nm5491: right first question is er whether er or not er it's reasonable to make 
somebody er an accomplice criminally liable if er they have a power to prevent 
the crime but fail to do so as in the case between DuCross and Lambourne what 
do you think
sm5492: shouldn't it be only where they've actually got a duty to do something 
because otherwise if it's just if they can do something about it then that's a 
bit wide 
nm5491: yes i suppose one oddity about the case between DuCross and Lambourne 
is that it almost imposes a duty by virtue of the power doesn't it er and it 
would be much more satisfactory if liability attached where there was a clear 
pre-existing duty er as in the ca-, the ca-, case of the railway crossing 
keeper who seems to have a clear duty which we can all understand to people 
passing across the railway line
sm5493: i think also er if there's a danger to the person who's trying to er to 
stop the er crime i think they shouldn't be able they shouldn't you shouldn't 
try to stop it because er placing themselves in danger then er there's no point 
because a crime would already happen and might have a death it might have an 
injury it might have whatever so er i think the best thing that you could do is 
just call the police and stay out of it rather than trying to stop the criminals
nm5491: mm thanks James that's a great point er one thing about the DuCross and 
Lambourne principle is that its unclear er we know that DuCross did absolutely 
nothing and the courts held that he was liable as an accomplice because he did 
nothing the big question is well what did he have to do er what sort of 
endeavour to prevent the crime occurring by himself would have been enough to 
prevent him being liable er would it have been enough if he simply gave a clear 
order to his girlfriend to slow down and not drive like that or as you say 
should he have gone further if she'd ignored him probably not we'd have thought 
because but that does identify a clear area of of difficulty with the doctrine 
doesn't it 
sm5493: yeah it's ambiguous 
nm5491: mm mm
sm5492: well couldn't you say that he did have a duty there though because it 
was his car it was his girlfriend he was licensed he was paying the tax he 
bought the car and so surely he he would have a duty to do something about it
nm5491: well it's interesting this case almost seems to be quite reasonable 
because we are used to the idea that the motor car er is er er a rather 
dangerous object which is surrounded by all sorts of special legal rules we 
have to be qualified to drive it er we have to keep the car in good condition 
we have to observe all sorts of rules relating to the car so it doesn't seem 
unusual in a way to say that yes the owner has a duty in relation to somebody 
that might be driving it the problem is that that duty isn't specified in the 
statutes is it the statutes do create all sorts of duties er relating to er t-, 
to most cars but not that one and 
sm5493: isn't that implied surely that is implied that you're driving a car er 
you have duties that are implied not necessarily that don't have to only be 
statutory er possibility that they also have to be implied sort of thing
nm5491: well er i mean that's an argument although it is slightly odd isn't to 
base criminal liability on a duty that's merely implied 
sm5493: when i say impli
nm5491: that you may not realise you have from outset 
sm5493: whe-, when i say implied i mean that er something within reason er you 
can't expect for example someone er to er do something completely unreasonable 
and and er and then accuse them that it was implied when i mean implied has to 
be within reason er it doesn't have to be within the statut-, statutory within 
your statutory responsibilities
nm5491: mm mm
sm5493: er for example er apply brakes at the at at a at er a re-, a reasonable 
time to stop at the for example that's implied 
nm5491: yes there's no problem there is there because the law does say that 
you've got to drive carefully and that if you fail to do so you commit various 
offences 
sm5493: and within that 
nm5491: yes i mean this is extending liability from the driver and we know he's 
liable for the way the car is driven to to somebody else who's there
sm5494: it's almost taking so-, sole responsibility for somebody else's actions 
which you can't really enforce you know particularly
nm5491: yes it almost seems to weaken the notion that people are personally and 
autonomously responsible for their own actions doesn't it er DuCross is liable 
because he should have interfered with her 
sm5494: mm
nm5491: prevented her from committing the crime and we don't normally require 
that in other contexts do we 
sm5494: no 
nm5491: er i suppose the other area in which this er principle is uncertain is 
er in relation to er how closely connected the owner of the property in 
question needs to be er what if DuCross was sitting on the side of the road and 
saw her driving in this way would he still have been liable for failing to try 
and stop her do you think 
sm5495: i mean unless he stood up and got knocked down because [laughter] i 
wouldn't try to stop her 
nm5491: well if he could have flagged her down or something 
sm5495: oh well
nm5491: i suppose my question is more pertinent in relation to responsibility 
relating to premises as in the Tuck and Robson case where the the landlord was 
responsible for the after hours drinking who's said to be an accomplice to the 
people who are breaking the law er you know would he be responsible for people 
you know three rooms away in the premises you know or or should he only be 
responsible for those who are in his direct company 
sm5492: what is the law though he can't sell drinks after hours or th-, that 
they can't be drunk after hours 
sm5496: you can't sell them because you can have private parties can't you 
