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Published online by Cambridge University Press: 02 January 2018
This paper examines, in the context of complicity as an example, how and why scholars theorise about the basis of the rules governing criminal responsibility and about the practice of the courts in imposing such responsibility and asks what sort of ‘impact’ of legal scholarship should be regarded as desirable or achievable or successful or should or can be sought. The methods and reasons of such scholars may include the habit and desire of providing explanations of the outcomes reached by the courts in particular difficult situations and may also involve developing justifications or critiques of them based on, or influenced by, theories of moral philosophy. This may also include a desire to influence future outcomes ‘in practice’ in related factual scenarios in a predictable and ‘just’ fashion consistently with the preferred theory. The paper examines whether the language in which (a contender for) a satisfactory explanation of a theory of derivative responsibility, expressed in terms inspired by George Fletcher, of complicity in wrongful even if excused conduct, can be (or has been) satisfactorily transposed into one expressed in language thought to be more amenable to the courts (such as ‘procuring an actus reus’). Case-law in this area is examined to see whether this sort of transposition does more harm than good and to what extent compromising or adapting an expression of principle in this manner may lead to unintended consequences. An alternative conclusion is also examined, which is that however carefully one formulates rules or statements of principle, unintended consequences will always or often follow and that this may not necessarily be a bad thing. Indeed, the ultimate conclusion may be that whilst having a beneficial influence on the substantive law may be a desirable impact which legal scholarship should aspire to or may be justified by, to adapt the words of John Gardner in a somewhat different context, having that impact should not be confused with trying to have that impact, since often it is the trying which is the problem (Offences and Defences (Oxford University Press, 2007) p 279).
Winner of the SLS Annual Conference Best Paper Prize 2008.
1 The least likely adjective in the instant case, some might say.
2 The LSE's role at the outset lay in the fact that the author was an impressionable young law teacher studying part time at the LSE on Leonard Leigh's comparative criminal law LLM course, which had taken Fletcher's book as its central text.
3 R Taylor ‘Complicity and excuses’ [1983] Crim LR 652.
4 Fletcher, GP Rethinking Criminal Law (Boston: Little, Brown & Co, 1978).Google Scholar
5 Blackstone's Criminal Practice (Oxford University Press), first published in 1991.
6 R v Millward (1994) 158 JP 1091 (CA) [1994] Crim LR 527.
7 The surprising way in which the courts can (gratifyingly) adopt a proposition and at the same time (more worryingly) apply it in a manner in which one might not initially necessarily or unreservedly approve is one of the main stimuli for writing this paper. Originally I also had in mind the same phenomenon experienced with the decision in R v Gilmour [2000] 2 Cr App R 407 relating to the potential for lesser liability of the accessory for manslaughter where the principal is convicted of murder. I have however decided that to deal adequately with all the nuances of the issues surrounding that particular area of law would be best left to a separate paper on another occasion, especially in the light of the recent decision in R v Rahman [2008] UKHL 45, [2008] 4 All ER 351 and the even more recent publication of the Ministry of Justice Consultation Paper on Murder Manslaughter and Infanticide Reform at the end of July 2008. Suffice to say that the same general lessons from the experience seem to me to be appropriate in terms of the differences between intended and actual impact and between what one thought were the key factors supporting a principle and what it turns out might be better supporting reasons.
8 Law Com No 305 (2007).
9 At p 744.
10 When asked about the greatest challenge for a politician, he is said to have replied, ‘Events, my dear boy, events’.
11 (1952) 36 Cr App R 125.
12 69 LQR 354.
13 [1976] QB 217.
14 Ibid, at 223.
15 Ibid, at 223.
16 ‘The theory of excuses’ [1982] Crim LR 732 at 735–738.
17 [1940] 1 All ER 339.
18 Taylor, above n 3. Note that Sanford Kadish, ‘Complicity cause and blame’ (1985) Calif LR 323 at 381 fn 175, seemed to infer that in this passage I was advocating conviction on the facts of Thornton v Mitchell when in fact I was pointing out that an untrammelled innocent agency principle would have that result, whereas the Cogan principle, to its credit, avoids it. Kadish did however go on to say at 382: ‘The conception of innocent [excused] wrongdoing may seem implausible because it is unfamiliar to the common law mind. After all, it has enjoyed general acceptance in Germany. Moreover, the reasoning of several of the English and American cases that have imposed accomplice liability based on the actions of an excused principal can be construed as an attempt, however unartful, to state just such a theory. Finally, this theory, even with its drawbacks, appears to be the best doctrinal move to justify liability that a court could make without statutory changes’.
