Principals without distinction
In this short interview Matthew Dyson, Associate Professor of Law, tells us about his recent article 'Principals without distinction'
1. What was the problem that you were looking to address? What was the existing wisdom at the time?
Who is a "participant" in events is already a very difficult area within many areas of law, but especially in criminal law. If A intentionally punches B, that's a crime easily enough. But is it a crime for C, who was holding B to make B an easy target? If so, is it the same crime as A committed? What of where D and E are each punching F and it is not clear which caused the harm? Or it is clear that they both contributed? What if G thinks H will commit a crime, but does not tell anyone?
In short, it can be hard to work out who is the "principal", the person we think "did the crime", but our difficulties don't stop there. Someone is liable not only for what she did and why she did but also for her responsibility and culpability for another’s crimes. If you assist, encourage or bring about another person committing a crime, you can be liable as an accomplice (also known as an accessory, or a "secondary party"). These rules on participation are tricky. For many cases the answers are simple. But those simple answers seem to used by lawyers even when the cases are much more difficult and need more thought. It is even worse before participation is where other ambiguities and difficulties in the criminal law meet, and the result is even more complications.
The seminal case of R v Jogee  UKSC 8;  AC 287 changed the test for what that culpability would be and reinstated part of the earlier rules on what the responsibility would be. The Supreme Court removed something often called "parasitic accessorial liability". This was a rule that had been formalised in 1985. It made it easier to convict a defendant of a second crime after a first. Hence, the second crime was "parasitic" on the first. Imagine you and a partner are committing a robbery, and your partner attacks a security guard. The rule made it easier to convict you of that attack than to convict your partner. In some sense, since you were already committing one crime, you would be liable for any crimes committing by your accomplices, so long as you had foreseen a risk the other crime might possibly happen. That rule had been poorly supported in cases before hand and even less supported by theoretical work before to since to explain why it made a good rule. However, the rule had lasted since 1985 to 2015, and some practitioners and a small number of academics still favour it as an easy way to convict for the most serious crimes. It is sometimes called "joint enterprise" but that has never been a technical legal term, and is best avoided. The Supreme Court avoids that language. It is ambiguous because it could mean two or more co-principals acting together, the normal rules of complicity, or it could mean this extended form of parasitic accessorial liability. Some of the values those proponents had for parasitic accessorial liability were at odds with other principles within the legal system. Two other legal systems chose not to follow Jogee, and the reasons they gave for doing so did not seem to make sense with other rules in their own systems, or with what the English understood about criminal law.
2. What was your argument?
Participation in criminal offences has too many uncertainties, many of which are ignored rather than solved by modern law. Recent cases in complicity (Jogee; Ruddock in the UKSC, Miller in the High Court of Australia and Chan Kam Shing in the Hong Kong Court of Final Appeal) have diverged on whether, and if so, how, to draw traditional distinctions affecting principalship and complicity. Three possible distinctions are particularly important:
(1) between a principal offender and an accomplice;
(2) between individual crimes: whether it should be substantively easier to convict parties to further crimes beyond a first?
(3) between fault elements, most importantly, intention, foresight of a risk, and the role of future conditions.
Our view on those distinctions in turn ties into wider principles across the criminal law. For a coherent criminal law, we must understand not only each distinction, and how they stack together, but how lawyers have disagreed, and continue to disagree, about them.
3. How did you make your argument?
The article explored each distinction and showed how legal reasoning about them had developed, and why the modern position was problematic. It showed the underlying connections and interactions in the law: why all these distinctions have or have not been made over time. Well-intentioned and talented lawyers have been engaging with these three issues for hundreds of years but the current debate has become unhelpfully polarised. In particular, the article explored the distinction between principals and accessories, why we draw it, when we have ignored it and what its consequences are. History and logic show that by drawing that distinction poorly we risk collapsing the second and third distinctions, between a further offence from a first, and between our fault elements. That is, we too easily make principals without distinction and the law collapses. The article sought to explain how some of the problems in the law developed, and how they could be corrected.
4. Why is this research important? How might it change the thinking in the field? What do you think are/will be the consequences of this research and its impact? What further questions need to be addressed?
Scholars and courts have been misunderstanding the rules, and the pressure points of difficulty in them, for decades if not centuries. The issues are still live in many legal systems. What makes a law "good" is complicated, and this article tried to unpack some of the connections across the law, and the values in our reasoning, as well as the legal theory and case law. The aim was to help scholars open new lines of argument, some of which involve addressing problems that had hitherto been missed or ignored. But it sought to do so without treading the same well-worn paths that had beset the field, and seemingly had led to some very entrenched positions. It also did not want to simply argue against a particular position in law, but push down into why some of those positions were being held. Some of those positions were surprising, perhaps even incoherent, with other positions the same legal actors held elsewhere in the criminal law. Uncovering such values is also a transferable benefit to other points of difficulty elsewhere in criminal law.
There is clearly a great deal more work to do on foundation elements of criminal law, particularly fault standards. The article touched on some of these and offered some solutions. The best known of those ambiguities relate to fault. This is a more complicated area than many lawyers want to admit. We hid a lot of the problems by using members of the public to decide whether fault was present. We simply ask a jury, or a lay magistrate something like, "Are you sure the defendant intended X", without giving a definition of "intention". It is even less clear on other questions of fault, like "belief", "knowledge" or similar. And there are very very many crimes in English law where you can be convicted even though you were not at fault about some part of the offence, like not realising that you might cause anything more than a trifling injury. Criminal Lawyers must address these problems. the article put forward one approach for one particular problem: conditional intention. When you do not normally intend a result, or conduct, but you do if other conditions are met. This idea is often used by prosecutors to try to convict. As soon as they can show a defendant foresaw a risk of something and carried on. They can be tempted to argue that the defendant intended that risk, because he carried on. That can be more appealing where the conduct is at the edges of criminality, and the risk is of something clearly criminal. The article pushed back and showed reasons why we often foresee risks to conduct, carry on, but do not in any sense intend the risks to come about.