after hours if they don't charge for it 
nm5491: that's right
sm5492: so surely it wouldn't matter if they were drinking in different rooms 
so long as they weren't selling anything 
nm5491: th-, there is a a period of drinking up time h-, he must stop selling 
at a particular time then under the Licencing Act again there is a period of 
drinking up time afterwards the customers may commit a crime er one of the 
arguments i think about Tuck and Robson was that the Courts were effectively 
filling in a gap in the Licensing Act er the argument was that the Licensing 
Act shouldn't make the licensee responsible for after hours drinking because 
the act didn't give cause for doing so i suppose if you are trying to prevent 
after hours drinking it's probably much more useful to make the licensee liable 
than the individual drinkers er because you know the drinker can commit a tiny 
offence be fined a little bit and walk off the licensee's stuck there he's got 
to r-, run the pub if it happens more than a number of times he can end up with 
a s-, substantial criminal record so he'd have a real incentive to prevent the 
crime occurring anyway let's move on to the problem having discussed some of 
the the issues relating to that rather odd principle right the problem er 
Albert's planning to burgle bank one day he saw Bill who was a bank employee in 
the pub Albert bought him a few drinks and persuaded him to draw a plan of the 
bank showing him the positions of the burglar alarms and security cameras Bill 
did this but the next day he became unhappy and wrote to Albert asking for the 
plan back Albert ignored the letter er Bill i think it should be telephoned the 
police anonymously to warn them that a burglary might take place at the bank 
but er although the police warned the bank they didn't take any further action 
because they didn't have sufficient details er Albert then asked Celia to help 
him er Celia realised that she was being invited to take part in a crime she 
said she'd be happy to give him a lift to wherever he wanted to go but didn't 
want to know the details of the crime on the night in question Celia gave 
Albert the lift to a r-, a road near the bank and she waited in the car Albert 
went off to the bank er broke in but was disturbed by a security guard Albert 
then ran back to Celia's car with the guard in pursuit Albert pushed Celia into 
the passenger seat and himself jumped into the driver's seat as Albert began to 
drive off the guard jumped on to the side of the car Albert shouted get him off 
Celia pushed the door open and the guard fell off er and died from injuries 
incurred when he h-, when he hit the road okay we've got to consider who might 
be liable for burglary or any offence involving the death first question in 
relation to any problem is how can we structure our answer to this problem 
Stephanie how would you do that 
sm5497: break break the problem down into sections
nm5491: mm mm
sm5497: so something like divide the events up so you know which order they 
occurred in
nm5491: okay so where would you start i mean 
sm5497: er in the pub where Albert asked Bill for a plan of the 
nm5491: mm okay so one view is we start at the beginning of the story any other 
views as to how to start with this problem
sm5496: if we look at each individual and decide what their liability is based 
on their actions 
nm5491: yes er which individuals would you start with 
sm5496: er Albert or Bill 
nm5491: okay any-, anybody else like to suggest a way of going about this 
problem Laura where would you start 
sm5494: er i suppose in establishing wha-, what actual crimes took place so 
you've got the burglary and the er manslaughter i suppose and work out who was 
liable for those particular crimes 
nm5491: good okay a coup-, 
sm5495: how ab-, 
nm5491: sorry 
sm5495: how about if you take it the way its been given to us i mean like first 
you say maybe so and so's going to be liable and you just start actually the 
question according to the way it's been given the plot developing the plot the 
way its been given to us like right Albert might be liable because he produced 
the plan and maybe Bill because he did this and maybe not because 
nm5491: mm yeah well that's the way Stephanie's suggested and its i think its 
its almost the natural way of doing it i think Laura's way er is probably the 
better way what you've got to remember is that accomplice liability is 
derivative er the accomplice is only liable if there is a principle crime 
committed by somebody else and there's no issue of somebody being just liable 
as an accomplice in the abstract they must be liable for a crime so the 
starting point is to work out what the crimes are and of course because of er 
the requirements of the Means Rea of the accomplice it may be important er to 
determine precisely what the criminal activity is before we can work out if 
somebody is an accomplice in it er i think in relation to his death you said 
well its probably manslaughter it doesn't have to be does it could be murder 
and the category of homicide offence may determine whether a particular 
individual can be involved in it or not so let's just talk about the principal 
offences as we always should do in relation to an accomplice problem first of 
all one of the principle offences is this burglary that's not on the course 
this year er so there won't be any technical issues about burglary burglary's 
entering a premises as a trespasser with intent to commit a crime therein crime 
could be theft so it's pretty obvious that Albert's committed burglary so 
that's one principle crime what about though the er death of the guard what can 
we say about that 
sm5493: i i wouldn't consider it as murder i'd call it manslaughter because 
when er Albert all he said was get him off he didn't say kill him so all she 
