Firstly, the law on attempts, as covered by the Criminal Attempts Act 1981, defines the actus reus as ‘doing an act more than merely preparatory to the commission of the offence’, whereas the mens rea is ‘having an intention to commit the full offence’. Then the actus reus of attempted GBH can be inferred as ‘doing an act more than merely preparatory to cause really serious bodily harm’. And mens rea would be ‘intending or foreseeing some kind of harm can be caused’ (Cunningham recklessness). Thus, it is likely that the jury will convict Chuck for throwing a brick at the victim.
Secondly, Chuck can be charged with attempted murder. The law used to be so that if the principal commits murder and the secondary party intends only to do ‘some lesser harm’ rather than grievous bodily harm or killing, then he can be convicted of attempted manslaughter (Reid). However, the later cases of Powell and English and Mendez exclude the possibility of an attempted manslaughter conviction of a secondary party in joint enterprises. This approach to inchoate liability is replaced by the derivative liability (the accomplice is convicted of the same offence as the principle), which again wouldn’t provide justification for attempted murder.
Under the law of derivative liability, Chuck can be guilty of murder. The mens rea of this offence requires the accomplice to foresee that the principle might go on to commit an act rather than foreseeing the consequence of that act (Powell), bearing in mind the ‘weapons rule’ (the accomplice will be liable for murder if s/he is aware of the exact or similar kind of weapon that the principal has). The accomplice can be acquitted if the act of the principal is ‘fundamentally different’ (Gamble) than the range of acts the accomplice foresaw the principal might commit (Maxwell v DPP). In this case, the evidence shows that the defendant has agreed to a joint enterprise in order to cause grievous bodily harm to the victim. However, whether Chuck knew about the murder weapon or not is not provided. If Chuck wasn’t aware of the principal’s weapon, then the jury would find murder by using a cricket bat as a ‘fundamentally different’ act. If Chuck was aware of the bat, then he would be convicted, because it is not necessary to foresee how the weapon will exactly be used (Powell).
The other accomplice of the principal is Bill, and the shopkeeper is Faisal. After discussing whether Bill’s withdrawal can be effective to escape liability from murder, both Faisal’s and Bill’s liability under Serious Crime Act will be discussed.
The law on withdrawal requires firstly, that it must take place before the principal commits the offence, and secondly, the withdrawal must ‘neutralise’ the assistance provided to the principal (Rook). Both are considered according to the evidence. For the former, if the spontaneous attack of a group is finished and the principal goes on to charge another attack separately from the joint enterprise, then the accomplice is not liable for that attack (Mitchell). But walking away from an attack without further communication or neutralization cannot be enough if the attack of the joint enterprise isn’t over (Robinson). The facts of this case show that Bill has expressed his withdrawal before the principal committed the offence, but in contrast, he was part of a previously agreed, or planned joint enterprise.
Thus the latter requirement of ‘neutralisation’ must be examined. The law on neutralisation is not quite clear as the judges seem to show some reluctance to make this process compulsory, and yet they don’t want to diminish it (Lloyd LJ in Rook). The general rule is that to withdraw from a planned crime, mere absence in the crime scene is not enough. The accomplice has to make effective communication of his withdrawal, as well as showing intention to neutralise his assistance. It seems that Bill expressed his withdrawal. And because he could not foresee the murder of the victim, the jury would most probably see his mere assistance or encouragement as not a substantial risk to the offence committed. Thus he might be acquitted.
Both Faisal and Bill can be charged with encouraging or assisting an offence believing that one or more will be committed (s46). The actus reus doesn’t require the assistance to have a substantial risk, the principal to acknowledge the assistance, or even the commission of the offence. So ‘most marginal acts might suffice’. The mens rea is that D must believe (not intend) that his actions will encourage or assist the commission of one of the offences, and believes that one of the offences will be committed. Both defendants arguably assisted or encouraged the principle: Faisal suspected that Azad may use the bat to commit an offence, and Bill encouraged Azad by agreeing to a joint enterprise. The seriousness of the belief in mens rea is not clear in the legislation, thus if the court acknowledges their belief, they can raise defences (the reasonableness of their acts due to existing circumstances or the circumstances they believed to exist) provided in s50.
The facts of the case show that Azad will face murder conviction as legislations and common law provide proof for his conviction. For his accomplice Chuck, the judge direction and the jury decision play a significant role in determining a ‘fundamentally different’ act. Nevertheless, he would most likely be convicted of attempted GBH. Bill’s withdrawal depends on what the ‘neutralisation’ interpretation will be at his trial, but it looks promising that he might escape a conviction of murder. Yet, he might be convicted under s46 alongside with Faisal.
Bibliography
Attorney General’s Reference 3/1992, (1994) 98 Cr App R 383
Coroners and Justice Act 2009, s55
Criminal Attempts Act 1981, s1
DPP v Smith [1961] AC 290
Maxwell v DPP [1979] 68 Cr App R 128
R v Blaue [1975] 3 All ER 466
R v Gamble [1989] NI 268
R v Gnando [2010] EWCA Crim 1691
R v Gowans [2003] EWCA Crim 3935
R v Greatrex and Bates [1999] 1 Cr App R 126
R v Kennedy [2007] UKHL 38
R v Khan [1990] 1 WLR 813
R v Mendez [2010] EWCA Crim 516
R v Mitchell [1999] Crim LR 496
R v Powell and English [1998] Crim LR 48
R v Reid [1992] 1 WLR 793
R v Robinson, February 3, 2000; CA (Crim Div)
R v Rook [1993] 1 W.L.R. 1005
R v Woollin [1999] AC 82 (HL)
Serious Crime Act 2007, s46, s50
Ormerod and Fortson (2009:391).
The test of “substantial risk” has been removed in Woollin as it enlarges the scope of mens rea required for murder.
Criminal Attempts Act 1981
DPP v Smith [1961] AC 290
February 3, 2000; CA (Crim Div)
Ormerod and Fortson (2009:391).
