Abstract
The Law Commission for England and Wales has published for consultation a proposal for an offence of first degree murder. A person found guilty of this offence whether as a principal or an accomplice will receive a mandatory sentence of life imprisonment. It is argued that the conditions for liability as an accomplice put forward by the Commission do not fulfil the Commission's aspiration for a "parity of culpability" between principals and accomplices. The discussion has general implications for the reform of complicity laws.
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Notes
For a notable exception to the focus on socially abstracted individuals in ethical and legal analysis see Kutz (2000). The theoretical and doctrinal literature on complicity is thin but for searching accounts on criminal complicity see Dressler (1985), Kadish (1985) and Simester (2006). For an excellent account of the history and doctrine of English and Welsh complicity law see Smith (1991).
A New Homicide Act for England and Wales?
Some crimes such as rape and burglary have been termed by Gardner (2006, pp. 134–137) following Kadish “non-proxyable” wrongs because commission requires immediate presence whereas terms such as cause in homicide and appropriation in theft can accommodate more remote inputs which could, in theory, encompass within the class of principal offenders persons who are not physical participants in the actus reus. Enlargement of the class of principal offenders for such crimes has been stymied by the salience in English causal doctrine of the notion, elaborated and defended by Hart and Honore (1984) that any “free, deliberate and informed” action of P cannot be caused by D.
There are some indications in recent case law of a move away from the dogma that for the purposes of the law there can be no causal inputs into free agency, most notably Lord Hoffman’s speech in Environment Agency v Empress Car Co (Abertillery) [1999] 1 AC 1. As for the actual decision in Empress, one may query whether the siting of an object of and by itself has any causal properties.
LCCP No 177 must be read in conjunction with Law Commission Report No 290 Partial Defences to Murder.
LCCP No 177, Part 5. For a critical analysis of these proposals see Sullivan (2006a)
The refusal to extend the defence of duress to murder entails that even the constrained agency of someone who kills another in response to an immediate threat of death is that of a principal offender whereas the prime mover, the person deploying the threat of death, is merely his accomplice: Howe [1987] AC147. It is recommended in LCCP No 177 that duress should reduce what would otherwise be first degree murder to second degree murder.
According to the Court of Appeal in Giannetto [1997] 1 Cr App R 1 D’s response of “Oh goody” to P’s declaration that he intends to kill V is sufficient to make him an accomplice to the murder of V by P.
LCCP No 177 at para 10.2.
We may note in passing that, subject to determining the scope of intent, a definition limited to causing death with intent to cause death seems suitably narrow for the premier grade of murder. Even so, suitably crafted complete and partial defences will be required to exclude defendants who do not deserve to be convicted of first degree murder.
We may note that with great consistency official and other bodies have recommended abolition of the mandatory sentence whereas with equal consistency recent Home secretaries have made public declarations of their support for the mandatory sentence. See further Blom-Cooper and Morris (2004, chap.). The terms of reference for LCCP No 177 assumed continuation of mandatory life sentences for murder.
LCCP No 177 at para 10.17.
Ibid at paras 5.53–5.55.
Some attention must be given to substance and form. Under the Commission’s proposals anyone convicted of first degree murder either as a principal or accomplice will receive a life sentence. However, the sentencing judge may well recommend different minimum terms to be served in prison in cases of two or more convictions in respect of one incident of first degree murder if he considers there are differences in culpability between the defendants: Criminal Justice Act 2003, s.269. However the term “life sentence” contains a literal truth in that a person subject to a life sentence has only a qualified liberty when released, a liberty qualified by the terms of a licence. Furthermore, the sentence of itself is acutely condemnatory. Therefore all persons subject to the life sentence regime must, in justice, be deserving of such treatment. To that extent one must seek a “parity of culpability” between members of the class of life prisoners.
See note 40 and associated text.
LCCP No 177, paras 2.7–2.48.
Ibid, paras 5.49–5.52.
Powell and Daniels; English [1991] 1AC 1.
Formulating the grounds for findings of liability for complicity in a manner which seeks to ensure that in each case there is at least a parity of culpability on the part of the accomplice with the principal offender is a formidable test. If successfully achieved there should be a template suitable for use in cases where the principal offence requires proof of some form of culpability.
For Honore outcome responsibility is the most basic form of accountability in civil and criminal law. It rests on the premise that we can properly be made accountable for events and states of affairs which are, at least in part, attributable to our voluntary agency: Honore (1999, pp. 7–40). Honore’s focus is on bad outcomes caused by the agent’s conduct. Yet outcome responsibility may arise in respect of any state of affairs external to the agent and attributable to his agency. That agency must create a material relationship with the outcome for which there is responsibility but this need not necessarily be a causal responsibility.
Outcome responsibility requires some form of external linkage between the agent and the outcome. It cannot be based merely on some mentality or attitude that the agent has towards the outcome in question. As will be discussed in the text, the linkage need not necessarily be causal.