tried to do was basically push him out of the car and er not to kill him so him 
dying er was not her intention so it was basically just manslaughter 
sm5492: but i mean how obvious was that it he was going to die if i push 
someone off a moving car 
sm5493: yeah
sm5496: she's got to have er foreseen the fact that its gonna serious injury
sm5492: yeah 
sm5496: at least 
sm5493: yes but i i wouldn't think that just by pushing someone off the car i 
mean okay if the car is speeding very fast at a hundred a hundred and fifty 
miles an hour then okay fair enough he's going to die but i mean it was it 
wasn't the acceleration and it wasn't a Ferrari that's for sure accelerate at a 
hundred miles an hour it must have accelerated at forty thirty fifty like that
sm5496: well could have so she pushed her door open she's not just pushed him 
off she's pushed the door to throw him off 
sm5492: he could have gone in front of the car under the wheels 
sm5496: yeah i mean she's got to 
sm5493: he fell if the car +
sm5492: 
sm5493: he must have to the left into the 
sm5496: in he's been thrown off the car 
sm5493: not into the wheels 
sm5492: he could have gone under the wheels of oncoming traffic it's fairly 
obvious that if someone's clinging to a car and you shove them off as you're 
driving along they're going to be hurt
sm5495: but if yeah actually some 
sm5494: is the car stationary though
sm5496: no 
sm5495: no it's not 
sm5493: it was on the acceleration 
nm5491: no they were busy accelerating away i think to get away
sm5495: yeah that makes it a little bit more obvious that this person could 
have suffered serious damage 
sm5496: i mean it's gonna be 
sm5495: because if you're gonna someone off the door of a car that is 
definitely gonna hurt them there's no way 
sm5493: it'll hurt them exactly not kill them 
sm5496: but i mean he's gonna he's gonna land onto the pavement or road i mean 
sm5493: i mean he wasn't he wasn't going at a hundred miles an hour 
sm5492: how do you know 
sm5493: because the acceleration 
nm5491: well the guard did die didn't he 
sm5495: let's not the acceleration 
nm5491: okay le-, let's cut through this we're having great arguments for the 
defence and the prosecution here and these are exactly the sorts of arguments 
that we'd hear in court in this case but of course when we're doing the problem 
our job is to play the role of the judge not the jury i知 always warning people 
against doing what they naturally want to do which is to decide the open 
questions of fact which y-, you started by doing didn't you by saying it was 
not murder and siding with the prosecution in saying that it could be the 
important question is that there is a question there to be decided by the jury 
and we play the role of judge in in in dealing with this problem and our job is 
to set out what the issues are what the result will be if the jury decide 
either way so if it was charged as murder what would be the issue for the jury 
sm5498: whether Celia intended to cause G-B-H or death 
nm5491: yes a simple question and i suppose you'd add to that a sort of 
extended meaning of intent wouldn't you which is very pertinent to this case i 
mean we know what the motive is which is just to get rid of the guard so i mean 
maybe if you asked her at that moment do you want to you know is it your desire 
to hurt this person she'd probably say no i would i'd dearly like him to fall 
off without being hurt 
sm5493: er 
nm5491: but she still might be held to have intended his serious injury or 
death and how might that be 
sm5498: is it foreseeability 
nm5491: yes no forgotten it i致e forgotten it too [laughter] the er yes the 
courts will equate foresight of virtual certainty with intent won't they so 
that could apply here if it's not murder i mean obviously the jury could accept 
that she didn't intend that level of harm death or grievous bodily harm if it's 
not murder er what will it be 
sm5493: manslaughter 
nm5491: ah yes but what sort of manslaughter 
sm5496: unlawful and dangerous act 
nm5491: yeah and what would the unlawful act be 
sm5496: the fact that they've er robbed a bank or the fact that they've shoved 
him off a car 
nm5491: well which which do you think 
sm5496: er i知 not really sure 
nm5491: they're linked aren't they would you say that robbing the bank was 
dangerous 
sm5492: yeah
sm5495: it's against the law 
nm5491: sure it's against the law but is it dangerous what does dangerous mean 
sm5495: it might be dangerous because if you're gonna you might find some 
police guard or something and you and they might try to stop you and then you 
might have to either shoot them to slow them down again in the leg maybe 
they'll die 
sm5492: in the foot 
sm5495: yeah 
nm5491: but when we're asking our question was this er crime dangerous for 
manslaughter we're not hypothesising about what might have occurred are we 
we're not talking about burglaries or robberies in general we're talking about 
this burglary the burglary took place when he was in the bank is there anything 
apparently dangerous about that 
sm5496: no so obviously the pushing off isn't 
nm5491: yes that's right so so the manslaughter charge will focus on he-, her 
action pushing him off the door wouldn't it 
sm5494: is the fact that it was Albert who who was er performing the burglary 
and the fact that Celia pushed him off the car make it different because it's 
Albert's if if robbing a bank was considered dangerous that presumably is 
Albert's dangerous
nm5491: that's right yes er but i mean i i don't think robbing the bank 
although it's a bank would be a cause of death either would it so to look at 
manslaughter you've got to focus on a a voluntary that was can be linked 
causally to the death and in this case i think again it's the pushing the guard 
