Common purpose
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In criminal law, the doctrine of common purpose, common design or joint enterprise refers to the situation where two or more people embark on a project with a common purpose that results in the commission of a crime. In this situation the participants are jointly liable for all that results from the acts and omissions occurring within the scope of their agreement. For example, the High Court of Australia in McAuliffe v The Queen 69 ALJR 621, states at 624 that "...each of the parties to an arrangement or understanding is guilty of any crime falling within the scope of the common purpose which is committed in carrying out that purpose" and concluded at page 627:
- ...it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of the joint enterprise the primary party might kill with intent to do so or with intent to cause grievous bodily harm.
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[edit] Explanation
In English law, the doctrine derives from R v Swindall v Osborne (1846) 2 Car. & K. 230 where two cart drivers engaged in a race. One of them ran down and killed a pedestrian. It was not known which one had driven the fatal cart, but since both were equally encouraging the other in the race, it was irrelevant which of them had actually struck the man, and they were held jointly liable. Thus, the parties must share a common purpose and make it clear to each other by their actions that they are acting on their common intention so that each member of the group assumes responsibility for the actions of other members in that group. When this happens, all that flows from the execution of the plan will make them all liable. This is a question of causation in that oblique intention will be imputed for intermediate consequences that are a necessary precondition to achieving the ultimate purpose, and liability will follow where there are accidental and unforeseen departures from the plan so long as there is no novus actus interveniens to break the chain. In cases where there is violence beyond the level anticipated, the prosecution must prove:
- (a) an act done by D which in fact assisted the later commission of the offence,
- (b) that D did the act deliberately realising that it was capable of assisting the offence,
- (c) that D at the time of doing the act contemplated the commission of the offence by A i.e. he foresaw it as a �real or substantial risk� or �real possibility,� and
- (d) that D when doing the act intended to assist A in what he was doing.
If there is doubt as to whether all the participants are contributing equally, those defendants whose contribution is less may be charged as accessories rather than as joint principals.
[edit] Deliberate departure
Where one of the participants deliberately departs from the common purpose by doing something that was not authorised or agreed upon, he or she alone will be liable for the resulting consequences. In the situation exemplified in Davies v DPP (1954) AC 378 a group comes together for a fight or to commit a crime and either they know or do not know that one of their team has a weapon. If they know that there is a weapon, it is foreseeable that it might be used and the fact that the other participants do not instruct the one carrying to leave it behind, means that its use must be within the scope of their intention. But if they do not know of the weapon, this is a deliberate departure from the common purpose and this breaks the enterprise.
[edit] When the outcome is death
The simplest form of joint enterprise to murder, is when two or more plan to cause death and do so. If all the parties participated in carrying out the plan, all are liable regardless who actually inflicted the fatal injury. But when there is no plan to murder and one party kills while carrying out a plan to do something else, e.g. a planned robbery in which the participants hope to be able to get what they want without killing anyone, but one of them does in fact kill, the other participants may still be guilty of murder or manslaughter provided that they had the necessary mens rea. In R v Lovesey and Peterson (1969) 53 Cr.App. R. 461 a gang was executing a plan to overpower a jeweller and steal his more valuable stock. After the robbery, the jeweller was found dead. All were properly convicted because the death was the outcome of the agreed use of violence. That this accidentally caused the jewller's death did not prevent liability. The usual case will involve plans to commit criminal damage, burglary, rape or some other crime and there will be no compelling inference that there must also have been a plan to kill. For the participants to be convicted of murder, the question becomes one of foresight that one of them might kill. In R v Powell (Anthony) and English (1999) 1 AC 1 the Lords said that the other participants must have realised that, in the course of the joint enterprise, the primary party might kill with intent to do so or with intent to cause grievous bodily harm, i.e. with the intent necessary for murder. Thus the Powell and English doctrine extends joint enterprise liability from the paradigm case of a plan to murder to the case of a plan to commit another offence in the course of which the possibility of a murder is foreseen (see R v Bryce (2004) [1]). In Attorney-General's Reference (No. 3 of 2004) (2005) EWCA Crim 1882 the defendant, H, was charged with manslaughter. H had sent K and C to terrify R, knowing both that K and C would have a loaded firearm with them, and that this firearm might be fired near R to increase his fear. The Court of Appeal held that H's liability depended on the scope of the joint enterprise. On the assumed facts, there was no evidence that H foresaw that the gun would be fired and R might be injured. Rather, K's intentional act of firing the gun so as to kill or cause R grievous bodily harm was fundamentally different from the acts contemplated by H. The outcome would have been different if there had been a common design to cause some harm to R. In such a case, H would be liable for manslaughter because, albeit to frighten, he had authorised the firing of the gun, i.e. he would have realised that K might intentionally cause some harm when he fired the gun. But on the assumed facts, H did not foresee the possibility of any harm to R let alone intentional harm so was properly acquitted.
[edit] Repentance
Where one person has been an active member of the common purpose, he or she may escape liability by withdrawal before the other(s) go on to commit the crime. But mere repentance without any action clearly leaves the party liable. To be effective, the withdrawal must actively seek to prevent what has been done from being relied upon by the others. In R v Becerra (1975) 62 Crim. App. R. 212 it was held that any communication of withdrawal by the secondary party to the perpetrator must be such as to serve "unequivocal notice" upon the other party to the common purpose that, if he proceeds upon it, he does so without the further aid and assistance of the withdrawing party. According to Smith and Hogan, Criminal Law:
- If an accomplice only advised or encouraged the principal to commit the crime, he must at least communicate his withdrawal to the other parties.
- Where an accomplice has supplied the principal with the means of committing the crime, the accomplice must arguably neutralise, or at least take all reasonable steps to neutralise, the aid he has given.
- In more serious cases, it may be that the only effective withdrawal is either physical intervention or calling in the police.
In R v Rook (1997) Cr. App. R. 327 the court held that, as in the case of joint enterprise where both parties are present at the scene of the crime, it is not necessary for the prosecution to show that a secondary party who lends assistance or encouragement before the commission of the crime intended the victim to be killed, or to suffer serious injury, provided it was proved that he foresaw the event as a real or substantial risk and nonetheless lent his assistance. Rook was convicted as one of a gang of three men who met and agreed the details of a contract killing to kill the wife of a fourth man on the next day. Rook did not turn up next day and the killing was done by his two fellows. His defence was that he never intended the victim to be killed and believed that, if he failed to appear, the others would not go through with the plan. Lloyd LJ. described the evidence against him in this way:
- So the position, on his own evidence, was that he took a leading part in the planning of the murder. He foresaw that the murder would, or at least might, take place. For a time he stalled the others. But he did nothing to stop them, and apart from his absence on the Thursday, he did nothing to indicate to them that he had changed his mind.
This did not amount to an unequivocal communication of his withdrawal from the scheme contemplated at the time he gave his assistance.
[edit] See also
[edit] References
- Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN 0-19-927918-7.
- Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN 0-406-97730-5.