No question of complicity in murder can arise until the death of V. This is the principal obstacle to Kutz’s claim that complicity should not require any causal or other form of material relationship between the conduct of the accomplice and the principal offence: Kutz, (2007), this issue, DOI 10.1007/s11572-006-9026-6. While it is true that the common law of England and Wales permits findings of complicity despite the lack of causality or any other form of material relationship between D’s conduct and P’s crime, this makes deeply obscure the notion that complicity is always a form of participation in P’s crime. Indeed Smith (1991) insists that doctrinal coherence requires a causal relationship between D’s conduct and P’s crime but in his masterly analysis of the case law (chap. 3) is forced to concede that on occasion causation is found to be present on a constructive or imputed basis. In a reformed law of complicity the doctrinal requirement of some form of causation or material relationship between D’s conduct and P’s crime can be reinstated. Tokens of encouragement or assistance without causal or material effect can be made subject to forms of inchoate liability but cannot, coherently, form the basis of a finding of complicity.
Robert Miller (Contractors) Ltd [1970] 2QB 54. D’s conduct in Scotland made D amenable to English criminal jurisdiction on the basis of P’s commission of the principal crime in England.
Higgins (1801) 2 East 5.
Because incitement is a common law offence for which no permissible range of sentences has been established by statute.
Accessories and Abettors Act 1861 s.8: Murder (Abolition of Death Penalty) Act 1965.
Largely because of the enormous influence of Hart and Honore (see note 3 above), until very recently English law consistently rejected any claim that conduct which was free, deliberate and informed could be caused wholly or in part by the intervention of another agent. Yet in our daily lives and historical narratives, judgements are regularly made that P would not have acted as he did but for some inducement, pressure or other intervention on the part of D. Such judgements cannot be founded on Humean consistencies as on some occasions P may yield to the inducements or threats of D and on other occasions he may not. Yet we may be convinced on the basis of our social practices and experience that particular interventions of D influenced the conduct of P, that, for example, P would not have killed V had not D promised to pay him for doing so. If we assumed that the free conduct of human agents was free from causal influence from other human agents our social interactions and conversations would be very different.
“It is a principle of law, that if several persons act together in pursuance of a common intent, every act done in furtherance of such intent by each of them is, in law, done by all. The act, however, must be in pursuance of the common intent.” Alderson B. in Macklin (1838) 2 Lew CC 225. See too Fletcher, Fletcher and Zimnowdski [1962] Crim L R 551.
The doctrine of joint enterprise has worked free from its origins as an outcrop of conspiracy and is now an adjunct of the law of complicity. Its mixed origins still leave their mark in the variant of joint enterprise known as collateral joint enterprise which reaches conduct covered neither by conspiracy nor complicity. See discussion at note 52 and associated text.
John Gardner (2006, pp. 138–139) would consider that there is a causal relationship between P’s killing of V at T1 and the supply of the gun by D used in the killing even if we can be sure that had D not provided the weapon P would have killed V at T1 with a gun provided by E. On his view D’s causal contribution stands notwithstanding that it “subtracts” from the world’s possibilities the causal contribution of E to the death of V. Two difficulties can merely be noted here. First it is not obvious that of itself and by itself the supply of a weapon has any causal properties. The second difficulty is perhaps the most intractable in the field of legal causation: what circumstantial details that attend V’s death (or whatever event at issue) are to be regarded as salient for the purposes of causal attribution? There is no theory of salience to hand to resolve this nor any prospect of such a theory: see further Ehring (1997) esp chap. 3. It may be allowed that if the weapon supplied is used by P to kill V, D the supplier is materially connected to the death of V and can justly be said to share a degree of outcome responsibility for the death with P.
Proving that any given token of encouragement boosted the morale of V would frequently be next to impossible.
Proving direct assistance will involve considerations of questions of degree similar to proximity in attempt. A bus ticket to the nearby town where the victim lives may be considered peripheral whereas a plane ticket to Australia a major contribution.
The Commission’s choice of “purpose” as the culpability requirement attached to D’s encouragement or assistance properly excludes from the class of accomplices persons who are aware that their conduct will encourage or assist P’s crime but whose objective is not to encourage or assist P’s crime, reversing decisions such as NCB v Gamble [1959] 1QB 11. The conduct in that case would be covered by an inchoate offence proposed by the Commission of assisting crime: Law Com No 300, Encouraging and Assisting Crime.
Dalloway (1847) 2 Cox CC 273. An impact that cannot be avoided by taking prior or contemporaneous precautions which fall short of desisting from the lawful activity (driving) will typically if not invariably instantiate something that the agent experiences rather than does.
Road Traffic Act 1988 s.3.
Post conflict societies may require as a condition of civic stability expressions of guilt and regret by members of the previously dominant caste which are expansive and regretful and not too preoccupied with individual responsibility and culpability for discrete events: Asmal (2000).
Allan [1965] 1QB 130; Clarkson [1972] 3 All ER 344. The case of Clarkson in particular (group of men watching woman being raped and not intervening) makes a strong case for a legal duty of rescue but the matter at issue here is whether there was a parity of culpability with the rapists themselves and whether the culpability was in respect of the wrong instantiated by rape.