off the door isn't it 
sm5492: so even though it was Albert who wanted to do the burglary and Albert 
who did everything and she was just driving she'd be the one guilty of 
manslaughter 
sm5496: yeah but he would be as well wouldn't he he'd be an accessory she'd be 
the principle but he'd be the principle of the robbery
sm5492: isn't that a bit harsh she's the principle and he's the accessory 
nm5491: well what is a principle offender a principle offender is a person 
who's conduct fulfils the definitional elements of the offence
sm5496: um
nm5491: for murder or manslaughter the starting point the actus reus is doing 
the voluntary act that causes death who's that 
sm5493: Celia 
nm5491: Celia yeah we we we stereotype her as the accomplice but when it comes 
to the the killing of the unfortunate guard she's th-, the principle isn't she 
sm5493: er 
sm5492: but was it a voluntary act if she's it could be almost a reflex if he 
says push him off and she could just immediately do it she's really scared 
nm5491: okay what what is a voluntary act for criminal law purposes 
sm5492: er something done without sort of threats or er if it's involuntary i 
don't know 
[laughter] 
nm5491: what's a voluntary act 
sm5495: maybe something she would have initiated by herself 
nm5491: what do mean by initiated 
sm5495: no i mean like maybe she wouldn't have to be told to push him off the 
door she'd just do it 
nm5491: well er for basic criminal liability a voluntary act means no more than 
willed muscular movement so if her brain responded to Albert's command and she 
pushed him off as long as her brain was saying open the door and push the guard 
off that would be a voluntary act er once you've got voluntary action at that 
very basic level of course there is the possibility of the defence of duress 
which we will mo-, look at later in the course and duress can arise where 
somebody acts but only because they themselves are under threat er but that 
wasn't the case here was it er she's definitely acting voluntarily she's 
associated herself with Albert she's made her own decision to abide by his er 
command and open the door throw off the guard okay let's have a quick look at 
the time we're doing alright er so unlawful and dangerous act i i think we've 
probably covered that we don't want to linger too long on it Celia would be 
guilty for that if she's found guilty of murder wouldn't she 
sm5496: yep
nm5491: yeah er almost certainly the unlawful act would be an assault i suppose 
on the guard and the er the the very modest requirement dangerousness such as 
all reasonable and sober persons would recognise that it would involve some 
risk of harm not necessarily serious harm would be easily satisfied if you are 
trying to knock somebody off the side of a moving car good okay so we've got 
two principle crimes who are we going to look at as an accomplice and to which 
offences who do we pick 'Sophie' who would you go for as our first accomplice 
sm5499: er Bill
nm5491: Bill in relation to the burglary 
sm5499: yes for showing the plans 
nm5491: okay what would you say about Bill
sm5499: well er he was aware that the burglary was going to be taking place so 
in that sense mm actually taking place so he's the first one 
sm5498: he did phone the police didn't he to warn them 
sm5499: it says that Albert did is that a mistake 
sm5498: that's a mistake 
nm5491: yeah that's a mistake sorry a mistake of mine yeah it's Bill who phoned 
the police yeah it would be rather odd if the burglar phoned the police 
wouldn't it okay so Bill was aware are we sure he was aware 
sm5496: well he drew the plan 
nm5491: he drew the plan but 
sm5493: was he drunk 
nm5491: but was he drunk 
sm5498: this plan did show the position of burglar alarms and security cameras 
so he must have contemplated
sm5499: people don't normally 
sm5498: a burglary attempted
sm5492: he didn't know for sure i mean Albert could have been a burglar alarm 
fitter and just was enquiring for his own records 
sm5499: no but he must have known cause he felt guilty he felt unhappy asked 
for the plan back the next day
nm5491: okay so he felt guilty the next day 
sm5496: besides he phoned the police so he must have some idea there was going 
to be a burglary or something 
nm5491: is it significant though that that feeling of guilt or worry occurred 
the next day 
sm5499: yes 
sm5492: when he's not inebriated 
nm5491: when he's not inebriated perhaps 
sm5495: there's i think if you look at Anderson and Morris because they say 
something about er one of the as part of the common enterprise is not liable so 
i think then he he withdrew it he's like no i think you shouldn't do this and 
to-, tried to tell him to stop and he still didn't and then he went ahead and 
called the police so i mean in a way he was i don't know
nm5491: okay well 
sm5496: i don't think he's done enough to withdraw from it because er he's not 
made it very clear to Albert he's not said i am withdrawing i don't want 
anything to do with this 
sm5492: he to him 
sm5496: no he didn't he said i want the map back he didn't say i知 withdrawing 
from this and er in Backker or whatever however you pronounce it Rosscule Lord 
Justice said you have to actually say i知 withdrawing i don't want anything to 
do with this make it clear in the in ti-, in time and so if he's not done that 
i'd have thought he's still an accomplice 
sm5499: had he gone to the police would that have made any difference 
sm5496: no because you've got to communicate to the other people in the plan 
that you are withdrawing 
sm5493: and that 
nm5491: er just on that point er although that aren't any authorities on this 
in England authorities from the rest of the common world Australia New Zealand 
America seem to suggest that there are sort of parallel ways of effectively 
