Slava Novorossiya

Slava Novorossiya

Tuesday, January 1, 2013


                When I researched about the death penalty in the United Kingdom, one of the law that caught me with interest was the Joint Enterprise Law. A law which I believed in it that was a great deterrent to crime. I will post about it from Wikipedia before showing examples of how it helped to the deter homicide and also my thoughts on it.

From around 1771 to September 1786, when he died, Edward Dennis was the official executioner and carried out 201 hangings and the three burnings at Newgate. He had previously officiated at Tyburn from 1771. On Tuesday, the 9th of December 1783, he and William Brunskill hanged nine men and one woman (Frances Warren) side by side on the "New Drop" at Newgate’s first execution (see picture). Note that they all have white nightcaps drawn over their heads.
The doctrine of common purpose, common design or joint enterprise is a legal doctrine in some common law jurisdictions which imputes criminal liability on the participants to a criminal enterprise for all that results from that enterprise. A common incidence of the application of the rule is to impute criminal liability for assaulting a person with a knife, on all the participants to a riot who knew, or were reckless as to knowing, that one of their number had a knife and might use it, even when the imputed participants did not actually have knives themselves.

In English law, the doctrine derives from R v Swindall and 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 each other in the race, it was irrelevant which of them had actually struck the man so both 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.

Deliberate departure
Where one of the participants deliberately departs from the common purpose by doing something that was not authorised or agreed upon, that participant alone is liable for the 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 the participant knows or does not know that one of their team has a weapon. If the person knows 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 the person does not know of the weapon, this is a deliberate departure from the common purpose and this breaks the enterprise.

When the outcome is death
The simplest form of joint enterprise to murder is two or more planning to cause death and doing so. If all the parties participated in carrying out the plan, all are liable regardless of 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, such as 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 jeweller'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)). 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.

In R v Gnango, the Supreme Court held that D2 is guilty of the offence of murdering V if (1) D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if (2) D1 mistakenly kills V in the course of the fight.

One person who has been an active member of the common purpose may escape liability by withdrawing before the other(s) go on to commit the crime. Mere repentance without any action, however, leaves the party liable. To be effective, the withdrawing party must actively seek to prevent the others from relying on what has been done. 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.

            I personally do support this law and I think it will deter homicide greatly. However, there must be massive safeguards when meting out this law, as I do not want another Derek Bentley case (I will be blogging on 28 January 2013 on how to prevent a miscarriage of justice like this).

          Here are some examples on how gang members went unarmed because of the joint enterprise law:

1. "That the ever present potentiality in California of the death penalty, for murder in the commission of armed robbery, each year saves the lives of scores, if not hundreds of victims of such crimes, I cannot think, reasonably be doubted by any judge who has had substantial experience at the trial court level with the handling of such persons. I know that during my own trial court experience...included some four to five years (1930-1934) in a department of the superior court exclusively engaged in handling felony cases, I repeatedly heard from the lips of robbers...substantially the same story: 'I used a toy gun [or a simulated gun or a gun in which the firing pin or hammer had been extracted or damaged] because I didn't want my neck stretched.' (The penalty, at the time referred to, was hanging.)" - The Honorable B. Rey Shauer Justice of the Supreme Court of California

2. “In the 1960's, I was appointed to one of the term-setting and paroling authorities and sat on some 5,000 cases of women who were convicted of felonies in the State of California. I remember one woman who came before me because she was convicted of robbery in the first degree, and I noticed on what is called the granny sheet that she had a weapon, but it was unloaded. I asked her the question why was the gun unloaded and she said, so I wouldn’t panic, kill somebody and get the death penalty.
“That case went by and I didn’t think too much of it at the time. I read a lot of books that said the death penalty was not a deterrent. Then in the 1970's, I walked into a mom-and-pop grocery store just after the proprietor, his wife and dog had been shot. People in real life don’t die the way they do on television. There was brain matter on the ceiling, on the canned goods. It was a terrible, terrible scene of carnage.
“I came to remember that woman because by then California had done away with the death penalty. I came to remember the woman who said to me in the 1960's, the gun was unloaded so I wouldn’t panic and kill someone, and suddenly the death penalty came to have new meaning to me as a deterrent.”
Statement of the Honorable Dianne Feinstein, Senator from California, Hearing Before the Senate
Judiciary Committee on S.221 (April 1, 1993).

