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URL: http://www.bailii.org/ew/other/EWLC/2007/305(2).html
Cite as: [2007] EWLC 305(2)
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PART 2
A SUMMARY OF THE CURRENT LAW
INTRODUCTION
2.1 In this Part we provide a summary of the present law. We would normally set out the current law in the consultation paper that precedes a final report. However, in this instance, the CP pre-dates this report by a substantial period of time during which a number of important developments have occurred.[1] It is for this reason that we are providing a summary of the current law in this report. However, it is only a summary of what is a very complex and difficult area of the criminal law. We recognise that some readers would prefer a more expansive account of the current law. This is to be found at Appendix B.
SECONDARY LIABILITY
A common law doctrine
2.2 The primary statutory source of the modern law of complicity is section 8 of the Accessories and Abettors Act 1861. 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'.[2] However, the fundamental 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 a distinct offence. Rather, a person who, with the requisite state of mind, aids, abets, counsels or procures another person to commit an offence is him or herself guilty of that offence (provided that the offence is subsequently committed). Accordingly, D is liable to the same stigma and penalties as P.
A doctrine of general application
2.3 In Powell and Daniels, English,[3] 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.[4]
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.
The forensic advantages of secondary liability
2.5 Section 8 preserves another fundamental feature of the common law. In Swindall and Osborne,[5] 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.
2.6 Accordingly, a participant in an offence can be convicted of it even if the prosecution is unable to prove his or her precise role. It suffices that participation itself, whether as a principal offender or as a secondary party, can be proven.[6] This is of considerable benefit to the prosecution in cases of joint criminal ventures where it can be difficult to pinpoint the precise nature of D's role in the commission of the principal offence.
The parameters of the doctrine of secondary liability
The derivative theory of secondary liability
2.7 According to the derivative theory of secondary liability, D's liability for 'aiding, abetting, counselling or procuring' P to commit an offence derives from and is dependent upon the liability of P. It should follow that, 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.[7] However, a description of D's liability as being necessarily dependent upon the commission of a principal offence requires refinement if it is accurately to reflect the way the law has developed.
Exceptions to the derivative theory
2.8 There are a number of circumstances in which P, despite satisfying the external elements of a principal offence, does not commit the offence:[8]
(1) P is a person who cannot incur criminal responsibility either because he or she is aged under 10 years[9] or is legally insane; or
(2) P is a person who is capable of incurring criminal responsibility but lacks the requisite fault element to be convicted of the principal offence.
(3) P, although able to incur criminal responsibility and satisfying the fault element of the offence, has a complete defence, for example duress.[10]
Example 2A
D gives P, aged 9, a loaded gun knowing that P wants to use it to cause serious harm to V. P shoots at V causing serious harm.
Example 2B
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.[11] P fetches the item.
Example 2C
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.
In each example, P has not committed an offence. Accordingly, in each example, a strict application of the derivative theory would prevent D being convicted of the principal offence. It is true that in examples 2B and 2C, D would not escape all criminal liability. It would be possible to convict D of the common law offences of incitement to commit burglary and incitement to commit theft respectively. However, that is not the same as convicting D of burglary or theft.[12]
2.10 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.[13]
THE DOCTRINE OF INNOCENT AGENCY
2.11 The underlying idea is simple. The doctrine serves "to convert, in effect, an apparent 'accessory' into a [perpetrator]".[14] If D uses an innocent agent to commit an offence, D is considered to have committed the offence as a principal offender:
Example 2D
D asks P to deliver a package to V. Unknown to P, the package contains a bomb. P delivers the package and, as D had hoped, the bomb explodes. V is killed.
D is guilty of murder as a principal offender.
Example 2E
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.[15]
P has not committed the offence of bigamy[16] because he reasonably believed that his estranged wife was dead.[17] 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.[18]
2.13 Secondly, in the view of some commentators,[19] certain offences appear to require that their conduct element be personally performed:
Example 2F
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 since he believed on reasonable grounds that V was consenting to intercourse.[20] In Cogan and Leak,[21] 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. Yet, on one view, to hold D guilty of rape as a principal offender is a "violent wrench of the English language"[22] because it was P, not D, who had sexual intercourse with V.[23]
'PROCURING' THE COMMISSION OF THE CONDUCT ELEMENT OF THE PRINCIPAL OFFENCE
2.14 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.[24] 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,[25] D is secondarily liable for causing P to commit a no-fault offence:
Example 2G
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[26] but as a secondary party and not as a principal offender.
