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7 - Complicity

7 - Complicity

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Published by manavmelwani

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Published by: manavmelwani on May 03, 2011
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02/08/2013

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ComplicityIntroduction.
Persons who are guilty of criminal offences will be either principals or secondaryoffenders. The principal offender (P) is the person most immediately responsible forthe occurrence of the
actus reus
of the crime. For instance if P should kill V byshooting V with an intention to kill or cause serious bodily harm, then P will commitmurder as a principal offender. Suppose P killed V with a gun supplied by D and wasdriven to the place where V was killed by E. It might well turn out that D and E tooare guilty of murder should there be proof that they assisted or encouraged withrequisite mens rea the killing of V by P. They will be fully liable for the crime P hasperpetrated as secondary offenders, aka, accomplices.
Complicity: a derivative form of liability.
 The classic phrase covering complicit liability is that the accomplice, with therelevant
mens rea
, must
aid, abet, council, or procure the principal’s offence.
(statutory incarnation in the 1861 Act) Though the phrase is to be found in a statute, the meaning of that phrase is to befound in judicial decisions. Complicity in substance is a common law doctrine.Most complicity involves either acts of assistance or encouragement. Things doneby D the accomplice which encourages or assists P in commission of the criminaloffence. (Only a thin slither are covered by the notion of procurement. For practicalpurposes, assistance or encouragement occupies the field)Complicity is a derivative form of liability. So D must assist or encourage, at time T.And there may be a considerable gap between time T, and time T1 when P commitsthe act. As the accomplice’s guilt is derived from the offence of th e principal offender, it is in non-existent as such till P commits the offence. So D will not beliable till the criminal offence is carried out at T1.P’s guilt is specific to the time and place of commission (T1). And the same appliesfor D. Wherever his act of assistance takes place, the crime itself D participated inrelates to the time and place of P’s offence.
This can have important consequencesfor asserting jurisdiction.
Robert Millar (contractors) [1970] 2QB 54
D is the manager of a fleet of lorries in Scotland. P the driver is anxious to make thetrip into England to deliver a consignment. D is unsure about allowing this becausehe is aware that there are mechanical problems with this specific lorry that couldmake it dangerous to drive if the problems kick in. But in the end, with full
 
knowledge of the facts, he relents. In Yorkshire, the worst happens. There is a fatalaccident which is attributable to the condition of the vehicle and P is guilty of theoffence of causing death by dangerous driving. That offence of course occurs in Yorkshire.D seeks to defend himself on the basis that everything he did took place inScotland. The argument fails because the crime in question is ‘an English crime’ andD’s liability derives from that offence.As they’re both guilty of the same offence, English law allows a conviction on thebasis that D must have either been a principal offender. Or if he was not, he musthave been an accomplice.Occasionally, you may know a crime was committed and you know D and P have tobe responsible for the killing. You know one of them had to have done it but you’renot sure which one. English law allows a conviction on the alternative basis that onthis evidence, D either assisted or encourage this crime or he actually carried outthis crime.Then the person can be convicted. 
Gianetto [1997] 1 Cr App R
D makes contact with P to kill V, D’s wife, for money. V is shot. There is evidencethat P himself might have faltered at the final hurdle and backed down. Evidence isunclear but if he didn’t do it, then it can only have been D that pulled the trigger. There is no other hypothesis and on that basis, Dis convicted for murder.It underscore s the point that the accomplice is fully liable. 
Remember, complicity isderivative. Derived from what though?
 The default position must be that P must carry out the offence for which D is anaccomplice.If P hasn’t committed the offence, then there’s no foundation for which D’s guilt forthat offence can be derived. That’s the logical position.So if you counsel murder, but for some reason P commits manslaughter. It shouldfollow that though it’s no credit to D, D too must be guilty of manslaughter becausehis guilt is derived from the offence of P. It is certainly the logic of the position
however, in interpretation, the courts have relaxed the requirements that P must carry out the full offence.
Start with the minimum core condition for a finding of complicity. Minimumcondition must always be the
actus reus
of the offence perpetrated by P. 
W
HERE
P
DOES
 
NOT
 
BRING
 
ABOUT
 
THE
 
ACTUS
 
REUS
 
OF
 
ANY 
 
OFFENCE
:-
 
A well-known example of an obvious point is
Thornton v Mitchell [1940] 1 All ER 339
 The charge is against P who is the driver of a double decker bus. D is the conductorof this bus. Because of the way the vehicle is constructed, there is a large blind spotwhen the bus is being reversed. And so, while reversing, P was dependent on thedirections given by D the conductor.Because of the carelessness of the conductor, unfortunately a pedestrian, V, is runover by the bus. On the basis of this, both P and D are charged with the offence of careless driving.P is the driver of the bus. Careless driving clearly requires an act of driving. Theoffence in a question is clearly a conduct offence. The
actus reus
requires carelessdriving; that which falls below the standard of an ordinary prudent driver. There is no
actus reus
in this case however. The driving of the vehicle is perfectlyacceptable on the part of P. He couldn’t see for himself and it was perfectlyreasonable for him to rely on the instructions of D. That’s a bonus for D becausewithout any careless driving, there is no offence for D to be an accomplice to.So
thornton
stands for the proposition that at least an
actus reus
is required. Should we sometimes be content with just the
actus reus
though? Can we dilute theorthodoxy and say if we’ve got the
actus reus
of an offence ( say a d eath, which isclearly unlawful,) and say that provided we have an
actus reus
, we can deal witheach individual with regards to this death based on his own
mens rea
.
W
HERE
P
COMMITS
 
A
 
LESSER
 
OFFENCE
 
THAN
 
THE
 
OFFENCE
D
SOUGHT
 
TO
 
ASSIST
,
ENCOURAGE
 
OR
 
PROCURE
:-
If D had the mens rea for murder, he can be convicted of murder (of complicity formurder as it were) and if P had diminished responsibility for some reason, he can beconvicted of manslaughter.
Richards [1974] QB 776
. (Clinging to the pure doctrine is a bit unfair as to justicemeted out)D wants her husband beaten up. She prevails upon 2 men to carry out her wishes.She essentially says ‘I want him beaten up sufficiently to put him in hospital for along time’.So she has the
mens rea
for causing GBH with intent to cause GBH. P1 and P2 getthere, and seriously hurt V. So you’ve got your GBH.

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