Criminal Exam (2014): Accomplice to the Robbery & Murder

1. Ahmed and Bashir are engaged in a bank robbery. Unknown to them Solly, a customer in the bank, is an off-duty policeman. Solly runs over to them intending to make an arrest. Zafar, another customer, believing Solly to be another robber, intentionally trips him up, thus making it easier for Ahmed and Bashir to escape.
   
   Discuss whether Zafar is an accomplice to the robbery.
2. Jack and Jill decide to burgle Humpty's house. Jill takes with her a baseball bat as is usual when the two burgle houses together. She has sometimes had occasion to use it on householders who have returned home unexpectedly. On this occasion Humpty surprises Jack and Jill in the course of the burglary. Jill finds she has left the baseball bat in another room and so she takes out a knife. Jack tells her to put it away and runs off. Jill murders Humpty with the knife.
   
   Discuss whether Jack is complicit in the murder.

General remarks
There is quite a lot in this two part question on complicity and so we did not expect candidates to cover all of the above points to get a good mark.

Law cases, reports and other references the Examiners would expect you to use
(a) indicative cases include Johnson v Youden and Carter v Richardson.
(b) see below.

Common errors
In (a) there was insufficient discussion of the principles governing liability as an accessory, in particular the intention to assist the principal with knowledge of the facts which make their action a crime. Indeed a minority of candidates went so far as to say that Zafar was an accessory to robbery. Others avoided the complicity element entirely and based discussion around mistake/prevention of crime relying on Williams (Gladstone). Clearly there is no need to rely on this defence unless
Zafar is complicit in the first place, which he is not. A good answer to this question would… include a descriptive element and identification and discussion of the major issues arising on the facts as follows.

(a) A good answer should first outline the basic elements of accessoryship including the actus reus of assisting or encouraging the principal in his commission of an offence and an intention to assist or encourage that commission. It should then move on to consider the requirement of knowledge. Zafar does not intend to assist A and B's commission of robbery by hampering the efforts of Solly to arrest them unless he knows or believes Solly to be trying to prevent the robbery or arrest them.

(b) A good answer should first outline of the principles governing joint enterprise liability. The joint enterprise is burglary. The secondary offence, committed by Jill, is murder. Jack and Jill are joint principals to burglary. Jill is guilty of murder as principal. The issue concerns joint enterprise liability and withdrawal, specifically:

• Whether Jack contemplated Jill's use of the knife with mens rea for murderin which case he is complicit (Powell) unless his order to put it away and running off counts as a withdrawal (Becerra and Cooper). Note that there is no evidence that he knew of the knife and so no basis upon which the jury could conclude that he contemplated its use.
• Whether Jack's contemplation that the baseball bat might be used with themens rea for murder by Jill in such a circumstance renders him complicit if, with the mens rea for murder, Jill uses a different weapon (English, Carpenter, Mendez, Chan Wing Siu are indicative cases). These authorities suggest that since a knife is fundamentally different from a baseball bat (English, Rahman) or more lethal than a baseball bat (Mendez) he will not be complicit in murder.
• Whether Jack is nevertheless liable for manslaughter (Carpenter) or nothing (except burglary) (Mendez).

Poor answers to this question…

A large minority of candidates answered both parts of the question without reference to complicity, restricting their analysis in (a) to the issue of prevention of crime and in (b) to the issue of Jill’s liability for murder.