2.15 As Professor Ashworth has observed, cases like example 2G:
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.[27]
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.[28]
2.16 However, the courts have gone further 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, because P lacks the fault to be convicted or has a defence, there is no principal offender.[29]
2.17 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.[30]
However, whatever the practical benefits, the outcome represents a significant dilution of the derivative theory 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 offence than that committed by P
Example 2H
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.[31]
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. This approach was accepted by the Court of Appeal in Richards.[32]
2.19 This approach can, however, lead to the result that, in example 2H, D is guilty of manslaughter and not murder despite intending that P should kill V and playing a key causal role in bringing about V's death. Accordingly, in Howe,[33] the House of Lords disapproved Richards thereby making it possible to convict D of murder in example 2H.[34]
THE CONDUCT ELEMENT OF SECONDARY LIABILITY
Assistance and encouragement
2.20 Section 8 of the Accessories and Abettors Act 1861 provides that a person who 'aid[s], abet[s], counsel[s] or procure[s]' the commission of an offence shall be liable to be tried, indicted and punished as a principal offender.[35]
2.22 It is doubtful if all cases of 'procuring' can be described properly as involving the provision of assistance or encouragement. For example, D adds alcohol to P's non-alcoholic drink without P's knowledge. As a result, P commits the no-fault offence of driving with excess alcohol.[36] To describe D's conduct as assisting or encouraging P to commit the offence disregards the fact that it was D, not P, who was responsible for the circumstance element of the offence (having excess alcohol in his blood).
Voluntary presence at the scene of an offence
2.24 It is different where D voluntarily goes to a place knowing or believing that an offence is taking or will take place. The authorities suggest that D's conduct is capable of constituting encouragement.[37] However, in addition, D must intend that his or her presence should encourage P and P must in fact be encouraged by D's presence.[38]
Omissions
FAILURE TO DISCHARGE A LEGAL DUTY
2.26 If D is under a legal duty to act, failure to discharge the duty is capable of constituting assistance or encouragement.[39] 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 contracts of employment.[40]
FAILURE TO EXERCISE AN ENTITLEMENT TO CONTROL THE ACTIONS OF P
2.27 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[41] 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.
2.28 The entitlement to control exception is significant because it represents a potentially extensive departure from the general rule that D cannot be convicted by virtue of an omission to act. It has been applied to the licensee of a public house who allowed customers to drink alcohol outside the permitted hours,[42] to the supervisor of a learner driver[43] and to a company for omitting to take steps to prevent its drivers from falsifying their tachograph records.[44]
2.29 However, the ambit of the exception is unclear and it is questionable whether it represents a general principle. If D holds a party at his house and knows that one guest is about to rape another guest, is D liable if he, although able to intervene, decides not to? Alternatively, in the middle of the night, D is awoken by screams in his 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.[45]
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
2.31 Apart from cases where D is alleged to have 'procured' P to commit an offence, 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.[46] 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.[47]
Example 2J
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.
2.33 The authorities speak of there having to be "a connection"[48] between D's conduct and P committing the principal offence. In A-G v Able,[49] Mr Justice Woolf said that that there has to be a "sufficient" connection.[50] 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 2J. 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.[51]
2.34 P does not have to know that he or she is being assisted by D:
Example 2K
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.[52]
D is guilty of robbery because he has contributed to the robbery by virtue of the fact that it was his gun which P used to commit the robbery.[53]
PARTICULAR PROBLEMS IN CASES WHERE D'S CONDUCT IS ENCOURAGEMENT
2.35 In example 2K, D provided assistance. Cases where D encourages but does not assist P are more difficult. As with assistance, D can be liable as a secondary party even if D's encouragement makes no material difference to the outcome, for example if P has already irrevocably made up his or her mind to commit the principal offence.[54] However, in contrast to assistance, encouragement must have the capacity to act on P's mind and, therefore, P should have to be aware of D's encouragement.[55] Thus, D cannot be convicted of an offence as a secondary party if he or she shouts encouragement to P who is deaf and therefore unaware of D's encouragement.
