Criminal Liability of Accessories - Case Study Example

The facts of the case for discussion give rise to criminal compli in respect of murder. Gabrielle, Carl and Drew can be said to involved together in a joint enterprise which in effect means that each of them are equally responsible for the death of Sam and the pedestrian although Ben was the intended victim. Therefore the essential elements necessary to establish liability will be interpreted as common to each Gabrielle, Carl and Drew since each had a role to play in the facilitating of the crime. Whether or not the unlawful homicide amounts to murder will depend on the facts of the case. Murder is not defined by statute and as such is a common law offence. In any event the classic definition of murder offered by Sir Edward Coke is a good starting point. He defined murder as ‘when a man of sound memory, and of the age of discretion, unlawfully killeth within any country of the realm any reasonable creature in rerum natura under the Kings peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound or hurt, etc. within a year and a day after the same.’1 Gabrielle, Carl and Drew will share a common intention under the laws regulating joint enterprise. However, it is necessary to point out that it does not matter that the intended victim was not Sam. It is a long established principle of criminal law that once both the actus reus and the mens rea exist in a course of conduct it is not necessary for a specific victim to be identified or the target of the conduct. Once there is malicious intent it can be transferred from an intended victim to an unintended victim. In R v Latimer [1886] 17 QBD 359 the defendant hit the intended victim with a belt. The belt somehow recoiled and struck a bystander who suffered grievous bodily harm. The defendant was subsequently tried and convicted of maliciously wounding the bystander. On appeal the defendant argued that he did not intend to injure the bystander. The appeal was denied on the ground that it was not required that the defendant’s mens rea be directed at his actual victim. The malice was transferred from the intended victim to the unintended victim since criminal intent gave way to the actual crime in the first place.2 In R v Mitchell [1983] 1 QB 741 it was held that it was not necessary to prove that the defendant foresaw the precise cause of death in order to substantiate a charge of manslaughter and the same principle would apply to death. The concept of transferred malice would be applied unless the mode of death was remote. In this case the defendant assaulted a 73 year old victim with the result that he fell into an 89 year old woman causing her death. Slaughton J, delivering the ruling for the Court of Appeal said that ‘We can see no reason of policy for holding that an act calculated to harm A cannot be manslaughter if it in fact kills B.’3 The only thing distinguishing this case from the case discussed is the fact that in Mitchell there was no specific intent to commit murder whereas in Gabrielle, Drew and Carl’s case there is a specific intent to commit murder. All that the prosecutor is required to establish is that Gabrielle, Carl and Drew were concerned together in a joint enterprise and intended to cause the type of harm actually caused. The facts of the case for discussion unambiguously indicate that the three intended to commit murder. The fact that Drew as the principle offender was reckless in handing the letter bomb to Sam can operate however to reduce the charge of murder to manslaughter. The purpose of the doctrine of joint enterprise was defined in Johns v the Queen (1980) 143 CLR 108 as a means of fixing ‘with complicity for the crime committed by the perpetrator those persons who encouraged, aided or assisted him, whether they be accessories or principals. Broadly speaking, the doctrine looks to the scope of the common purpose or design as the gravamen of complicity and criminal liability.’4 With this doctrine in mind, Drew becomes the perpetrator while Carl and Gabrielle are the accessories before the fact. The actual arrangements are not required to be expressed between the parties but they can be implied according to the circumstances. If one of the members of the joint criminal enterprise takes steps which are necessary to accomplish the continuing arrangements or understanding each party will be equally liable notwithstanding the part he or she played in the commission of the offence. 5 Professor Sir John Smith said ‘…in the case of the principal, intention must be proved. Recklessness whether death be caused is a sufficient mens rea for a principal offender in manslaughter, but not murder. The accessory to murder, however, must be proved to have been reckless, not merely whether death might be caused, but whether murder might be committed: he must have been aware, not merely that death or grievous bodily harm might be caused, but that it might be caused intentionally, by a person whom he was assisting or encouraging to commit a crime. Recklessness whether murder be committed is different from, and more serious than, recklessness whether death be caused by an accident.’6 However, the principle of transferred malice will not permit recklessness to operate since in this case the co-conspirators clearly intended to commit murder and had each taken steps to facilitate the crime. Sam and the pedestrian’s death resulted from the exploding letter bomb was no different from the type of conduct planned. And certainly their deaths were within Drew’s contemplation. In Reg. v. Hyde [1991] 1 Q.B. 134, Lord Lane said that ‘if B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture.’7 The fact that Gabrielle has a change of heart is of no moment to her defence since the original plan was already in motion by the time she had change of heart. She made an attempt to contact Carl by telephone without more. According to the ruling in R v Whitefield (1984) 79 Cr App R 36 any party wishing to withdraw from a joint criminal enterprise must ‘unequivocally’ communicate their intention to the