [Back] Note 40 A J Ashworth, Principles of Criminal Law (4th ed 2003) p 423. [Back] Note 41 After all, only P has driven the motor vehicle. However, we believe that in such circumstances D ought to be convicted as a principal offender, albeit it not of the principal offence that P commits but of causing P to commit the offence – see Part 4 paras 4.28 to 4.37. [Back] Note 42 Cogan and Leak [1976] QB 217; Millward [1994] Criminal Law Review 527; DPP v K and B [1997] 1 CR App R 36. [Back] Note 43 Principles of Criminal Law, (4th ed 2003) p 435. [Back] Note 47 [1978] 1 WLR 1350. [Back] Note 48 In Mercer [2001] EWCA Crim 638, [2001] WL 542166 it was held that there is no violation of Article 6(3) of the European Convention on Human Rights and Fundamental Freedoms where the prosecution alleges that the accused was a party in a joint criminal venture but cannot specify his or her precise role. [Back] Note 49 It is not uncommon for the particulars of the offence to refer to all four words but for the statement of the offence to be confined to the particular mode of participation alleged. For an example see JF Alford Transport Ltd (1997) 2 Cr App R 326. [Back] Note 50 In JF Alford Transport Ltd (1997) 2 Cr App R 326 the Court of Appeal said that the trial judge had been right to direct the jury that aiding and abetting meant assisting and encouraging. [Back] Note 51 In A-G’s Reference (No 1 of 1975) [1975] QB 773 the Court of Appeal was of the view that each of the words ‘aid, abet, counsel or procure’ should be given its ordinary meaning, each representing a different mode of participation. This runs counter to the earlier view, namely that the words were technical terms. On this view, ‘aid and abet’ did not purport to describe the nature of D’s conduct but denoted that he or she was present at the commission of the principal offence. By contrast, ‘counsel or procure’ again did not describe the nature of D’s conduct but denoted that he or she was not present at the commission of the principal offence. See J C Smith, “Aid, Abet, Counsel, or Procure” in Reshaping the Criminal Law, Essays in Honour of Glanville Williams (ed P R Glazebrook) (1978) p 120. [Back] Note 52 “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 Law Quarterly Review 453, 453. [Back] Note 54 For our recommendation, see Part 4, para 4.37. [Back] Note 55 Smith v Baker [1971] RTR 350. [Back] Note 56 The facts of Clarkson [1971] 1 WLR 1402. [Back] Note 57 Coney (1882) 8 QBD 534; Allan [1965] 1 QB 130; Clarkson [1971] 1 WLR 1402. [Back] Note 58 Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 204 suggest that where there is a failure to take reasonable steps to discharge a legal duty, the failure in itself constitutes assistance and not merely evidence of encouragement. [Back] Note 59 In each example, the fact that the burglars and the customers may be unaware of D’s assistance is irrelevant. [Back] Note 60 (1987) 85 Cr App R 388. [Back] Note 61 Above, p 393 (emphasis added). [Back] Note 62 Commentary on Gibson and Gibson [1984] Criminal Law Review 615, 616. The case is fully reported at (1984) 80 Cr App R 24. [Back] Note 63 “Which of you did it?” (1989) 52 Modern Law Review 179. [Back] Note 64 [1907] 1 KB 40. [Back] Note 65 [2006] EWCA Crim 415, [2006] 2 Cr App R 6. [Back] Note 66 Tuck v Robson [1970] 1 WLR 741. [Back] Note 67 Rubie v Faulkner [1940] 1 KB 571. [Back] Note 68 J F Alford Transport Ltd [1997] 2 Cr App R 326. However, on the facts the conviction was quashed because of the trial judge’s misdirection to the jury. See also Gaunt [2003] EWCA Crim 3925, [2004] 2 Cr App R (s) 37 where D, a manager, failed to take steps to prevent his employees, P, racially harassing another employee, V. [Back] Note 69 For our answers and recommendations, see Part 3, paras 3.39 to 3.41. [Back] Note 70 In the nineteenth century, Stephen thought that ‘counselling’ incorporated a requirement of ‘but for’ causation –Digest (4th ed) Art 39. Dicta in Assistant Recorder of Kingston-upon-Hull ex parte Morgan [1969] 2 QB 58, 61 can be interpreted as support for Stephen’s view. However, in Calhaem [1985] QB 808 the Court of Appeal held that there did not have to be any causal connection between the counselling and the commission of the offence. See also Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App R 35. [Back] Note 71 Professor K J M Smith “The Law Commission Consultation Paper on Complicity: Part 1 – A Blueprint for Rationalism” [1994] Criminal Law Review 239, 244. [Back] Note 72 Calhaem [1985] 1 QB 808, 813. [Back] Note 73 [1984] 1 QB 795. [Back] Note 75 However, under the recommendations in the first report, D would be guilty of the inchoate offence of intentionally assisting or encouraging P to commit murder. [Back] Note 76 The example is provided by Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 200. [Back] Note 77 See also State v Tally (1894) 102 Ala 25 where D, who knew that P was planning to murder V, prevented T from warning V. This facilitated the killing of V by P who was unaware of what D had done. The fact that D’s conduct can clearly assist P without P being aware of it calls into question Lord Chief Justice Widgery’s assertion in A-G’s Reference (No 1 of 1975) [1975] QB 773, 779 that, “aiding and abetting almost inevitably involves a situation in which [D] and [P] are … in contact so that each knows what is passing through the mind of the other”. [Back] Note 78 Caelham [1985] 1 QB 808. [Back] Note 79 As in Giannetto (1997) 1 Cr App R 1 where the Court of Appeal noted, without disapproval, the trial judge’s direction that D could be convicted of murder if, on P saying that he was going to kill D’s wife, D had patted P on the back and said “Oh goody”. [Back] Note 80 The facts are those of Wilcox v Jeffery [1951] 1 All ER 464. [Back] Note 81 Schriek [1997] 2 NZLR 139; The Queen v Lam (Ruling No 20) [2005] VSC 294. [Back] Note 82 The Queen v Lam (Ruling No 20) [2005] VSC 294 [77]. [Back] Note 83 Schriek [1997] 2 NZLR 139, 150. [Back] Note 84 K J M Smith, “The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law Review 239, fn 26. [Back] Note 85 The example is taken from the Court of Appeal’s judgment in Calhaem [1985] QB 808, 813. [Back] Note 86 Above. In Calhaem the Court of Appeal upheld D’s conviction for ‘counselling’ P to murder V. At his trial, P had testified that, although hired by D to murder V, he originally had never intended to murder V. He said that he did so only when V screamed and he panicked. The court held that the murder of V had been done within the ‘scope of the authority or advice’ of D. [Back] Note 87 Due to the various problems with the presumption of actual encouragement, we recommend an alternative approach in Part 3, paras 3.47 to 3.58. [Back] Note 89 Above, 779 to 780. [Back] Note 90 It is true that in Blakely and Sutton v DPP [1991] RTR 405 the Divisional Court thought that D ‘procured’ a result if he or she contemplated it as a possible consequence of his act. However, the observation was not necessary to the decision. [Back] Note 91 Commentary on Smith [1988] Criminal Law Review 616, 618. [Back] Note 92 NCB v Gamble [1959] 1 QB 11, 23. Professor Glanville Williams famously described the judgment of Mr Justice Devlin as “a specimen of extraordinarily poor judicial thinking” - “Complicity, Purpose and the Draft Code – Part 1” [1990] Criminal Law Review 4, 15. [Back] Note 93 [1959] 1 QB 11, 20. [Back] Note 94 Howe [1987] AC 417. [Back] Note 95 I H Dennis, “The Mental Element for Accessories” in P F Smith (ed) Criminal Law, Essays in Honour of J C Smith (1987) 40. Professor Dennis’ article provoked an intense debate between himself and Professor Sullivan – see G R Sullivan, “Intent, Purpose and Complicity” [1988] Criminal Law Review 641, [1989]Criminal Law Review 166; I H Dennis, “Intention and Complicity: A Reply” [1988] Criminal Law Review 649, [1989] Criminal Law Review 168. See also Glanville Williams “Complicity, Purpose and the Draft Code – Part 1” [1990] Criminal Law Review 4. [Back] Note 96 Most of these cases involve a defendant’s voluntary presence at the scene of an offence. The issue is whether such presence, without more, can be construed as encouragement – Coney (1882) 8 QBD 534; Clarkson [1971] 1 WLR 1402. Recently, in Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App R 35 the Court of Appeal has held that there must be an intention to assist (or encourage). [Back] Note 97 The case was unusual in that it was evidence adduced by the prosecution that formed the basis of the defence