Example 2L
D is at a football match attended by a large crowd. There is an altercation between two players, P and V, who are thirty yards away from D. D shouts out to P 'knock his block off'. At that moment, P punches V in the face.
Given the distance between D and P together with the noise generated by the crowd, there is a reasonable possibility that P was unaware of D's encouragement. In such a case, the prosecution would have to prove that P was aware of the encouragement.
Presumed encouragement
Example 2M
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.[56]
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.
… 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.[57]
Rebutting the presumption
Example 2N
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'.[58]
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.
2.41 The presumption can be rebutted even if there is a meeting of minds between P and D:
Example 2P
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.[59]
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."[60] It was pure coincidence that the victim turned out to be V.
Procuring
2.42 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)[61] 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….[62]
Thus, the prosecution must prove that P would not have committed the offence but for D's conduct.[63]
THE FAULT ELEMENT OF SECONDARY LIABILITY
Introduction
D's state of mind in relation to his or her own act of assistance or encouragement
Intending the act of assistance or encouragement
Intention to assist or encourage
2.45 There are dicta which support the view that, in addition to intentionally doing the act of assistance or encouragement, to be convicted of the same offence as P, D must intend to assist or encourage P in the sense of acting in order to do so.[64] However, the preferred view is that the prosecution only have to prove that D acted in order to assist or encourage P if either there is an evidential basis supporting a claim by D that he or she acted in order to hinder or obstruct rather than assist P, or, arguably, in cases where D is alleged to have encouraged P by virtue of nothing more than his or her presence at the commission of the offence.
Belief as to whether one's conduct will in fact assist or encourage
2.46 Although D must believe that his or her conduct has the capacity to assist or encourage P to commit the principal offence, it is unclear whether D must also believe that it will in fact assist or encourage P to commit the offence. For example, D, knowing that P intends to burgle 10 Acacia Avenue, leaves a ladder outside the premises to facilitate P's entry. In doing so, D believes that P is far more likely to use other means to secure entry. In the event, P does use the ladder to gain entry.[65]
D's state of mind in relation to the commission of the principal offence
D's attitude towards the commission of the principal offence
2.47 D can be convicted of the principal offence even though he or she does not intend that P should commit it. Accordingly if a shopkeeper (D) sells P a baseball bat which P uses to assault V, the mere fact that D did not intend to assist or encourage P, nor intend that the offence should be committed, does not in itself exonerate D. D's liability turns on his knowledge or belief as to whether P will or might assault V.[66]
Knowing the essential matters of the principal offence
2.48 In a leading authority,[67] it was said that D must 'know the essential matters which constitute the principal offence'.[68] There are two central issues: what are 'essential matters' and what is meant by 'know'?
WHAT ARE THE ESSENTIAL MATTERS?
2.49 The following proposition serves as a starting point: the essential matters of an offence include all the external elements of the offence. A criminal offence can consist of one or more of three external elements: conduct, the circumstances in which the conduct takes place and the consequences of the conduct.[69]
The conduct element
2.53 Sometimes, however, D may specify a particular person or item of property. Thus, D may pay P £1000 to burn down a particular building or to murder a particular person. There is a line of authority which suggests that in such cases the particular building or person is no mere detail but is an essential matter. On this view, if D deliberately commits the offence against a different building or person, D is not liable for P's offence because he or she did not 'know' that building or person.[70] By contrast, D is liable for P's offence if P accidentally or by mistake commits the offence against a different item of property or a different person. An example would be where D hands P a broken glass and encourages P to strike V1. P aims at V1 but accidentally strikes V2.