principle of his or her withdrawal.8 In R v Becerra and Cooper (1975) 62 Cr App R 212 Lord Roskill summarized the requisite withdrawal as follows:-‘After a crime has been committed and before an abandonment of the common enterprise can be established there must be something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences. What must be done to break the chain of responsibility will depend upon the circumstances of each case. · Where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. "Timely communication" ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw.’9 In the case for discussion, Gabrielle’s attempt to telephone Carl does not constitute a withdrawal since she did not in anyway communicate her intention to withdraw. According to Becerra, Gabrielle would have had to actually communicate an unequivocal intention to withdraw. The fact that Drew involved an innocent third party does not in anyway exonerate Carl and Gabrielle. In Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110 Lord Parker said that ‘where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, that that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise..’10 Therefore, Drew handing the letter bomb to Sam would not be seen as outside of the joint enterprise since it was an act done in furtherance of that joint venture. Moreover in McAuliffe v. The Queen (1995) 69 A.L.J.R. 621 the High Court of Australia ruled that ‘the criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight and that is so whether the foresight is that of an individual party or is shared by all parties. That is in accordance with the general principle of the criminal law that a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it.’11 In R v Powell and another, R v English the House of Lords determined that if a secondary party contemplated the conduct that caused the death as a possibility the secondary party will not escape liability ‘unless the risk was so remote that the jury take the view that the secondary party genuinely dismissed it as altogether negligible.’12 In the case for discussion the facts reveal that Drew, Gabrielle and Carl agreed that the incident should look like a terrorist attack. Certainly the death of others would have been contemplated by each of them. Once the prosecutor proves that Drew, Carl and Gabrielle were acting in concert with a common design, and that Sam and the pedestrian’s resulted from the joint enterprise, the ordinary criminal elements necessary for establishing murder will apply. In R v Nedrick (1986) the defendant threw a petrol bomb into the letter box of a house in which a child died as result. The defendant claimed at his trial that he only intended to frighten the home’s owner.13 Lord Lane CJ emphasized that ‘where the charge is murder and the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendants actions, and that the defendant appreciated that such was the case.’14 In R v Woollin [ 1999] Lord Steyn said that ‘it may be appropriate to give a direction in accordance with Nedrick in any case in which the defendant may not have desired the result of his act’.15 The courts have been fairly consistent in upholding the Nedrick ‘virtual certainty’ directions. In R v Walker and Hayles (1990) Lord Lloyd stated that in circumstances where foresight of consequences was an issue and an expanded direction was necessary, the ‘virtual certainty’ test would be appropriate.16 In R v Scalley [1995] the Court of Appeal held that the trial judge should direct the jury that if they were satisfied on the evidence that the defendant’s foresight of either death or injury was a virtual certainly they could infer that he had the necessary intention.17 In R v Woollin [1998] however, the House of Lords took a stricter approach than the Court of Appeal in the Scalley. In this case the House of Lords held that the jury must first be satisfied that the defendant foresaw that death or injury was a virtual certainty before they could move on to the question of intention.18 In order for Gabrielle, Drew and Carl to be successfully prosecuted for murder in respect of the deaths of Sam and the pedestrian the prosecutor must prove that they each foresaw as a virtual certainty that by deploying a letter bomb it could cause death or serious injury. Therefore it was a virtual certainty that Drew and the others could have at the very least foreseen serious injury. Even if the prosecutor fails to establish the principle of transferred malice it can also be argued that Gabrielle, Carl and Drew’s conduct brought about the circumstances that caused Sam and the pedestrian’s death. In DPP v Daley and McGhie (1980) it was held that since a victim tripped and fell to her death trying to escape the defendants who were throwing stones at her, they were guilty of homicide. 19 It was held that the defendants’ conduct was such that they ought to have known that they put the victim to some degree of risk. This ruling provides another means by which the defendants cannot escape liability for the deaths of Sam and the pedestrian. Bibliography Attorney General’s Reference No. 3 of 1994. (HL) http://www.number7.demon.co.uk/hol/frames/01/44.htm Viewed February 27, 2007 Note that the one year and a day element has been removed by statute. DPP v Daley and McGhie (1980) AC 237 (HL) Johns v the Queen (1980) 143 CLR 108 (HL) McAuliffe v. The Queen (1995) 69 A.L.J.R. 621 (Australian High Court) Reg. v. Anderson; Reg. v. Morris [1966] 2 Q.B. 110 (HL) R v Becerra and Cooper (1975) 62 Cr App R 212 (CA) Reg. v. Hyde [1991] 1 Q.B. 134 (HL) R v Latimer [1886] 17 QBD 359 (CA) R v Mitchell [1983] 1 QB 741 (CA) R v Nedrick (1986) 83 Cr App 26 (CA) R v Powell and another, R v English [1997] UKHL http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd971030/powell01.htm Viewed February 27 2007 (HL) R v Scalley [1995] Crim LR 504 (CA) R v Walker and Hayles (1990) 90 Cr App R 226 (CA) R v Whitefield (1984) 79 Cr App R 36 (HL) R v Woollin [ 1999] AC 82 (HL) Smith, John. Criminal Liability of Accessories: Law and Law Reform" (1997) 113 L.Q.R. 464 Read More