Even if an intervention on his part could have saved V, that would not lead to any criminal liability imposed on D because of the absence in English law of a duty of rescue in the absence of any special duty.
Wilcox v Jeffery [1951] 1 All ER 464. In its survey of the current law, the Law Commission notes that the fact of encouragement is assumed or imputed rather than proved and even raises the issue of whether a legal presumption of encouragement to the principal arises on proof that D’s words or gestures of encouragement were received by P: LCCP No 177 paras 5.13–5.16. In its formulation of the test there is reference to “actual” encouragement (para 5.47) but something more explicit and constraining should be formulated if the new law is to require that D’s words or gestures of encouragement had any material effect on P. Proof of any measurable impact will often be very difficult to come by, increasing the prospect that under any new law drafted in those terms the fact of encouragement would be conclusively deduced from the communication of encouragement.
It is enough, for instance, if D were to say “Oh Goody” in response to P’s declaration that he intended to kill V: see note 8.
The Law Commission has recently proposed the creation of inchoate offences of assisting and encouraging crime: Law Com. No 300. For commentary see Sullivan (2006b).
See note 26 above.
As put by Simester “Culpability is not a state of nature – it must have an object.” Op. cit note 1 at 579. Where there is no material connection between D’s conduct and V’s death the object of D’s culpability cannot be that death.
See note 31 and associated text.
As in DPP for NI v Lynch [1975] AC 653; DPP for NI v Maxwell [1978] NI 42.
[2004] EWCA Crim 1231.
See note 31 and associated text.
The Law Commission has proposed an inchoate offence of assisting crime: see note above.
It will be possible to convict them of the offence on the basis that they must either be principals or accomplices: Gianetto [1997] 1Cr App R 1.
Because of difficulties of proof of that kind a special regime has been created to mitigate the difficulties of proving cases of murder and manslaughter in domestic settings when the victim is a child or vulnerable adult: The Domestic Violence, Crime and Victims Act 2004.
Powell and Daniels [1999] AC1.
Chan Wang-sui v R [1985] AC 168 affords a good example of how the collateral joint enterprise doctrine can incriminate persons who seem to have done little more than remain on the spot while persons they were acquainted with fought with another group.
For Simester D’s foresight that holding this meeting carried the risk of murder justifies the exposure of D to a charge of murder: See Simester (2006).
In part 2 of Law Com No 300 the claim is made that where crime B can be regarded as a foreseeable incident arising from the commission of crime A, the latter crime may be regarded as a causal factor in the commission of the former crime. But suppose that D agrees to go to the pub with P informing P that he is anxious not to get involved in any fighting yet aware that P might start a fight when at the pub. If P should start a fight at the pub without any encouragement or assistance from D, we would not say the presence of D was one of the causes of the fight even if we may be sure that P would not have gone to the pub had not D agreed to go with him. Of course, burglaries, illegal rallies and the like are criminal offences while going to the pub is lawful, a material difference. Whether this makes for a causal difference is questionable.
LCCP NO 177 at para 5.37.
In Mercer [2001] EWCA Crim 638 it was held that there was no breach of Art 6(3) of the Convention where the Crown alleged that D was a party to a joint enterprise without specifying his precise role but in Goktepe v Belgium (no 50372/99) the European Court found a breach of Art 6(1) on the basis that it was unfair to attribute to all members of a joint enterprise an aggravating feature proved against one member of the enterprise.
Gardner (2006, pp. 135–137) lays great store by the distinction between wrongs that may only be perpetrated directly and immediately (killing) and wrongs that may be committed at a distance and mediated through others (causing death). The dimensions of this distinction are beyond the scope of this paper. Suffice to say here that non-proxyable wrongs and other forms of wrong are not incommensurable when evaluating degrees of culpability in respect of a particular harm such as V’s death.
One might add that technically one could abolish complicity altogether by enlarging the class of principal offenders to accommodate all persons who stand in a causal relationship with the principal wrong and penalising non-causal relationships with the wrong through inchoate offences of assisting and encouraging crime. The only substantive differences between this proposal and the position outlined in the text is that agreements and acts of assistance and encouragement which are strictly non causal yet none the less generate a degree of outcome responsibility for the principal wrong would be remaindered to forms of inchoate liability. Against that could be placed significant gains of economy and simplicity. Enlarging the class of principal offenders in this manner may raise the objection that the only way that a non perpetrator can be liable for a non-proxyable wrong is by some complicitous act. It is true that enlarging the class of principals beyond perpetrators would lead to the direct imposition of liability for crimes such as rape on persons who have not had penetrative sex and who may even lack the capacity to perform penetrative sex. Yet as cases such as DPP v K [1990] 1 All ER 331 demonstrate the primary wrongdoer in an instance of rape may be a non-perpetrator. At one time the Law Commission favoured the abolition of complicity: Law Com no 131, Assisting and Encouraging Crime.
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Sullivan, R. First degree murder and complicity—conditions for parity of culpability between principal and accomplice. Criminal Law, Philosophy 1, 271–288 (2007). https://doi.org/10.1007/s11572-006-9022-x
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DOI: https://doi.org/10.1007/s11572-006-9022-x