submission that D’s intention was to hinder or obstruct. [Back] Note 98 Wilcox v Jeffery [1951] 1 All ER 464. D’s conviction for encouraging P’s offence by attending a concert at which P gave an unlawful performance was upheld but Lord Goddard indicated that it might well have been different if D had booed or otherwise voiced opposition to the performance. [Back] Note 99 The issue has generally received little scrutiny by the courts particularly in cases of joint criminal venture where the focus instead has been on D’s state of mind in relation to the commission of the principal offence. [Back] Note 100 JF Alford Transport Ltd [1997] 2 Cr App R 326, 334 to 335; Bryce [2004] EWCA Crim 1231, [2004] 2 CR App R 35. [Back] Note 101 Clarkson [1971] 1 WLR 1402. [Back] Note 102 DPP for Northern Ireland v Lynch [1975] AC 653, 698 by Lord Simon. This case was overruled in Howe [1987] AC 417. [Back] Note 103 This is because intention that P will commit the conduct element of the principal offence will become the central consideration. See Part 3, paras 3.77 to 3.83. [Back] Note 104 Rook [1993] 1 WLR 1005 is an example of an exception to the general rule - see paras B.119 and B.120 below. Rook is a case that, for the wrong reasons, has influenced the law of secondary liability in recent years. [Back] Note 105 NCB v Gamble [1959] 1 QB 11; DPP for Northern Ireland v Lynch [1975] AC 653 (overruled by Howe [1987] 2 WLR 568); Clarke (1985) 80 Cr App R 344; Rook [1993] 1 WLR 1005; JF Alford Transport Ltd [1997] 2 Cr App R 326; Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App R 35. One authority suggests that cases of ‘procuring’ are no different –Blakely and Sutton v DPP [1991] RTR 405 in which D’s intention was that P should not commit the principal offence. [Back] Note 106 [1950] 1 KB 544, 546 (emphasis added). See also Ackroyd’s Air Travel Ltd v DPP [1950] 1 All ER 933, 936; Ferguson v Weaving [1951] 1 KB 814. [Back] Note 107 However, these issues can also arise where D’s encouragement or assistance occurs simultaneously with P’s commission of the principal offence –Carter v Richardson [1974] RTR 314; Webster [2006] EWCA Crim 415, [2006] 2 Cr App R 6. [Back] Note 108 [1960] 1QB 129. [Back] Note 110 The example is taken from Smith and Hogan, Criminal Law (11th ed 2005) 188. [Back] Note 111 [1960] 1 QB 129, 132. [Back] Note 113 Contrary to the Theft Act 1968, s 12(1). [Back] Note 114 Contrary to the Theft Act 1968, s 1(1). [Back] Note 115 Previously Lomas (1913) 9 Cr App R 220 had been authority for the view that where D provided assistance in advance of the commission of the principal offence, he or she had to know the details of the planned offence. [Back] Note 116 For our discussion and recommendations on this topic in Part 3, see paras 3.153 to 3.166. [Back] Note 117 If D believes that P will commit arson against either property x or property y but is not sure which, D will be liable whichever of the two properties P in fact targets. If D believes that P will commit arson in respect of property x and also believes that there is a real possibility that P will also commit arson in respect of propertyy, D is guilty of each arson should P commit both –Reardon [1999] Criminal Law Review 392. [Back] Note 118 W Hawkins, A Treatise of the Pleas of the Crown, vol 2 (8th ed 1824) ch 29, s 21. See also M Hale, The History of the Pleas of the Crown, vol 1 (1800) p 616 to 617. [Back] Note 119 Leahy [1985] WL 310719 (Crown Court); Reardon [1999] Criminal Law Review 392. [Back] Note 120 Depending on P’s state of mind, P would be guilty of wounding with intent to cause grievous bodily harm contrary to the Offences against the Person Act 1861, s 18 or unlawful and malicious wounding contrary to the Offences against the Person Act 1861, s 20. [Back] Note 121 Saunders and Archer (1573) 2 Plowd 473.Transferred malice is a common law doctrine whereby, if D satisfies the external elements of an offence accompanied by the requisite fault element, D is guilty of the offence even though the occurrence of the external elements are unexpected (but in a way which is immaterial to the definition of the offence). However, the institutional writers based their opinion not on the doctrine of transferred malice but on the fact that the offence