19 Eg, in addition to Kadish, ibid, early editions of Clarkson, C and Keating, H Criminal Law: Text and Materials (London: Sweet and Maxwell)Google Scholar contained a good discussion of the theory, as did who nonetheless noted at p 134 that this sort of theory ‘can easily be perceived as some form of theoretical dandyism or over refinement’.
20 Chapter A5.
21 Not least because of constraints of space but in any event I am not sure that I had then properly worked out the relationship, not even to the limited extent that might now be said to be the case.
22 A formulation contained in each of the first seven editions of Smith, and Hogan, Criminal Law (Oxford: Oxford University Press)Google ScholarPubMed, eg 6th edn, 1988, p 156, 7th edn, 1992, p 153: ‘Whatever its reasoning and its merits, the result in both Bourne and Cogan and Leak is that the abetting or counselling of a mere actus reus is indictable. The result produced is just and logical’.
23 Blackstone's Criminal Practice, above n 5, para A5.6, p 68 (emphasis added).
24 See Kadish, above n 18.
25 Something which I should have referred to in my earlier comments in ‘Procuring, causation, innocent agency and the Law Commission’ [2008] Crim LR 32.
26 (2007) 1 Criminal Law and Philosophy 127, now published as ch 3 of Gardner, J Offences and Defences (Oxford: Oxford University Press, 2008).Google Scholar
27 [1994] Crim LR 527 at 530.
28 158 JP 1091 at 1099G (emphasis added).
29 One of the problems with reckless driving however, as will be seen and indeed is well recognised, is that it can also be interpreted as factually rather than attitudinally defined, the descriptor ‘reckless’ describing both the conduct, driving, which in fact creates a particular risk, and also the fault element, awareness (or indifference to) risk.
30 Another way of describing it may be as a ‘pure’ conduct crime but this may cause more confusion than clarity. Conduct crimes are often contrasted with result crimes and thus include offences such as rape or bigamy where the actus reus includes a circumstance (lack of consent or being married) rather than a result. However, a ‘pure conduct’ crime, or what I have preferred to call an ‘attitudinally defined conduct’ crime makes a contrast with these circumstance crimes as well as with result crimes in that the fault element does not relate to the circumstances defined in the actus reus (which we might call ‘correspondence’ mens rea) but consists of an attitude to something else not actually part of the actus reus – a sort of ‘ulterior attitude’.
31 See Simester, AP and Sullivan, GR Criminal Law: Theory and Doctrine (Oxford: Hart, 3rd edn, 2007) p 151 Google Scholarunder the heading ‘Negligence with respect to behaviour rather than consequences or circumstances’, ‘...;negligence sometimes operates like an actus reus term’, and also p 138 under the heading ‘Recklessness as an actus reus term’.
32 Strictly speaking ‘without due care or attention’ – is this ‘driving minus’ rather than ‘driving’, ie conduct that is less than driving?
33 See Gardner's essay entitled ‘Fletcher on offences and defences’ (Offences and Defences, above n 26, ch 4) esp pp 150–153 and his discussion of ‘fault anticipating wrongs’; and Fletcher, above n 4, pp 388–390 on the three patterns of liability including the pattern of subjective criminality and p 481 warning against the assumption that only one theory of wrongdoing accounts for the entire criminal law.
34 Making a statement in a judicial proceeding ‘which he knows to be false or does not believe to true’ – there is no requirement that in fact it is false and it is the maker's attitude (which might be summarised as insincerity) which is the gist of the offence and essential to the definition of the proscribed and wrongful conduct.
35 See the observations of Lacey, N, Wells, C and Quick, O in Reconstructing Criminal Law (Cambridge: Cambridge University Press, 3rd edn, 2003) p 62 Google Scholaron the undue commitment in the criminal law to philosophical dualism.
36 See A-G Ref (No 4 of 2000) [2001] Crim LR 578 where D hit the accelerator of the bus he was driving by mistake rather than the brake pedal but nevertheless intended to drive.