2.54 The scope of the deliberate variation in performance rule is unclear. If D encourages P to steal V's Rolls Royce, is D guilty of theft if, instead, D steals V's Bentley? If D, a racist, encourages P to set fire to the local Afro-Caribbean community centre, is D guilty of arson if P, finding blanket security at the centre, instead sets fire to a local public house which is frequented by people from the centre. In each case, D, despite the variation in performance, is unlikely to be discontented with the outcome.[71]
2.55 In addition, there is a more fundamental problem. In a leading authority,[72] it was said that D must know that "a crime of the type in question was intended".[73] This has opened up the prospect of D being convicted of an offence the conduct element of which is different from that of the offence which D believed P was intending to commit. For example, D provides a stolen credit card to P believing that P will use it to obtain property by deception. Instead, P uses it to commit burglary by slipping the latch on V's door, entering V's property and stealing V's video recorder.
The circumstance element
2.58 The circumstance element is always an essential matter of which D must 'know'. For example, 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 has committed arson.[74] However, D is not guilty of arson because, believing that P would set fire to his own property, D did not 'know' that the circumstance element of arson – that the property belongs to another person - would be satisfied.
2.59 The circumstance element is an essential matter even if the principal offence is a no-fault offence, that is one that P can commit without being at fault in relation to its circumstance element.[75]
The consequence element
2.61 However, this exception in relation to constructive liability offences appeared to be called into question by the decision of the House of Lords in Powell and Daniels, English.[76] The certified questions before the House of Lords referred to D realising that P might kill V. Lord Steyn referred to 'a secondary party who foresees that the primary party might kill with the intent sufficient of murder….'[77] Lord Hutton said that it was sufficient to found a conviction for murder for D to have realised that P "might kill with intent to do so or with intent to cause grievous bodily harm".[78] It is arguable, therefore, that the House of Lords is of the view that D had to foresee not only that P might attack V intending to kill or cause serious harm but also that P might in fact kill V.
2.62 The suggestion that D had to have contemplated that V might die ran counter to earlier authorities.[79] The issue was resolved by the Court of Appeal in Neary[80] where it was held that it suffices if D foresees that P might attack V intending to kill or to cause serious harm, even if D did not realise that V might die.
'The fault element of the principle offence'
WHAT IS MEANT BY 'KNOWING' THE ESSENTIAL MATTERS?
No joint criminal venture[81]
(1) P is committing or will commit the conduct element; and
(2) P is doing or will do so in the circumstances and with the consequences (unless the offence is a constructive liability offence) proof of which is required for conviction of the offence.
(1) belief that P might commit the conduct element;[82]
(2) foresight of the risk of a strong possibility that P will commit it;[83]
(3) contemplation of the risk of a real possibility that P will commit it;[84] and
(4) foresight that it is likely that P will commit it.[85]
Joint criminal ventures[86]
2.67 An example of the exceptional case is Rook[87] where D was involved in a plan to murder V. However, at his trial, D claimed that it had never been his intention that V should be killed. D claimed that he thought that if, having been paid, he absented himself on the day of the murder, P would desist from murdering V. In the event, P did murder V. The trial judge directed the jury that D was guilty of murder if he intended to assist P to commit a murder "which he knew would probably be committed." D was convicted of murder.
2.68 In upholding D's conviction, the Court of Appeal said that the judge's direction had been too generous to D. D was guilty of murder if he foresaw that P might attack V intending to kill or cause serious harm to V. In doing so, the Court of Appeal applied to agreed offences the rule that had already been established by the case of Chan Wing-siu[88] in relation to collateral offences. In Chan Wing-siu the agreed offence was robbery. In the course of the robbery, P committed a collateral offence of murder by fatally stabbing V. The trial judge directed the jury that they could convict D of murder if D foresaw that P might stab V intending to cause serious harm. The Privy Council upheld D's conviction for murder.
2.69 Accordingly, the general principle is that D is guilty of any offence committed in the course of a joint criminal venture if he or she foresaw that P might commit the conduct element of the offence in the circumstances (if any) and with the fault required to be convicted of the offence. If the principal offence is not a constructive liability offence, D must also foresee that in committing the conduct element D might also bring about the consequence element (if any) of the offence.[89]
Particular problems with the law of homicide
INTRODUCTION
THE LAW BEFORE 1997
Example 2Q
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 begs P not to use any violence against V. As D feared, V does disturb them and P murders her.