withdrawing and going to the police even if you don't tell your colleagues in 
the plan what is happening going to the police and giving them full them 
details and indicating a sort of clear intention that the police will frustrate 
the plan is good enough to withdraw and that sort of makes sense doesn't it 
because er the criminal law is all about incentives and deterrents and once a 
criminal plan has been set up i suppose the law of withdrawal should be 
concerned with setting up of incentives to those involved to kill off the plan 
and the most effective way of doing that might well be to alert the police 
rather than simply try and persuade the their colleagues in the plan to 
withdraw let me er just jump in and impose a bit of structure on our 
interesting discussion we've discussed what he did drawing a plan what he must 
have known or what he should have known the factor that he was drunk we 
discussed the fact that he seemed to have a change of heart from the night 
before to the morning after we've discussed the question whether what he did 
might be sufficient to withdraw what we've got to do is look at all these 
issues in a structured way first rule of course is that we never look at a 
defence before we've established the basis for an offence don't look at the 
defence before you've got potential criminal liability withdrawal of course is 
a big issue here but withdrawal is a particular defence to being an accomplice 
so we put that to the side until we've worked out whether Bill has done enough 
positively to become an accomplice in relation to accomplice liability as in 
relation to all other types of criminal liability there are two big questions 
we've got to ask what are those these are very simple questions 
sm5493: what was the question again 
[laughter] 
nm5491: where the crime we're dealing with is a substantial crime like murder 
whether it's an incomplete crime like attempt or whether we're talking about 
accomplice liability we've got to ask ourselves two questions to to decide
sm5493: actus and mens rea 
nm5491: ah very good has he coer itted an actus reus has he done the conduct 
necessary for the crime does he have mens rea so let's break that down for Bill 
first of all the actus rea question what what in Bill's conduct could be 
sufficient for the actus reus of being an accomplice 
sm5493: drawing a plan 
nm5491: drawing the plan yeah it's simple but don't miss it out jus-, just 
follow this sort of schema of doing things yeah drawing the plan is is fine 
it's provided the tools for the job providing information or assisting it's 
clearly established as being enough what about his mens rea 
sm5496: he's aware that Albert plans the robbery and he's encouraging it by 
drawing the plan 
nm5491: okay but is he aware 
sm5493: i think he is 
sm5496: yeah
sm5492: yeah because he called the police
nm5491: we know he's aware next morning he's not reasonably aware that there's 
a risk the burglary might take place the next morning but the the world's 
changed overnight hasn't it 
sm5492: he was drunk and it wasn't definite i mean at that point Albert might 
not have definitely been going to burgle the bank he might just have been in i 
don't know doing empirical research about it and so Bill can hardly be expected 
to know for sure when Albert doesn't necessarily know for sure 
sm5496: yeah but i can't remember the name of the case you said in the lecture 
you er a bloke who sold cutting tools to someone was held to be an accomplice 
because he sold a tool to someone i mean he had a legal right to sell his tool 
to someone but because it was suspected that it might be used for an illegal 
act he was held as an accomplice so if you can do that you can surely hold Bill 
as an accomplice 
nm5491: well good the case is Bainbridge the direction to the jury was did Mr 
Bainbridge know when he sold the cutting equipment that it was going to be used 
for a crime of the type which actually occurred so the jury must in order to 
convict Bainbridge have decided that he did know it was going to be used for a 
crime of the type that actually occurred yeah 
sm5493: how about encouraging 
nm5491: well we don't need to worry about encouraging because he's clearly done 
that the question is whether he had the mens rea er you've got to look at this 
like lawyers er i think before we've seen defence and prosecution arguments i 
think the defence argument might well be that when he drew the plan he wasn't 
thinking he didn't really recognise that it could be used for crime perhaps he 
only that only stuck him the next morning when he'd sobered up it's an argument 
the jury don't have to accept it do they but it it's an argument so the 
question is what does the judge tell the jury about what state of mind he needs 
what do think Phil
sm5498: er as long as he's aware of the type of crime that's going to be 
committed is going to be committed then he should be guilty as an accomplice 
but if he wasn't aware of the type of crime that was going to be committed at 
the time then he shouldn't be 
nm5491: okay if he's aware that a crime's going to be committed and he knows 
the right type that would certainly be enough what if he's not sure er it's 
quite possible isn't it that when he draws the plan he might be saying well i 
am dealing here with someone who's fascinated by security systems or am i 
dealing with a burglar if he thought don't mind either way i'll give a plan to 
a burglar who's going to commit a crime or 
sm5498: indifference does not negate abetting 
nm5491: good yeah it doesn't matter if he's indifferent if he gets nothing out 
of it er would he have sufficient mens rea though if only thought himself a 
chance that the plan could be used for assisting burglary
sm5496: yes if you're reckless to it you would be 
nm5491: huh any cases on that 
sm5496: somewhere
nm5491: somewhere
