Participation in Crime

Domestic and Comparative Perspectives

Alan Reed, Michael Bohlander

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780367601522
• eBook ISBN: 9781317084006
• Edition: 1
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

Following on from the earlier edited collection, Loss of Control and Diminished Responbility, this book is the first volume in the Substantive Issues in Criminal Law series. It serves as a leading point of reference in the area relating to participation in crime and identifies the need for a consistent approach to the doctrinal and theoretical underpinnings of complicity liability. With a section on the UK analysing points of current interest, the book also has a large comparative section dealing with foreign jurisdictions and examines on the basis of a unified research grid how different legal systems treat core issues of participation in the context of criminal law. This book is a valuable reference resource for those in the criminal justice community in the UK and abroad and for academics, the judiciary and policy-makers.

Chapter 1 Participating in Homicide

Barry Mitchell

DOI: 10.4324/9781315599441-2

Introduction

This chapter is ultimately concerned with the possible liability of people who do not actually perpetrate the fatal assault in a homicide, but they have done something that in some way ‘links’ them with the victim’s death, albeit indirectly. Unfortunately, determining the precise nature of their liability is potentially complicated by the fact that English law currently recognises three distinct but related forms of criminal liability that might be appropriate. In some instances, the prosecution may even have a choice as to which charges to pursue.

Résumé of Secondary (or Accessorial) Liability for Homicide

Under section 8 of the Accessories and Abettors Act 1861 D may be liable as a secondary party (or accessory) to a homicide by aiding, abetting, counselling or procuring the homicide. If D gives help or support he may aid it. If he encourages P (the principal) to commit a homicide, perhaps by inciting or instigating it, he may abet homicide. Counselling homicide also involves encouraging it, though whereas abetting traditionally implies encouragement whilst the homicide is being committed, counselling is more likely for encouragement before the homicide. In all three cases, D need not cause P to commit homicide.¹ P should be aware of D’s encouragement but there need be no consensus between them.² D procures a homicide if he causes its commission, though again there is no need for any consensus between D and P.³ Hiring a ‘hit-man’ to kill someone might be thought to come close to procuring, but it is more likely to be treated as a form of counselling.⁴

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1 For example, Luffman [2008] EWCA Crim 1752.

2 Calhaem [1985] QB 808.

3 Luffman (n 1).

4 Richards [1974] QB 776; Calhaem (n 2).

D will not be a secondary party to homicide simply by being present at the scene and, unless he is under a legal duty to act, doing nothing to prevent it. But he may be liable if he assists or encourages its commission.⁵ If D is present at the scene in pursuance of a prior agreement he has made with P that a homicide be committed, that would suffice. If there is no such prior agreement and no positive act by him, D may only be liable if he is present at the scene with the intention of giving assistance or encouragement.⁶ Some act of assistance or encouragement must also be established.⁷ If D voluntarily commits a positive act of assistance or encouragement, knowing of the circumstances that constitute the homicide, he is still a party to it even if he acted without the desire or aim that the homicide be committed.⁸

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5 Coney (1882) 8 QBD 534.

6 Clarkson [1971] 1 WLR 1402.

7 Allan [1965] 1 QB 130.

8 NCB v Gamble [1959] 1 QB 11.

This can lead to some rather surprising results. Suppose, for example, two groups of young men meet. There is a verbal exchange between them and two men, A and B (one from each group) start fighting. A punches B knocking him to the ground. C, a member of A’s group, stands by and makes no attempt to get physically involved but he shouts encouragement to A – ‘Go on, let him have it’. As B lies on the ground A kicks him several times in the head, and B dies. If the prosecution can show that A intended to cause B at least serious injury, he may be convicted of murder. But so too might C, as A’s accessory.

The Accomplice's State of Mind

The rules regarding the required state of mind of accessories are complicated, partly at least because they relate not only to the accessory’s awareness of what he is doing and the implications of that but also to the principal’s conduct and intentions. There are two basic strands to the accomplice’s state of mind that are crucial to his criminal liability. First, he must intend to carry out the acts of assistance or encouragement, and some authors have interpreted this as meaning that he must intend to carry out the acts in the belief that they will or may encourage or assist in the principal offence.⁹ Second, he must be aware of the ‘essential matters’ that constitute the principal offence.¹⁰ However, it is unclear just how much of the detail must be known to him. These rules requiring intention and awareness¹¹ apply even though the principal offence (such as involuntary manslaughter) may only call for recklessness on the part of the principal offender.

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9 Ibid.