The issue is whether, despite not intending that V should be killed or suffer serious harm, D should be convicted of murder because he or she foresaw that P might attack V intending to kill or cause serious harm to V? Relevant features of example 2Q are:
(1) D and P agreed to commit an offence which did not involve the use or threatened use of serious violence against V; and
(2) D did foresee that P might attack V intending to kill or to cause serious harm to V.
2.73 As noted above, the courts have held that D is guilty of murder on the grounds that, having chosen to participate in a joint criminal venture, D ought to be convicted of murder if he or she foresaw that P might attack V with the fault element of murder.[90] It matters not that D was opposed to the commission of the offence.
2.74 The following example illustrates the second way that the question arose:
Example 2R
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 relevant features of this example are:
(1) D and P had agreed to commit an offence which did not involve the use or threatened use of serious violence against V; and
(2) unlike the previous example, D did not foresee that P might do an act intending to kill or cause serious bodily harm to V.
2.75 D will not be guilty of murder in this example because he does not intend or foresee that death or serious harm may be inflicted by P. The issue is whether D should be convicted of manslaughter or excused liability for V's death.[91] Before 1997 the Court of Appeal was unable to take a consistent line on the issue. In some cases it upheld D's conviction for manslaughter[92] while in others it quashed D's conviction.[93]
POWELL AND DANIELS, ENGLISH[94]
2.76 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 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.[95]
2.78 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[96] 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.[97]
… 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.[98]
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 joint criminal 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?
2.81 In Van Hoogstraten,[99] Sir Stephen Mitchell said that '…foresight defines the scope of the joint enterprise'. 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.
2.83 Sir Stephen's approach has much to commend it, not least because it simplifies the task of the jury. The jury is not required to consider whether the act that caused V's death was 'fundamentally different' from that foreseen by D, but only whether it was foreseen by D as a possibility. Nevertheless, in Attorney-General's Reference (No 3 of 2004)[100], which followed Van Hoogstraten, the Court of Appeal, whilst upholding Sir Stephen's ruling, approached the case in a manner which better reflected Lord Hutton's speech in English.
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. D intentionally kills V. In principle, both D and P have committed murder.
2.86 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[101] 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.[102]
2.88 The first is the relevance of P's state of mind, in perpetrating the lethal act, to the question of whether that act was 'fundamentally different' to what D anticipated might happen. In Attorney General's Reference (No 3 of 2004)[103] 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. However, in Gilmore[104] 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….'[105]
2.89 The second is the relevance of the fact that P used a weapon to perpetrate the lethal act different from the one that D anticipated that P might use. 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'. However, there has been very little in the way of guidance for juries.[106]
2.90 The case of Gilmore[107] 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, well 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 as to 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.
The most recent guidance
2.92 The most recent decision is that of the Court of Appeal in Rahman.[108] 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).[109]
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."
2.93 The provision of this guidance is welcome.[110] However, the guidance brings into focus two weaknesses within the current law.
NO LIABILITY FOR NOT ONLY MURDER BUT ALSO MANSLAUGHTER
2.97 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.[111] 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[112] 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.[113] However, subsequent cases have confirmed that D is not guilty of either murder or manslaughter.