sm5492: was it Kay and Sutton
nm5491: yes what was that all about 
sm5492: er er where the two defendants had laced er the plaintiff's soft drinks 
with vodka cause they wanted him to go home to spend the night with her and not 
with his wife and they were going to intercept him to make them go back with 
them er but he left before they could and he drove and they were done for he 
was done for driving with exc-, excess alcohol and they were done for procuring 
this offence er and yeah the divisional court said that advertent recklessness 
was sufficient 
nm5491: good yeah and what does advertent recklessness mean 
sm5492: er they had to contemplate his act would or might bring about or assist 
in the commission of the principle offence
nm5491: yep would or might yeah so so here if Bill contemplated that er what he 
did might assist a burglar in committing the crime you know in real life that 
would be enough wouldn't it er or the type of crime issue it's one of these 
funny things i think that if he does contemplate that it might be a crime or 
will be used for crime then he he's almost certainly going to get the right 
crime isn't he er it's not like the cutting equipment in Bainbridge that can be 
used for any burglary anywhere it's pretty site specific good okay er the next 
question then is that if Albert may or may not be liable as an accomplice 
mightn't he if the jury decide that they accept the defence argument that on 
the night that he drew the plan he was inebriated and didn't really see what 
the plan might be used for if they decide that would it make any difference 
that the next morning you know he sobers up wakes up and suddenly thinks oh no 
i drew a plan surely that's going to be used for burglary would it make any 
difference what do think Julie would it make any difference if the next morning 
he suddenly sees the light 
sm5497: possibly 
nm5491: possibly should it make any difference 
sm5497: er don't think so 
nm5491: no could it cha-, i mean if he hasn't coer itted a crime the night 
before or rather hasn't committed the basis for accomplice liability the night 
before could his realisation the next morning alter the position 
sm5496: if he doesn't do anything to change it 
sm5492: er 
sm5493: er 
sm5492: as soon as he was capable of feeling worried about it he did he did 
something about it i don't think just because he's now sober that can then 
change the change the definition of what happened previously don't know 
nm5491: good okay we have a time framing problem here er criminal liability 
doesn't work on a sort of uh assessment of somebody's conduct over time whether 
or not somebody's a good bloke in the long run criminal conduct focuses on 
particular events particular occasions it's a little slice through time isn't 
it so in one incident you've got to show that the elements of criminal 
liability are established and that means the conduct element the actus reus and 
at the moment when the actus reus was there that the actor had the relevant 
mens rea if when he did the action which was assisting he handed over the map 
he didn't have mens rea perhaps because he was drunk then he can't have coer 
itted the basis of cri-, or accomplice liability the night before and that 
can't change you can't supply an element merely because later on he he 
understands or or becomes aware of something which he wasn't aware of at the 
time if i知 driving along and i accidentally ran over somebody go to hospital 
the next and say i'm desperately worried about the person i ran over and the 
doctor says well this persons dead and i say well who was it and names my worst 
enemy and i say woopee i致e killed my worst enemy it doesn't turn me into a 
murderer does it the question of whether i知 a murderer is frozen in time at 
the moment when i was driving when i did the voluntary act that caused the 
death did i have sufficient mens rea to be a murderer if i wasn't nothing can 
change it thereafter so his awareness the next day can't change an innocent 
action the night before into the basis of of criminal liability however is 
there some other route by which he might be liable when the next morning he 
realises that the plan might be used for use in a burglary 
sm5494: is it the fact that he might not have done enough to ensure that the 
burglary didn't take place 
nm5491: okay why should he do enough to ensure the burglary takes place 
sm5494: i don't know ha huh 
sm5494: cause he's i suppose he's got the start of the details hasn't he for 
the crime and to ensure that he isn't er liable as an accomplice he has to make 
sure that he's almost his conduct is sort of taken out of the picture and the 
only way he could do that was to take the details to the police 
nm5491: okay you're sort of asking the question about withdrawal there or 
raising the issues relating to the the the defence of withdrawal but what we've 
suggested is that er we're assuming that he wasn't liable wouldn't be liable as 
an accomplice on the basis of what happened the night before cause he didn't 
have sufficient mens rea so the withdrawal question doesn't arise 
sm5492: wouldn't it then fall into the category of preventing a crime where 
you've got er 
nm5491: could do under DuCross and Lambourne 
sm5492: yeah
nm5491: how would that work 
sm5492: er i dunno he i mean it soun-, even though he doesn't seem liable 
before hand afterwards as Julie said if you didn't do something then it would 
seem that he would be but if that isn't possible then i guess he is in a 
position to do something about it and so he's got a duty to cause he's an 
employee of the bank and he's given away secret information and it's his 
responsibility now no 
nm5491: no no it all sounds fine to me next morning if if we ask well what 
happens next morning he does something does he do enough or not with Julie's 