actually committed by P was “in the ordinary course of things the probable consequence” – Foster, Crown Law, p 370. [Back] Note 122 An unreported Crown Court case suggests that D is liable even where the variation in performance is deliberate –Dunning and Graham (December 1985). [Back] Note 123 Contrary to Criminal Damage Act 1971, s 1(1) & (3). [Back] Note 124 Callow v Tillstone (1900) 83 LT 411. [Back] Note 125 We refer to ‘knowledge’ because that was the concept employed by Lord Goddard in Johnson v Youden when he said that D had “to know the essential matters”. However, the concept of ‘knowledge’ is inapposite in relation to consequences. A person intends or foresees a risk of a consequence. [Back] Note 126 Thereby committing the offence of assault occasioning actual bodily harm, contrary to Offences against the Person Act 1861, s 47. [Back] Note 127 Paras 5.107 to 5.108. [Back] Note 128 Para B.93 above. [Back] Note 129 Paras B.124 to B.132 below. [Back] Note 130 In this section, we distinguish ‘non joint ventures’ from joint ventures. We do so because we believe that the rules for each are not identical. We are conscious that Graham Virgo, a respondent to our consultation paper A New Homicide Act for England and Wales? (2006) Consultation Paper No 177, was extremely critical of our view that, in cases where there is no joint venture, D must intend or believe that the principal offence will be committed. We stand by that view which we note is similar to that of Professor Andrew Simester, “The Mental Elementin Complicity” [2006] Law Quarterly Review 578. We acknowledge that there are cases that support Graham Virgo but, as we hope to show, these authorities are inconsistent and unsatisfactory. [Back] Note 131 For our discussion and recommendations on this topic in Part 3, see 3.70 to 3.122. [Back] Note 132 Contrary to Offences against the Person Act 1861. It is not a constructive liability offence. [Back] Note 133 It would be different if it had been D’s intention that V should suffer grievous bodily harm. D is liable for an intended consequence even if he or she believes that it is unlikely to materialise. [Back] Note 134 Thomas v Lindop [1950] 1 All ER 966; Ferguson v Weaving [1951] 1 All ER 412. [Back] Note 135 [1960] 1 QB 129. [Back] Note 136 Above, 134 by Lord Chief Justice Parker. [Back] Note 138 [1978] 1 WLR 1350. D and P were not parties to a joint criminal venture because they did not form or share a common intention to commit an offence. [Back] Note 139 Section 3(1)(a): doing an act with intent to cause by explosive substances an explosion of a nature likely to endanger life or cause serious injury to property; s 3(1)(b): possessing an explosive with similar intent. [Back] Note 140 Churchill [1967] 2 AC 224, 236 to 237; Maxwell [1978] 1 WLR 1350. [Back] Note 141 Carter v Richardson [1974] RTR 314; Blakely and Sutton v DPP [1991] RTR 405; Reardon [1999] Criminal Law Review 392; Webster [2006] EWCA Crim 415, [2006] 2 Cr App R 6. [Back] Note 142 Carter v Richardson [1974] RTR 314; Blakely and Sutton v DPP [1991] RTR 405; Webster [2006] EWCA Crim 415, [2006] 2 Cr App R 6. [Back] Note 143 [1974] RTR 314. [Back] Note 145 It has to be said that support for this restricted interpretation is not to be found in the judgment of Lord Chief Justice Widgery. [Back] Note 146 [1991] RTR 405. [Back] Note 147 In other words, the magistrates convicted on the basis that D ought to have realised that there was a risk that, as a result of what she had done, P might drive in excess of the prescribed limit. [Back] Note 148 Blakely and Sutton v DPP [1991] RTR 405, 414. [Back] Note 149 [1999] Criminal Law Review 392. [Back] Note 151 Chan Wing-siu [1985] AC 168; Powell and Daniels, English [1999] 1 AC 1. [Back] Note 152 [2004] EWCA Crim 1231, [2004] 2 Cr App R 35. Curiously, the Court of Appeal thought that the case was not a joint criminal venture. [Back] Note 154 [1993] 2 All ER 955. [Back] Note 155 [1960] 1 QB 129. [Back] Note 156 [2004] EWCA Crim 1231, [2004] 2 Cr App R 35 [49]. [Back] Note 157 [2006] EWCA Crim 415, [2006] 2 Cr App R 6. [Back] Note 158 For our discussion and recommendations on this topic in Part 3, see 3.123 to 3.169. [Back] Note 159 [1993] 2 All ER 955. [Back] Note 160 [1985] 1 AC 168. [Back] Note 