3. Senator Feinstein has described the same deterrent effect at work in San Francisco. She has stated:

There has been a lot of discussion as to whether the death penalty is or is not a deterrent. But I remember well in the 1960s, when I was sentencing a woman convicted of robbery in the first degree, and I remember looking at her commitment sheet and I saw that she carried a weapon that was unloaded into a grocery store robbery. I asked her the question: ‘Why was the gun unloaded?’

She said to me: ‘So I would not panic, kill somebody, and get the death penalty.’ That was firsthand testimony directly to me that the death penalty in place in California in the sixties was in fact a deterrent.           

141 Cong. Rec. S7662 (June 5, 1995).

4. Senator Arlen Specter, who formerly served as District Attorney of Philadelphia, and has tried capital murder cases, has stated that “[b]ased on this experience, I am personally convinced that many professional robbers and burglars are deterred from taking weapons in the course of robberies and burglaries because of the fear that a killing will result, and that would be murder in the first degree.” 141 Cong.

Rec. S7893 (June 7, 1995). Senator Specter has described a case in which three criminals decided to rob a grocery store in North Philadelphia. They talked it over, and the oldest of the group, Williams, had a revolver which he brandished in front of his two younger coconspirators. When Carter, age 18, and Rivers, 17, saw the gun they said to Williams that they would not go along on the robbery if he took the gun because of their fear that a death might result and they might face capital punishment – the electric chair.

5. Louis Pojman was quote in his article, The Wisdom of Capital Punishment:

Some of the commonsense evidence is anecdotal as the following quo-tation shows. British member of Parliament Arthur Lewis explains how he was converted from an abolitionist to a supporter of the death penalty:

One reason that has stuck in my mind, and which has proved [deter-rence] to me beyond question, is that there was once a professional burglar in [my] constituency who consistently boasted of the fact that he had spent about one-third of his life in prison. ... He said to me "I am a professional burglar. Before we go out on a job we plan it down to every detail. Before we go into the boozer to have a drink we say 'Don't forget, no shooters' — shooters being guns." He adds '"We did our job and didn't have shooters be-cause at that time there was capital punishment. Our wives, girlfriends and our mums said, 'Whatever you do, do not carry a shooter because if you are caught you might be topped [executed].' If you do away with capital pun-ishment they will all be carrying shooters."

6. Louis Pojman was quote in his article, The Wisdom of Capital Punishment:

The commissioner of police of London, England, in his evidence before the Royal Commission on Capital Punishment, told of a gang of armed robbers who continued operations after one of their members was sentenced to death and his sentence commuted to penal servitude, but the same gang disbanded and disappeared when, on a later occasion, two others were convicted of murder and hanged.

7. Wesley Lowe’s Pro Death Penalty Page:

In the 1800s, in English occupied India, there was one of the worst gangs of murdering thieves the world has ever known, the Indian hoodlum band known as the Thuggees. Through the course of their existence, dating back to the 1550s, the Thuggees were credited with murdering more than 2,000,000 people, mostly wealthy travelers. The killer secret society plagued India for more than 350 years. The Thuggees traveled in gangs, sometimes disguised as poor beggars or religious mendicants. Sometimes they wore the garb of rich merchants to get closer to unsuspecting victims. One of their principles was never to spill blood, so they always strangled their victims. Each member was required to kill at least once a year in order to maintain membership in the cult. But they killed in the name of religion. The deaths were conceived of as human sacrifices to Kali, the bloodthirsty Hindustani goddess of destruction. It came to pass that the Thuggees began to kill using pickaxes and knives. According to legend, the Thuggees believed that Kali devoured the bodies of their victims. The story goes that once a member of the society hid behind a tree in order to spy on the goddess. The angry goddess punished the Thuggees by making them bury their victims from then on.

