Concert / Art and Part Liability (or, “2girls1crime”)

When two or more accused people are named on the same complaint/indictment, they are known as “co-accused”.

Going further than that, it is quite common for two (or more) people to be charged with the same crime, arising from the same set of facts. The allegation here would be that the co-accused were acting in concert, and are therefore equally criminally liable on an art and part basis. In other words, it is possible to be liable for someone else’s actions.

This principle applies to both common law and statutory crimes. For the latter, this is made clear by section 293 of the Criminal Procedure (Scotland) Act 1995.

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Read “enactment” as “statute”. “Contravention of an enactment” = “statutory offence”.

You may have heard the expression “guilt by association” before, but there is no such thing in Scots law. There has to be more than that; namely, proof that each accused had knowledge of what was going on, and assisted in the commission of the crime in some way.

The classic example used to illustrate this principle is that of a bank robbery. The getaway driver, who sits in a car outside the bank while his colleagues go in and do the actual robbing, is equally liable for the bank robbery, even though he may not have threatened anyone or touched any of the money. This is because he was knowingly part of the common criminal purpose, sometimes referred to as the common plan. The level of the getaway driver’s involvement may be relevant in terms of sentencing (it is quite normal for someone to be convicted of an offence and for their lawyer to mitigate it by saying something along the lines of “Ok, but my client didn’t actually do as much as his co-accused did”), but that is a separate question.

McKinnon v HMA (2003 SCCR 224)

Lord Justice-General Cullen: “where a number of persons act together in pursuance of a common criminal purpose, each of them is criminally responsible for a crime which is committed in pursuance of that purpose, regardless of the part which he or she played, provided that the crime is within the scope of that common criminal purpose. This holds good whether the concert is antecedent or spontaneous”

Where there is evidence of a common plan being concocted beforehand (if you’ve played Grand Theft Auto 5, think of the formal pre-heist planning meetings), then it may well be easy to prove exactly who the participants were, and the extent of the common plan to steal/assault/murder what or whomever. Of course, in real life the police / Crown don’t often have that luxury. For example, when two groups of tanked-up guys get into a rammy in a pub, and someone ends up stabbed to death, how do you work out who’s liable?

Let’s go back to the case of McKinnon v HMA, which is currently the leading case on concert.

McKinnon v HMA (2003 SCCR 224)

  • Four co-accused agreed to go to a flat in order to rob the occupants.
  • As part of that plan, one of the four went to his father-in-law’s house and borrowed a set of knives.
  • The co-accused then went to the victims’ flat, broke down the door and attacked the occupants. All of the three occupants were injured, and one of them was so badly injured that he died.
  • There was forensic evidence to the effect that only one of the four co-accused had caused the fatal injury. However, all four co-accused were convicted of the deceased’s murder (along with the assaults on the other two occupants of the flat).
  • On appeal, it was held that the correct approach to take was an objective one. In other words, the reasonable observer would conclude that, because all four co-accused were aware that knives were being taken for the purpose of robbing the victims, they ought to have known that there was an obvious risk of fatal violence.
  • Although the co-accused may not have actually intended to kill anyone, the risk of violence inherent in the common plan was such that you should not try to work out the individual mindset of each accused person when it came to the murder. By entering into the common plan that they did, each co-accused was responsible for a foreseeable consequence of that plan (i.e. murder).
  • The appeals were refused, and the convictions for murder stood.

From the above, we can conclude that cases involving concert should approach the question of mens rea differently. It’s an objective question of knowledge and foreseeability, rather than a subjective question of what my specific intentions were.

Poole v HMA (2009 HCJAC 42)

“The question, following McKinnon and Others v HMA, comes to be whether there was evidence entitling the jury to find that it was objectively foreseeable to the appellant that such violence was liable to be used as carried an obvious risk of life being taken. The question is not…whether there was evidence from which it could be said that the appellant had the mens rea necessary for murder.”

