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.
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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.
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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.
Explanation
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.
Repentance
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.
GREAT
IDEA:
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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