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Note 1 Eg, the decisions of the Court of Appeal in Rook [1993] 2 All ER 955; Reardon [1999] Criminal Law Review 392; Bryce [2004] EWCA Crim 1231; [2004] 2 Cr App R 35; Webster [2006] EWCA Crim 415, [2006] 2 Cr App R 6;Rahman [2007] EWCA Crim 342 and the decision of the House of Lords in Powell and Daniels, English [1999] 1 AC 1. [Back] Note 2 The corresponding provision for summary offences is Magistrates’ Courts Act 1980, s 44. [Back] Note 5 (1846) 2 C & K 230, 175 ER 95. [Back] Note 6 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 held 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 7 Dias [2001] EWCA Crim 2986; [2002] 2 Cr App R 5. 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. [Back] Note 8 By external elements, we mean those elements of an offence that come within the term ‘actus reus’, namely conduct, circumstance and consequence. [Back] Note 9 The minimum age of criminal responsibility - Children and Young Persons Act 1933, s 50. [Back] Note 10 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. In our report Murder, Manslaughter and Infanticide (2006) Law Com No 304 we recommended that there should be two separate offences, namely first degree murder and second degree murder. We also recommended that duress should be capable of being of a complete defence to both offences (and attempted murder). [Back] Note 11 The external elements of the offence of burglary are satisfied. D has entered V’s property as a trespasser and taken an item of property without V’s consent – Theft Act 1968, s 9(1)(b). However, P has not satisfied the fault element of the offence because P believed that P had consented to the property being taken. [Back] Note 12 In example 2A, 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 13 Cogan and Leak [1976] QB 217. [Back] Note 14 K J M Smith, A Modern Treatise on the Law of Criminal Complicity (1991) p 94. [Back] Note 15 An example provided by Professor K J M Smith, A Modern Treatise on the Law of Criminal Complicity (1991) p 106. [Back] Note 16 Offences against the Person Act 1861, s 57. [Back] Note 17 Tolson (1889) LR 23 QBD 168. [Back] Note 18 However, in Cogan and Leak [1976] QB 217 the Court of Appeal applied the doctrine when upholding the conviction of D for raping his wife notwithstanding that as the law then stood a husband could not as a matter of law rape a wife with whom he was cohabiting. [Back] Note 19 Eg, Glanville Williams, Textbook of Criminal Law (2nd ed 1983) p 371. [Back] Note 20 Sexual Offences Act 2003, s 1(1)(c). [Back] Note 22 Glanville Williams, Textbook of Criminal Law (2nd ed 1983) p 371. [Back] Note 23 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. [Back] Note 24 A-G’s Reference (No 1 of 1975) [1975] QB 773. [Back] Note 25 A no-fault offence is one that P can commit without being at fault in relation to the circumstances element of the offence. [Back] Note 26 Road Traffic Act 1988, s 5(1). It is a no-fault offence because P can commit the offence even though he does not know or believe that he or she is driving with excess alcohol. [Back] Note 27 A J Ashworth, Principles of Criminal Law (4th ed 2003) p 423. [Back] Note 28 After all, only P has driven the motor vehicle. As will become apparent, however, we believe that in such circumstances D ought to be convicted as a principal offender, albeit not of the principal offence that P commits but rather of the new offence that we are recommending, namely causing P to commit a no-fault offence – see Part 4 paras 4.28 to 4.37 below. [Back] Note 29 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 30 Principles of Criminal Law, (4th ed 2003) p 435. [Back] Note 31 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 34 The converse situation is where P commits a more serious offence than the offence that D intended or believed that P would commit. It does not offend the derivative theory of liability to hold D liable for the lesser offence. [Back] Note 35 Section 8 applies to indictable offences. The corresponding provision for summary offences is the Magistrates’ Courts Act 1980, s 44. [Back] Note 36 A-G’s Reference (No 1 of 1975) [1975] QB 773. [Back] Note 37 Coney (1882) 8 QBD 534; Allan [1965] 1 QB 130; Clarkson [1971] 1 WLR 1402. [Back] Note 39 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 40 In each example, the fact that the burglars and the customers may be unaware of D’s assistance is irrelevant. [Back] Note 42 Tuck v Robson [1970] 1 WLR 741. [Back] Note 43 Rubie v Faulkner [1940] 1 KB 571. [Back] Note 44 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 45 For