question whi-, which sounds eminently sensible but we're just trying to get it 
into a legal context if we're asking whether he's done enough we seem to be 
suggesting he's under a duty to act and if he really is under a duty to act you 
can be liable can't you for failing to fulfil a duty it's the law of omissions 
you have to identify a duty to act first of all 
sm5494: does his duty not come because he's an employee 
sm5492: er 
nm5491: okay yeah 
sm5494: as an ordinary person perhaps wouldn't have to because once he's sort 
of er established that he isn't liable then that's up to him and a moral 
judgement whether or not he should do anything about it because he's an em-, a 
bank employee [laughter] an employee of the bank he should actually do 
something 
nm5491: good yes well we've looked at sources end up giving rise to criminal 
liability we've looked at cases like Pitwood the railway crossing keeper why 
was he liable what was the source of his duty to people passing across the 
crossing it was his contract of employment with the railway company so a 
contract of employment can pin you with duties which can end up making you 
criminally liable if you fail to fulfil them so it's possible that could be a 
source of duty depends in a way er there's never been a case quite like this 
has there but er it's quite possible 
sm5495: what if but maybe he thought he'd done enough because he called the 
police and h-, he might have thought maybe they were going to act on it then 
but they just discarded it and said well that's not enough information but 
nm5491: yeah 
sm5495: when you're in a panic and you think you've already done wrong and 
you're trying to right your wrong maybe you're not well composed enough to do 
something 
nm5491: yes good point to some extent two issues come in succession first of 
all was he under a duty the question we're asking then has he done enough to 
fulfil his duty which is the question you're asking just to go back to the 
question of whether he was under a duty yes i-, the duty may arise from his 
contract of employment what was the other thing you mentioned Julie 
sm5492: he was the one that started it he gave the he drew the map in the first 
place 
nm5491: yeah so what doctrine of law might suggest that's a the basis of a duty 
recognised by criminal law remember Miller the case of the tramp 
sm5492: oh yeah when he started a fire and then 
nm5491: yeah 
sm5492: + didn't put it out 
nm5491: that's right started the fire accidentally couldn't be liable for that 
but was liable when he realised the fire was started did nothing to put it out 
bit like this case isn't it 
sm5492: er 
nm5491: Miller woke up and realised he'd set in train a dangerous state of 
affairs House of Lords in Miller said you can be liable for failing to put 
right or failing to avert hazards which you have created and that could be 
applied here to Bill couldn't it so yes i think he could be liable for failing 
to act to prevent the risk he's created but says Julie surely he's done enough 
what do we think well i suppose wh-, i'll cut that short i think under Miller 
we just don't know what's required do we Miller was a bit like DuCross DuCross 
did nothing Miller seems to have done nothing all we can surmise is that if 
Miller had called the fire brigade or had tried to smother the fire with his 
own coat or something like that that might have been enough we just don't know 
er here er you argue that he has done enough Jane /u>
sm5495: beg your pardon
nm5491: you argue that he has done enough in this case 
sm5495: yeah probably he thinks he's done just that because he's tried to ask 
for the plan back and he's not got the plan back then he calls the police he 
believes they've got more power so they can stop it he probably doesn't even 
know where it's going to end he doesn't know whether the police are going to 
act on it and go and find out about it or try to stop the crime from happening 
so he might assume he's done enough already 
nm5491: yeah so it's at least arguable that that'll prevent being liable under 
Miller we don't know we we could certainly pick on things that he hasn't done 
giving the identity of Albert to the police might have helped mightn't it or 
what have you 
sm5492: but if we don't know how much he has to do how's he who hasn't got any 
legal training i mean presumably he's not a lawyer er how's he going to know 
nm5491: he can't can he you're right the law is uncertain in this area although 
even if the law did formulate a principle my guess is would be that it would be 
in general terms it would be something like do what is reasonable something 
like that which would leave a big discretion to the courts to decide what was 
reasonable in a particular case okay so Bill maybe liable we've raised the 
question of withdrawal if he if he may he may be liable as an accomplice what 
can we say about withdrawal as a defence [10.0] nothing any idea
sm5498: er in the case of Rook there was an analogy that er declared intent to 
withdraw from a conspiracy to dynamite a building is not enough if the fuse has 
been set he must have done his best to step on the fuse so he's got to do the 
best to prevent a crime which i guess by not giving the police sufficient 
details he hasn't done his best 
nm5491: he's done some thing
sm5498: he's done something
nm5491: yeah 
sm5498: but he hasn't done as much as he could 
nm5491: yeah 
sm5498: so i guess that isn't enough 
sm5495: he might not know what his best is 
nm5491: yes Rookes is a puzzling case in some ways that particular piece of 
dicta almost suggests that once the plan is rolling all those who are 
responsible for some aspect of the plan have a responsibility to to bring it to 
an end and prevent it turning into a crime and must do what ever they can to 
