Bluesqueak wrote:If neither of us are lawyers, the next question is to ask which jurisdiction are we not lawyers in?
Because current UK law requires that
intent be proved as well as foresight. The case I quoted from, R. v Jogee, was the case that established that.
Your argument for the prosecution is that Zilwicki and Cachat might
reasonably have known that David would run off and nuke a park. Complete with kids.
The argument for the defence would be that Zilwicki and Cachat did not encourage him to do that, did not plan to do that, and in fact asked Carl to tell him not to blow the nuke at all. They are in the position of a group of people off to burgle a house, who tell David to leave the stolen gun in the car - only to have him take it with him and shoot the householder.
In UK law, the provable lack of 'intent' of the others would mean they were not accessories to the murder. Even under the old common purpose cases, they'd have probably got off, because the defence could argue that they couldn't
reasonably know David wouldn't do as he was told.
Now, my experience of criminal cases (no, I'm not a lawyer) is that it would be bloody difficult to convict Zilwicki and Cachat. Yes, you could argue that they knew he had a nuke, therefore might reasonably expect that he could use it. But as well as the question of whether they could
reasonably know David would decide to disobey the rest of the group, David had definitely broken from the 'common purpose' of the group.
People keep quoting the getaway driver - at this point Zilwicki and Cachat (and Carl and Karen and the others) aren't getaway drivers. They're the gang who've just robbed the bank, are driving away - and watch the unstable member NOT get in the getaway car, but instead take the gun he was supposed to use in the robbery and rush over to the local park to start shooting.
Being retired, I had time to spare for an internet search on UK law and found an interesting article on the changes made in "complicity in a joint criminal enterprise", that explained the reasons and results which I can share:
Common law traditionally distinguished between a "principal" perpetrator who is primarily responsible for a crime, and an "accessory" perpetrator who is less responsible (let's call this the 19th century interpretation), but modern approaches abandon this distinction, and "a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime" (let's call that the 20th century interpretation).
The article was called "Back to the Past: Supreme Court Reverses the Law on Accessory Liability"
It is well established in criminal law that those who embark on an agreed joint enterprise can be liable for the consequences arising from actions carried out pursuant to the joint enterprise by others, where the actions do not stray beyond the scope of the joint enterprise. The decision as to whether or not actions form part of a joint enterprise is one for the Jury.
Parties to a joint enterprise are known as principals or accessory parties (alternatively secondary parties). Principals are those parties who most immediately cause the actus reus of a crime. Accessory parties are those who, pursuant to section 8 of the Accessories and Abettors Act 1861, either aid, abet, counsel or procure the principal.
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Prior to the Supreme Court’s judgment in R v Jogee and Ruddock v The Queen [2016] UKSC 8 [2016] UKPC 7, the law in relation to accessory liability was problematic both in terms of controversy and the number of appeals to which it gave rise. This followed the Privy Council’s decision in Chan Wing-Siu v The Queen [1985] AC 168 and the House of Lords’ decision in R v Powell and R v English [1999] 1 AC 1. The principle was established that if two parties undertook a joint enterprise to commit a criminal offence during which the principal committed a further offence, the secondary party would be guilty as an accessory to that further offence if he foresaw the possibility of the principal acting as he did. This is known as parasitic accessory liability.
For a principal to be convicted of murder it has to be shown that there was a specific intention to kill or cause really serious injury. Nothing less will suffice. Yet it was not necessary to show an intention to assist on the part of the secondary party. As it stood prior to the judgment dated 18 February 2016 of the Supreme Court, a secondary party could be liable for murder on the basis of foresight of the possibility of the principal committing it. The perhaps surprising result was that a lower mental threshold would suffice for the purpose of convicting a secondary party than a principal. This amounts to a distinct blurring of the lines between foresight and intent, when foresight might be better viewed as evidence of intent.
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What has changed?
The common law, as interpreted by courts prior to 18 February 2016, attracted criticism amongst the legal community both in the United Kingdom and in other commonwealth countries. In Clayton v The Queen [2006] HCA 58 (at 108) Kirby J said in his dissenting judgment in the High Court of Australia:
“To hold an accused liable for murder merely on the foresight of a possibility is fundamentally unjust. It may not be truly a fictitious or “constructive liability”. But it countenances what is “undoubtedly a lesser form of mens rea”. It is a form that is an exception to the normal requirements of criminal liability. And it introduces a serious disharmony in the law, particularly as that law affects the liability of secondary offenders to conviction for murder upon this basis.”
