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Criminal liability: Burglary and murder

Regarding the criminal liability of Al, Bert and Charles, there are several issues to consider here.

Al and Bert plan to burgle Lord Snooty’s home. It can be said that they are conspiring together to commit the crime, an offence itself under s.1(1) of the Criminal Law Act 1977. Statutory conspiracy can be supported by the case of Edwards (1991)[1] which states that only the mens rea (state of mind) between the parties needs to be apparent to be found guilty of a s.1(1) offence.

As outlined in Macklin (1838)[2], Alderson B stated that “…the principle in law states that if several persons act together in pursuance of common intent…” (To steal the painting)…every further act of intention shall render them jointly liable…” This is known as joint enterprise.[3] They enlist the help of Charles to act as their getaway driver.

We must consider the participation of all three men to commit the offence of burglary.

Section 9(1)(a) of the Theft Act, 1968 outlines the requirements for a defendant to be found guilty: The defendant must enter any or part of a building as a trespasser[4] with intent to steal or inflicts on any person grievous bodily harm, or commits unlawful damage to the building or anything in it. This is concerned with Al and Bert’s ulterior intentions when they entered the building, in that they planned to steal a famous painting.

Obviously Al and Bert can be considered liable for the offence of burglary under s.9(1)(a) as they meet all the necessary requirements under this Act. The consideration of participation is then on Charles. Can he be considered as a party to the offence of burglary for acting as the getaway driver?

Al and Bert engaged the help of Charles, who is aware that Bert and Al plan to steal. He knows nothing of Al and Bert’s agreement for Al to carry a cosh, the implications of which shall be discussed later. Is Charles liable as a secondary party to the act of burglary? s.8 of the Accessories and Abettors Act 1861 considers an accessory to either be an “aider, abettor, counsellor or procurer” in the commission of an offence. Charles was aware of Al and Bert’s state of mind (the mens rea) to carry out the burglary, and he drove them to Lord Snooty’s home in order for them to carry out their wrongful act (actus reus), so evidently Charles is a guilty party to Al and Bert’s crime for burglary for helping them[5], since if he did not drive them, they could not have carried out their intentions. The prosecution do not have to prove that Charles’s help caused Al and Bert to commit the offence.[6]

However, when Al and Bert entered Lord Snooty’s home, they discovered the painting (that they planned to steal) was missing. Does this change the presumption that they are guilty of burglary?

The case of Haughton v Smith (1975)[7] stated impossibility was a defence to attempt. A heavily criticised case, the Criminal Attempts Act 1981 changed this ridiculous presumption. s.1(1) 1 states: “..If with intent to commit an offence…a person does an act which is more than merely preparatory to the commission of that offence…he is guilty of attempt…”[8]

s.1(2) goes on to state: “A person may be guilty of attempting to commit an offence ...even though the facts are that the commission of it...are impossible..”[9] The case of Shivpuri[10] substantiated this fact and overruled the earlier decision of Anderton v Ryan.[11] In Shivpuri, the House of Lords interpreted the meaning of s.1(1) more accurately than they did in Anderton, therefore, under this ruling, Al and Bert are liable for burglary.

As discussed earlier, Bert and Al are also liable for conspiracy under s.1(1)(b) of the Criminal Law Act 1977, since it clearly states that impossibility to commit the burglary does not prevent a conviction under this Act.[12]

Furthermore, in their agreement to carry out the burglary, Al and Bert agreed that Al should carry a cosh. It was suggested that Al only use the cosh to cause slight injury and only if necessary to facilitate their escape. Charles is unaware of Al carrying the cosh but has knowledge that AL is capable of inflicting violence.

Whilst in the house, Bert smashes some plates. Lord Snooty investigates the source of the noise, and upon confrontation, Al deliberately hits Snooty a violent blow which crushes his skull and kills him instantly.

The first thing to consider is had it not been for Bert smashing the plates, would the killing of Lord Snooty have taken place? Can this be described as a novus actus interveniens (new intervening act) on behalf of Bert? In Latif (1996)[13], it was held that the casual link must be broken by a new act, and that “it must be free, deliberate and informed”.

In Armstrong (1989)[14], the defendant was held not liable where the victim’s actions were done of his own violation. However, it is highly likely that Lord Snooty would be reasonably anticipated to seek out the crashing noise of the plates, therefore, as outlined in Roberts (1972)[15], there is no new intervening act, and the defendant is liable for the crime.

Al originally intended to only cause slight harm with the cosh. This was agreed with Bert. As such, they would both be liable under s.9(1)(a) of the Theft Act 1968 for burglary as he had the weapon on him at the time of entry and they intended Al to use it if necessary, a requirement made out under this section. This was substantiated in the case of Klass (1998).[16] The presence of the cosh Al has with him at the time of entering Lord Snooty’s house suggests guilt of the more serious offence of aggravated burglary as detailed under s.10 of the 1968 Theft Act, which states under s.1, “...if at the time of committing the burglary…he has a weapon of offence ...he shall be guilty…”

However, Lord Snooty has been killed. It does not clearly state whether Al used the cosh he had with him. The question now lies on was it an act of premeditated murder?