10 Johnson v Youden [1950] 1 KB 544.

11 It is almost certainly true that liability will arise in cases where D was ‘wilfully blind’ – that is, he deliberately shut his eyes to the obvious. On the other hand, mere negligence through failing to make reasonable enquiries will not suffice; see J.F. Alford Transport Ltd [1997] 2 Cr App R 332.

It is worth acknowledging that where D assists or encourages P before the offence is committed, he invariably has no control over P’s actions and is really having to predict what will or is likely to happen, so that it is probably more appropriate to talk about his awareness of the risk of what is likely to happen. Thus, in Webster,¹² the defendant had been driving a vehicle and then allowed his co-accused to drive, knowing that he (the co-accused) had been drinking. The co-accused drove erratically and at excessive speed resulting in a passenger being thrown from the vehicle and subsequently dying. The co-accused was convicted of causing death by dangerous driving and the defendant of aiding and abetting that crime. The Court of Appeal held that the defendant merely had to believe that it was likely that his co-accused would drive dangerously.

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12 [2006] EWCA Crim 415.

The fact that the law permits secondary liability to arise where D merely realises that his acts may assist or encourage the principal offence can lead to seemingly harsh outcomes. For example, a shopkeeper (D) who sells a kitchen knife to P may overhear P saying to another person that he intends to use it to kill V. If D completes the sale of the knife to P – sales are down and the shopkeeper is in danger of going bankrupt – and P subsequently uses the knife to kill V, D may be convicted as an accessory to murder.¹³

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13 A very similar scenario as considered by Devlin J in NCB v Gamble (n 8).

The Accomplice's Awareness of and Thoughts about the Crime

Since by definition an accessory is more remote from the actual commission of the crime than the principal, he need not be aware of all the details of it. Put simply, the accomplice need only be aware of the ‘type of offence’ that the principal commits; he need not know the precise details of the offence that the principal commits.¹⁴ This principle was then developed in DPP for Northern Ireland v Maxwell ¹⁵ where the House of Lords held that D could be liable as an accessory to P’s crime if it was one of a range or list of offences that D had foreseen (even though he was not sure exactly which offence would be committed). It is also important to point out that the essential matters of which D must be aware include P’s state of mind, or mens rea. D must foresee that P will commit the conduct element of the offence and have the necessary mens rea. So D will only be liable for a murder committed by P if D believes that P will or might fatally assault V intending to kill or to cause serious harm: if D thinks P will or might kill through being merely negligent that is not enough.

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14 Bainbridge [1960] 1 QB 129.

15 [1978] 1 WLR 1350.

However, the decision in Maxwell left the law in an uncertain state. As the Law Commission explained, there were apparently conflicting authorities that, where there is no agreement between the parties to commit a crime (which is considered in ‘Withdrawal’, below), D should believe either that P would commit the crime or that he might commit it.¹⁶ Where the courts have indicated that D need only foresee that the crime might be committed, they have expressed the law’s requirement using language that is not necessarily consistent – for example:

1. he believes the principal might commit the conduct element;
2. he foresees the risk of a strong possibility that the principal might commit it;
3. he contemplates the risk of a real possibility that the principal will commit it; ...

Table of contents

• Cover Page
• Half Title Page
• Series Page
• Title Page
• Copyright Page
• Contents
• Notes on Contributors
• Preface
• Introduction
• 1 Participating in Homicide
• 2 Accessories and Principals after Gnango
• 3 Locating Complicity Choice, Character, Participation, Dangerousness and the Liberal Subjectivist
• 4 ‘The Straw Woman’ at Law's Precipice An Unwilling Party
• 5 Victims as Defendants When Victims Participate in Crimes against Themselves
• 6 Repentance and Forgiveness Withdrawal from Participation Liability and the Proportionality Test
• 7 Participating in Crime Some Thoughts on the Retribution/Prevention Dichotomy in Preparation for Crime and How to Deal with It
• 8 Towards a Rational Reconstruction of the Law on Secondary Participation and Inchoate Offences Conspiracy
• 9 Towards a Rational Reconstruction of the Law on Secondary Participation and Inchoate Offences Attempt
• 10 Inchoate Liability and the Part 2 Offences under the Serious Crime Act 2007
• 11 Participation on the Internet
• 12 Territorial and Extraterritorial Dimensions
• 13 Participation in Crime under Scots Law The Doctrine of Art and Part
• 14 Bishops in the Dock Child Abuse and the Irish Law of Complicity
• 15 France
• 16 Australia
• 17 Canada
• 18 Germany
• 19 Islamic Law
• 20 The Netherlands
• 21 New Zealand
• 22 Spain
• 23 South Africa
• 24 Sweden
• 25 Turkey
• 26 United States
• Index