prevent the crime as a whole if that's right it would probably suggest that 
giving very full details to the police might be sufficient 'cause maybe that's 
the best thing he can do to prevent the crime taking place what's odd though 
about Rook is that er the particular facts of Rook where one of four 
conspirators to commit a murder decided not to turn up on the day the murder 
went ahead without him the court also suggested that the reason why he failed 
is that he didn't give clear notice to his colleagues that he was dropping out 
so the implication seemed to be that if Rook on the day before the murder had 
rang up the other three and said look i知 definitely not going ahead with this 
i知 not taking part you do this you're on your own and i advise you not to do 
it that would be enough to absolve him from liability 
sm5496: and er Bekker one Roskill's quoting from Whitehouse which was a 
commonwealth case and said British law had or should adopt er that case as law 
and he said there there must be timely communication to abandon the common 
purpose between those who would carry on 
nm5491: yes yes do think timely communication would be enough 
sm5496: i don't know it does seem a bit odd i mean if their already in the 
house or something and their burgling or something it seems a bit 
sm5494: i mean he's gone they've gone in to planning a crime anyway it's just 
the fact that they don't actually go through with it that surely means they 
still have a major part in it being especially if it's a murder or something as 
serious as that 
nm5491: yes i mean it's interesting you say a major part of the crime if we 
look at Bakerra Bakerra had actually provided the knife to his colleague Cooper 
who did the stabbing at the outset he it's said he didn't do enough to withdraw 
and he merely said come on lets go and jumped out the window and there seemed 
to be two suggestions that he he would have had to have acted earlier and if if 
he'd allowed the plan to go that far he'd have to almost step in and negative 
his own contribution to the plan which was to supply the knife er so it it's 
all rather odd i mean could Bakerra have gone away a week before the planned 
burglary when he'd already given the knife over he'd said no i知 not going with 
you er would that be timely coer unication 
sm5492: if then by the time 
sm5498: i suppose then he'd have top demand the knife back wouldn't he 
nm5491: well the funny thing is if we followed the quote you gave us about 
stepping on fuse you've lit you'd think he'd have to do more than simply saying 
i知 not part of the plan anymore wouldn't you 
sm5498: yes
nm5491: and in terms of the policy of the law you'd think he should be required 
to negative his own contribution wouldn't you 
sm5493: yeah if there'd already been a house there and their doing a burglary 
and he thinks violence might well be used if someone turns up there's no 
incentive for him to leave and er i mean if he did leave then maybe the other 
one would give up as well but then he'd think i mean if he knows the law in and 
out then he's gonna know oh well it's too late now so i might as well stay and
nm5491: yes
sm5492: do the murder
nm5491: yes 
sm5492: cause he's gonna be liable anyway 
nm5491: yes it is a worry isn't it that if we if we say okay you've you've 
passed the point of no return you are now going to be a criminal 
sm5492: so what the hell 
sm5496: but they're not gonna know that are they probably not gonna he's 
probably gonna think well i didn't kill him so i can't be liable 
sm5492: i know but just cause they don't know it's still a weird fact isn't it 
nm5491: yes right okay so we're coming to an end aren't we but withdrawal is 
eminently arguable because the cases don't give us a firm basis for principle 
do they just looking at some of the other issues in the case er i think it 
Celia's liability in relation to burglary er that's very much a Maxwell 
situation isn't it the question is really she knew she was going to help a 
crime did what to crime she had in mind if yes she would be liable as an 
accomplice under Maxwell if for some reason or other she had absolutely no idea 
it was a bank robbery maybe she would be liable when she parked in the street 
fifty yards away form the bank then she maybe she got closer a closer idea of 
what the crime was of course as well as driving Albert to the bank it was also 
an act of assistance to be there waiting to pick him up wasn't it if you're a 
burglar in a bank it's a great comfort to you to there's a get away car outside 
so she was a continuing assistance so even if she didn't know the details or 
sufficient details earlier on she saw him go into the bank she would then 
surely know it was a bank burglary and that could be good enough to make her 
liable in relation to the killing the question whether Albert's liable will 
depend on his state of mind won't it er if the principal crime is manslaughter 
by an unlawful and dangerous act it's very likely the court will conclude that 
when he shouted get him off he contemplated almost exactly what Celia did 
pushing him so if he was Celia to do just this then he will he will be liable 
for the unexpected consequence of death just as she will if he's incited an 
unlawful and dangerous act pushing the guard off then he's liable for that type 
of manslaughter if she's liable for murder because she intended she did this 
therefore grievous bodily harm he could be liable either if that was his 
intention himself or if he contemplated under thesort of Howell and English 
test that when she he she pushed him off she would have been acting with the 
intent to cause death or G-B-H okay well thanks for coming the next seminar is 
after Easter isn't it 
sm5495: we don't have a seminar this week 
nm5491: i don't think we do do we unless i致e missed something do you think we 
do