Ten years later the Supreme Court was asked by the Appellants, Jogee and Ruddock, to consider whether foresight of harm is a sufficiently high threshold to convict someone of murder. On 18 February 2016 the court gave its unanimous judgment that foresight alone was not sufficient, thereby overturning the Chan Wing-Siu principle and returning the requisite mental element of a secondary party to the position pre-1985. Their lordships commented in R v Jogee and Ruddock v The Queen [2016] UKSC 8 [2016] UKPC 7 (at 87):
“The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent. The long-standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose.”
The Supreme Court has clarified that the Privy Council in Chan Wing-Siu erroneously elevated a rule of evidence into a rule of law. In overturning the principle, the following was highlighted:
i. The Supreme Court benefited from a much fuller analysis of the law than was previously considered by other courts. The judgment itself provides a thorough analysis of previous case law;
ii. There have been a large number of appeals and therefore it cannot be said that the law has previously been working well;
iii. Accessory liability is an important part of the common law and, where an error of widening the law has been made, the law should be corrected;
iv. It was noted that the Chan Wing-Siu principle seemed to allow a secondary party to be more easily convicted than the principal person committing the crime.
When approaching cases involving accessory liability, foresight can now act as evidence of intention but it cannot be conclusive of it. Therefore, where a group of people attack someone and one member delivers a fatal blow, each denying that they are the culprit, as the law now stands the prosecution can still adduce evidence that the group may have had foresight that serious injury or death may occur; but the prosecution will need to prove, so that a Jury are sure, that all members of the group actively assisted or encouraged another member to cause serious injury or death.
A person who intentionally encourages or assists the commission of a crime will still be as guilty of it as the person who commits it. Additionally a Jury may be entitled to infer intentional encouragement or assistance from a person’s behaviour, such as knowledge that a person is carrying a weapon. If a person participates in a crime in circumstances which a reasonable person would realise involves a risk of serious harm and death results, they would be liable for manslaughter.
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The Jogee and Ruddock judgment appears to be more in line with the intention of Parliament and their approach to inchoate offences in the Serious Crime Act 2007. Part 2 of this Act replaced the common law offence of incitement by creating new law at sections 44 to 46 which include three inchoate offences of intentionally encouraging or assisting an offence, encouraging or assisting an offence believing it will be committed and encouraging or assisting offences believing one or more will be committed. It is yet to be seen whether there will be any further legislative change, however these offences seemingly fit with the reasoning of the Supreme Court.
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The judgment of the Supreme Court in Jogee and Ruddock has been labelled by some as one of the most important and historic decisions within criminal law. It has corrected an illogical principle, in so far as it previously meant for a lower mental threshold for an accessory to murder than that required of a principal. This is a correction that is perhaps overdue, the problem having been long appreciated yet in place for over thirty years, and it is a welcome change in the interests of justice. In light of the recent decision, the legal community shall wait with baited breath to see if the CCRC refer any accessory liability cases for consideration.
Anita Noerr and Herc Ashworth
Colleton Chambers, February 2016
So in the getaway driver example: when one of the gang members in the bank kills a teller and is charged with murder, under the 20th century interpretation of complicity the driver could face the same charge.
You have correctly pointed out that the 20th century interpretation not longer holds in the UK. So the driver can no longer be charged with intentionally causing the death of the teller (murder), BUT can be charged for the actions resulting in the unintentional death of the teller (manslaughter). The effect of the ruling in the UK is that the 21st century interpretation of "complicity" is the same as the 19th century interpretation.
With regards to Zilwicki and Cachet, under UK law they would not be charged with murder (since they held no intent, as you pointed out), but could be charged with multiple counts of manslaughter (actions resulting in death without the intent to do so) by virtue of their membership in a joint criminal enterprise.
PS. The High Court in Australia has refused to modify the common law interpretation from what held in the 20th century. Most regions have adopted the UK interpretation by legislation, but in the two regions where common law applies the prior interpretation still holds.
since the law does vary in each jurisdiction.