The ruling British government worked very hard to stop the Thuggee religion and its murderous practices. Between 1829 and 1848, the British managed to suppress the Thuggees by means of mass arrests and speedy executions. Indeed, rows and rows of Thuggees were left hanging from the gallows along the roads by the dozens. This not only established a zero recidivism rate, but it also greatly discouraged new membership into the cult. The most lethal practitioner of the cult of Thuggee was Buhram. At his trial it was established that he had murdered 931 people between 1790 and 1840. All had been strangled with his waistcloth. Burham was executed in 1840. Appropriately enough, he was hanged until he strangled. In 1832, the Agent to the Governor-General of India, F. C. Smith had this to say about the Thugees and their deeds.

“I have never heard of such atrocities, or presided over such trials, such cold-blooded murders, such heart-rending scenes of distress and misery; such base ingratitude; such a total abandonment of the very principle which binds man to man; which softens the heart and elevates mankind above the brute creation...mercy to such wretches would be the extreme of cruelty to mankind...blood for blood.”

In 1882, the British government deemed the problem solved with the hanging death of the last known Thuggee. Good riddance.

Back then, the British weren't as morally confused as they are now. Not only had they the insight to tell the difference between crime and punishment, but they also respected their moral responsibility to defend public safety by diligently countering barbarism, even in their colonies. If the British were anything back then like they are now, they would have been content to sit around on their hands reveling on how "civilized" they are to allow such and evil cult like the Thuggees to exist and terrorize the public. -gladly sacrificing public safety and social tranquility for some self-absorbed sense of delicacy. Most likely, the Thuggees would still be around today and for many centuries more to plague India. The Indians have a lot to be thankful for since the British eliminated that scourge over a century ago. They wouldn't have the nerve to effectively counter such barbarism these days.

8. A Professor of Ethics at one of America's leading universities, told journalist, Simon Heffer, "Of course capital punishment works. In China recently they had a drug problem. One day, they took out 6,000 drug dealers and shot them in the back of the head. The result: they don't now have a drug problem."

            I also heard from an old friend in the United Kingdom that the IRA were hardly active when UK had the joint enterprise law, most probably because if one fired the fatal shot, all would be swinging at the end of the ropes! Sadly, after the death penalty was abolished in the late 1960’s, more innocent people were murdered. One of my beloved judges, the Lord Chief Justice Rayner Goddard was right to warn them against abolishing the death penalty. The Joint Enterprise Law could have saved the life of PC Sharon Beshenivsky and those killed at Shepherds’ Bush

            I do not know whether Islamic countries like Iran and Saudi Arabia uses this law today, even if the crime is non-homicidal but I suspect that they might be using it (I might be wrong here). Other than the case of the Black Vultures of Iran, Iran has executed hundreds of drug traffickers.

            As for Saudi Arabia, I got this information from Wikipedia:

Saudi Arabian authorities beheaded four men in February 2007— Sangeeth Kumara, Victor Corea, Ranjith Silva and Sanath Pushpakumara.These four Sri Lankan workers were convicted in a Saudi Arabian court for an armed robbery committed in October 2004. Their deaths sparked reactions from the international human rights group Amnesty International, which called on the Saudi authorities to abolish the death sentence. The court also ruled that the bodies of the four workers be crucified for public view as an example for others. In most such cases the respective embassy is notified only after the execution, thereby eliminating chances for international or diplomatic protest.

            I suggest that this law can be used against terrorists, even if one fired the fatal shot or one did the bombing, all must pay with their lives!

             Do not forget what English Philosopher, William Paley wrote in his book, The Principles of Moral and Political Philosophy:

The proper end of human punishment is, not the satisfaction of justice, but the prevention of crimes.

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