our answers and recommendations, see Part 3, paras 3.39 to 3.41. [Back] Note 46 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 47 Professor K J M Smith A Modern Treatise on the Law of Criminal Complicity (1991), p 19. [Back] Note 48 Calhaem [1985] 1 QB 808, 813. [Back] Note 49 [1984] 1 QB 795. [Back] Note 51 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 52 The example is provided by Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 200. [Back] Note 53 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. [Back] Note 54 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 55 Caelham [1985] 1 QB 808. [Back] Note 56 The facts are those of Wilcox v Jeffery [1951] 1 All ER 464. [Back] Note 57 R v Schriek [1997] 2 NZLR 139, 150. [Back] Note 58 K J M Smith, “The Law Commission Consultation Paper on Complicity: (1) A Blueprint for Rationalism” [1994] Criminal Law Review 239, 244. (footnote) [Back] Note 59 The example is taken from the Court of Appeal’s judgment in Calhaem [1985] QB 808, 813. [Back] Note 60 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 62 Above, 779 to 780. [Back] Note 63 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 64 Clarkson [1971] 1 WLR 1402; National Coal Board v Gamble [1959] 1 QB 11, 20; Maxwell v DPP for Northern Island [1978] 1 WLR 13570; Bryce [2004] EWCA 1231, [2004] 2 CR App R 35 [71]. [Back] Note 65 Our recommendations will resolve this confusion. See Part 3, para 3.75 to 3.83. [Back] Note 66 See, for example, Johnson v Youden [1950] 1 KB 544. [Back] Note 67 Johnson v Youden [1950] 1 KB 544. [Back] Note 69 See Part 1, para 1.6. [Back] Note 70 Leahy [1985] WL 310719 (Crown Court); Reardon [1999] Criminal Law Review 392. [Back] Note 71 For our discussion and recommendations on this topic in Part 3, see paras 3.153 to 3.166. [Back] Note 72 Bainbridge [1960] 1 QB 129. [Back] Note 74 Criminal Damage Act 1971, s 1(3). [Back] Note 75 Callow v Tillstone (1900) 83 LT 411. [Back] Note 79 Chan Wing-siu [1985] 1 AC 168; Hyde [1991] 1 QB 134. [Back] Note 80 [2002] EWCA Crim 1736 referred to with approval by the Court of Appeal in Rahman [2007] EWCA Crim 342. [Back] Note 81 For our discussion and recommendations on this topic in Part 3, see paras 3.70 to 3.122. [Back] Note 82 Blakely and Sutton v DPP [1991] RTR 405. [Back] Note 83 Reardon [1999] Criminal Law Review 392. [Back] Note 84 Bryce [2004] EWCA Crim 1231, [2004] 2 Cr App R 35. [Back] Note 85 Webster [2006] EWCA Crim 415, [2006] 2 Cr App R 6. [Back] Note 86 For our discussion and recommendations on this topic in Part 3, see paras 3.123 to 3.169. [Back] Note 87 [1993] 2 All ER 955. [Back] Note 88 [1985] 1 AC 168. [Back] Note 89 The principle is not confined to cases of homicide. For example, in Chan Wing-Siu had D foreseen that, in the course of the robbery, P might rape V and had P done so, D would have been guilty of rape. [Back] Note 90 Chan Wing-siu [1985] 1 AC 168; Rook [1993] 2 All ER 955; Powell and Daniels, English [1999] 1 AC 1. [Back] Note 91 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 92 Betty (1963) 48 Cr App R 6; Reid (1975) 62 Cr App R 109; Stewart and Schofield [1995] 3 All ER 159. [Back] Note 93 Lovesey and Petersen (1969) 53 Cr App R 461; Dunbar [1988] Criminal Law Review 693. [Back] Note 96 [1991] 1 QB 134. [Back] Note 97 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 98 Powell and Daniels, English [1999] 1 AC 1, 28 (emphasis added). [Back] Note 99 2 December 2003, unreported. [Back] Note 100 [2005] EWCA Crim 1882. [Back] Note 101 [2007] EWCA Crim 342. [Back] Note 102 The ‘fundamental difference’ rule will also apply to cases where the question is whether D is guilty of manslaughter 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 ‘fundamental difference’ rule: Attorney General’s Reference (No 3 of 2004) [2005] EWCA Crim 1882. [Back] Note 103 [2005] EWCA Crim 1882. [Back] Note 104 [2000] 2 Cr App R 407. [Back] Note 106 The current Judicial Studies Board direction refers, without any elaboration, to an act that is ‘fundamentally different’. [Back] Note 107 [2000] 2 Cr App R 407. [Back] Note 108 [2007] EWCA Crim 342. [Back] Note 109 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 110 We have already pointed out that we believe this guidance is more generous to the accused than the guidance provided inPowell and Daniels, para 2.86 above. [Back] Note 111 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 112 Anderson and Morris [1996] 2 QB 110, n 158. [Back] Note 113 Crooks [1999] NI 226; Uddin [1999] QB 431; A-G’s Reference (No 3 of 2004) [2005] EWCA Crim 1882. [Back]
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