Murder is a crime at common law. It is defined as the unlawful killing of a human being under the Queen’s Peace with malice aforethought.[17] Under s.1 of the Homicide Act 1957 and supported by the decision in Maloney (1985)[18] and Hancock (1986)[19], the mens rea for murder is an intention to kill or cause grievous bodily harm. It has been held in DPP v Smith (1961)[20] that grievous means “really serious”. In Smith, the case hinged on the reasonable person foreseeing that death or serious bodily harm would result from the defendant’s act, even if the defendant did not foresee this. Considered to be bad law, the case was overruled by the passing of the Criminal Justice Act 1967, s.8 defining what the defendant actually foresaw and intended, not what he should have.

Al’s original intention upon entering the house was to only use the cosh to facilitate escape, and cause very slight injury. No mention was made of killing Lord Snooty. Oblique intent is where a defendant does not wish a particular result, but had the foresight that it could happen. In Hyam v DPP (1975)[21], the court held that the defendant must have had the foresight that death could result. However, Moloney overturned this, stating that nothing less than clear intention to kill would constitute malice aforethought.

In Woollin (1996)[22], the case hinged on whether the defendant knew the result of death would be of a virtual certainty as derived from Nedrick (1986)[23] for oblique intention.

Al dealt Lord Snooty a violent blow which killed him instantly. Under the direction of Woollin and s.1(1) of the Homicide Act 1957, Al is guilty of murder.

The question now remains on the participation of Bert and Charles in relation to Al committing murder.

The case of Chan Wong-Siu (1985)[24] considered the liability of secondary parties in joint enterprise and murder. Sir Robin Cooke stated that “…the secondary party having joined the venture…must have seen it as a real possibility that the principal offender (Al) might intentionally kill… then this could be seen as authorisation by the secondary party for the killing…”[25]

Criticised for its judgement, the following case of Hyde (1991)[26] laid out the criteria for the mens rea of murder committed by secondary parties. Lord Lane CJ concluded that:

“…if the secondary party realises without agreement...that the principal may kill or inflict serious injury, but nonetheless continues to participate with the principal in the venture, this will amount to sufficient mental element for the secondary party to be guilty of murder…”[27]

Powell (1997)[28] substantiated this further in stating that the mens rea for murder by a secondary party is a subjective test based on what the defendant contemplated on what could happen. Under this premise, Charles would be found guilty of murder as a secondary participant since he had some knowledge that Al had caused serious injuries in the past, yet omitted to do nothing on this occasion to prevent Lord Snooty’s death.

The issue now lies with Bert. In Anderson and Morris (1966)[29], the secondary party was not liable for murder where there were fundamental differences in the act intended and then carried out by the principal which was not foreseen or intended by the secondary party (Bert).

As supported by English (1997), Bert would not be liable for murder; since he did not foresee or contemplate the act would happen.

1


Footnotes

[1] Edwards [1991] Crim LR 45

[2] (1838) 2 Law CC 225, per Alderson B

[3] p. 147, Reed, A and Seago P., (2002) Criminal Law, London, Sweet and Maxwell

[4] Trespass means to be on an occupier’s property without their express or implied consent

[5] Attorney-General’s Reference (No.1 of 1975) [1975] QB 773

[6] p.233, Elliott, C. and Quinn, F.,(2004) Criminal Law, 5th edn, London, Longman

[7] Haughton V Smith (1975) AC 476

[8] p.204, ibid

[9] pg. 205, ibid

[10] Shivpuri [1987] AC 1, HL

[11] Anderton v Ryan [1985] AC 567, HL

[12] p.212. Elliott, C. and Quinn, F.,(2004) Criminal Law, 5th edn, London, Longman

13 R v Latif [1996] 1 WLR 104

14 R v Armstrong [1989] Crim LR 149

[13]

[14]

[15] R v Roberts (1972) 56 Cr App R 95

[16] R v Klass [1999] 1 Cr App R 453

[17] p.351 Reed, A and Seago P., (2002) Criminal Law, London, Sweet and Maxwell

[18] R v Maloney [1985] AC 905

[19] R v Hancock [1986] AC 455

[20] DPP v Smith [1961] AC 290

[21] Hyam v DPP [1975] AC 55

[22] R v Woollin [1999] 1 AC 82

[23] R v Nedrick [1986] 3 All ER 1, CA

[24] [1985] AC 168

[25] pg.148, Reed, A and Seago P., (2002) Criminal Law, London, Sweet and Maxwell

[26] [1991] 1 QB 134

[27] pg.148, ibid

[28] Powell and Another; English [1997] 4 All ER 545

[29] {1966} 2 QB 110


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