161 [1992] 1 AC 34, 53 (emphasis in original) [Back] Note 162 If the agreed offence involves the use of violence which is intended to kill V, there is no difficulty. Should P kill V, P and D are each guilty of murder. This would be so even if the method that P employed to kill V was one that D had not foreseen and involved exceptional cruelty which sickens D. [Back] Note 163 [1999] 1 AC 1. [Back] Note 164 Regardless of whether D was liable for V’s death, D would be liable for the offence that he or she had agreed with P to commit (assuming that it had been committed). [Back] Note 165 Smith (Wesley) [1963] 1 WLR 1200; Betty (1963) 48 Cr App R 6; Reid (1976) 62 Cr App R 109; Stewart and Schofield [1995] 1 Cr App R 441. In all these cases, D knew that P was armed with a weapon. [Back] Note 166 Davis v DPP [1954] AC 378; Anderson and Morris [1966] 2 QB 110; Lovesey and Peterson [1970] 1 QB 352; Dunbar [1988] Criminal Law Review 693. [Back] Note 167 [1985] AC 168. [Back] Note 168 It was distinguished in Barr (1989) 88 Cr App R 362 and Smith [1988] Criminal Law Review 616 (not a case of homicide). These two authorities were declared by the House of Lords in Powell and Daniels [1999] 1 AC 1 to have been wrongly decided. It was applied in Ward (1986) 85 Cr App R 71; Slack [1989] QB 775; Wakely [1990] Criminal Law Review 119 and Hyde [1991] 1 QB 134. [Back] Note 169 [1999] 1 AC 1. [Back] Note 171 [1991] 1 QB 134. [Back] Note 172 It is not known whether the jury found that, in stabbing V, P intended to kill V or merely intended to cause serious bodily harm. [Back] Note 173 Powell and Daniels, English [1999] 1 AC 1, 28 (emphasis added). [Back] Note 174 2 December 2003, unreported. [Back] Note 175 [2005] EWCA Crim 1882. [Back] Note 176 [2007] EWCA Crim 342. [Back] Note 177 The fundamental difference rule will also apply to cases where the question is whether D is guilty ofmanslaughter, or of no homicide offence. An example would be where D foresaw that P might cause less than serious harm to V intending to cause less than serious harm to V and P killed V. There is no doubt that on such facts D can take advantage of the ‘fundamentally different act’ rule: Attorney General’s Reference (No 3 of 2004) [2005] EWCA Crim 1882. [Back] Note 178 [2005] EWCA Crim 1882. [Back] Note 179 [2000] 2 Cr App R 407. [Back] Note 181 [2007] EWCA Crim 342. [Back] Note 182 Support for the submission can be found in dicta in Anderson and Morris [1966] 2 QB 110, 120 and in Uddin [1999] QB 431, 441. However, a similar submission had previously been rejected in Roberts, Day and Day [2001] Criminal Law Review 984. [Back] Note 183 In which he had delivered the judgment of the Court of Appeal. [Back] Note 184 [1989] NI 268. [Back] Note 185 [1999] 1 AC 1, 29. [Back] Note 186 The current Judicial Studies Board direction refers without any elaboration of an act that is ‘fundamentally different’. [Back] Note 187 [2000] 2 Cr App R 407. [Back] Note 188 InVan Hoogstraten, Sir Stephen Mitchell doubted the correctness ofGilmore. This is because, employing Sir Stephen’s approach, the definition of the ‘relevant act’ is likely to have included the fact that the petrol bomb was very large and that it would be thrown with the intention to kill. If the relevant act was defined in such terms, the defendant in Gilmore is likely to have escaped liability for manslaughter as well as murder. This comparison not only demonstrates the central importance of the definition of the ‘relevant act’, but also how different interpretations would effect a defendant like the one inGilmore. [Back] Note 189 [2007] EWCA Crim 342. [Back] Note 190 On this view, the focus is on the physical act of P and not on P’s intention in doing the act (our footnote). [Back] Note 191 We have already pointed out that we believe this guidance is more generous to the accused than the guidance provided inPowell and Daniels, para B.139 above. [Back] Note 192 D may be convicted of other offences, for example causing grievous bodily harm with intent, assault occasioning actual bodily harm and conspiracy to cause such harm. [Back] Note 193 Anderson and Morris [1996] 2 QB 110, n 158. [Back] Note 194 Crooks [1999] NI 226; Uddin [1999] QB 431; A-G’s Reference (No 3 of 2004) [2005] EWCA Crim 1882. [Back]