37 It depends on whether the manner of driving refers also to (i) the way in which the car actually moves about on the highway or only refers to (ii) the driver's attitude or thought processes or lack of them – the problem is exacerbated by the fact that (i) may be taken as evidence of (ii) and that (ii) will often be difficult to establish in the absence of (i).
38 1986 RTR 49.
39 [1993] Crim LR 519.
40 Eg giving virtually no care or attention to one's driving as opposed to not giving due care or attention as in Thornton.
41 [1996] Crim LR 341.
42 And indeed on final analysis, as will be seen.
43 These italicised words are the ones which have to be treated as implicit but surely they are – if the driving is not in fact dangerous it would not be obvious that it would be dangerous under subpara (b).
44 Clarkson, C, Keating, H and Cunningham, S Criminal Law Text and Materials (London: Sweet & Maxwell, 6th edn, 2007) p 577Google Scholarappear to be moving towards accepting that there was an actus reus in Loukes, effectively recognising in passing the mistake by the court in Loukes of analysing the offence as an absolute offence just because it did not require subjective mens rea, when of course in truth it requires objective fault and is effectively an offence of negligence.
45 To use the phrase from A-G's Ref (No 1 of 1975) [1975] QB 773.
46 See Gardner's conclusions in ‘Complicity and causality’ in Offences and Defences, above n 26, p 76: ‘Accomplices themselves bring wrongdoing into the world. So too do principals. The essential difference between accomplices and principals is that accomplices bring wrongdoing into the world through principals’.
47 As in Callow v Tillstone (1900) 83 LT 411.
48 [1997] Crim LR 209.
49 Hutchinson, AC Evolution and the Common Law (Cambridge: Cambridge University Press, 2005).CrossRefGoogle Scholar
50 As to which see, eg, O Jones ‘Proprioception, non-law and biolegal history’ 53 Fl L Rev 831 and comments in response by J Stake ‘Pushing evolutionary analysis of law’ 53 Fl L Rev 875.
51 A particularly relevant comment for present purposes comes at the end of Hutchinson, above n 49, p 289: ‘...;in law it is not so much that there is a blind watchmaker at work, but that there is a coterie of fully sighted arborists who take charge of the trees' cultivation and who, despite their frequent claims to the contrary, are unable to foresee or control fully the trees' future development’.
52 [1997] 1 Cr App R 36.
53 And the strange obiter dictum that it would have been different had the child been under 10: [1997] 1 Cr App R 36 at 42.
54 See Taylor, above n 25, at 47 for the argument that an assister or encourager who acts with more than indifference or foresight, but who intends the offence to be committed, becomes automatically a procurer if the principal goes on to commit the offence as intended.
55 A similar forensic advantage arising from the nature of procuring may also be illustrated by a case such as R v Gianetto [1997] 1 Cr App R 1 where D may have been the perpetrator of his wife's killing or he may have procured someone else to kill her. What was clear was that he wanted her dead (as was evident from the fact that he had tried to pay someone else to kill her on a previous occasion) and that he had either killed her or procured the actus reus of killing her to be carried by someone else. If the evidence in favour of his secondary participation had merely been, eg, that he (knowingly but indifferently) agreed to supply the weapon to someone else who wanted to kill the victim, it would have been very difficult to convict on the basis that he intended her death and brought it about either by killing her himself or by assisting someone else to do it. It was the fact the secondary participation alternative involved procuring (and thus intention) that made it consistent with the killing as principal alternative and leant support to the legitimacy of the finding that her death was not the result of the act of some independent third party.
56 In this respect at least, the facilitative and unspecific nature of the Law Commission proposals in Report No 305 on joint venture responsibility (for which it was criticised – see [2008] Crim LR 19) may be a wise way forward (in contrast to the over-detailed complexity of the twinned provisions dealing (i) with innocent agency and (ii) with complicity in ‘offences’ to which the principal has a ‘defence’).
57 Gardner Offences and Defences, above n 26, p 297: ‘That ceteris paribus everyone should minimize wrongdoing by everyone does not mean that ceteris paribus everyone should try to minimize wrongdoing by everyone. For much of this effort would be inefficient i.e. would not succeed in reducing wrongdoing and might even increase it...;making the common mistake of confusing what one should do with what one should try to do, forgetting that often it is the trying that is the problem’.