The “common plan” principle means that it doesn’t matter whether your other co-accused would have committed the crime even if you weren’t involved at all.

Am I a murderer if I hire a hitman to do it?

Yes. Instigating a crime (by taking some meaningful role in the planning process) is enough to render you liable on an art-and-part basis. For example, I remember this case going on at Edinburgh High Court while I was a trainee:

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https://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-17535220

In the above case, there was evidence to show that Siddique had hired the hitmen to kill his brother. He was convicted of murder. Presumably, if he had hired them to hurt him, but not kill him, then it would come down to an objective assessment of the facts and circumstances to establish the extent of his liability (applying the principles of McKinnon v HMA).

At this point, it is worth pointing out that you can only be art and part liable for the crime that was actually committed. For example, say that you hire a hitman, but the precise nature of your instructions are lost in translation. Your hitman believes that you only want your victim to be kicked in the shins, rather than killed, so goes ahead and does that. Since no murder was committed, you could not be art and part liable for murder (despite that being your intention).

Providing Assistance

You can be art and part liable for the commission of a crime if you provide assistance to the extent that you are participating in the common plan. For example, if you provide some sort of knowledge, tool or funding that assists bank robbers in carrying out their plan (think Elliott Gould’s character in Ocean’s Eleven), then this antecedent conduct is enough to establish liability. Again, it doesn’t necessarily matter whether the crime would have been carried out whether you provided said knowledge/tool/funding or not.

Common Criminal Purpose

So far, I have mainly covered scenarios in which there was some degree of actual planning. What about the spontaneous pub rammy scenario?

From Lord Justice-General Cullen’s quote towards the top of the page, it doesn’t matter “whether the concert is antecedent or spontaneous”. In other words, you can be art-and-part liable for the commission of a crime if you join in on the spur of the moment. After that, it becomes a question of knowledge, and what is foreseeable in the circumstances.

Limits to Liability

If there is not enough evidence of a common plan or common criminal purpose, then the individual in question is obviously still liable for their own actions, which may constitute a separate or lesser criminal offence.

How can you escape art and part liability?

Withdrawal from the common plan

If there is evidence that you have taken steps to disassociate yourself from the common plan, then that is relevant. However, the leading case on this point suggests that this is quite a difficult test to meet.

MacNeill v HMA (1986 JC 146)

  • The accused, along with five others, had been convicted of importing cannabis into the UK by smuggling it in a fuel tank of a ship. 
  • He claimed that he had left the ship at the first opportunity after the drugs had been loaded, and played no further part.
  • His appeal was refused. Although “evidence of dissociation by a participant in the preparation of a crime or offence in contemplation will be highly relevant in any decision as to whether he can be held to be in concert with those who proceed to commit it”, in this case he had not done so early enough. 

In practice, the best evidence of disassociation would probably involve the reporting of the “offence in contemplation” to the relevant authorities.

Beyond the common plan

As explained above, an accused person will be said to be acting in concert if their co-accused acts in a foreseeable manner, which results in a further/more serious crime being committed. It follows logically, then, that if the co-accused acts in an unforeseeable manner, then the accused is not liable for what that co-accused does.

Hopkinson v HMA (2009 SLT 292)

  • Two accused – a man and a woman – were convicted of murder. The deceased had been stabbed to death during a robbery.
  • The female accused had stabbed the victim, killing him. The male accused had a knife as well, but had given evidence to the effect that he did not know that she was going to use it to stab him. He did not intend to use his knife other than to threaten the victim if he refused to hand over his money. 
  • At trial, the judge did not give the jury directions on the question of whether Hopkinson could have been convicted of culpable homicide, even if they decided that his co-accused was guilty of murder.
  • Hopkinson’s appeal was allowed. It was held that “[t]he jury should have been directed that if it had been proved that the appellant and the co-accused had embarked upon a common criminal purpose to assault and rob the deceased with the use of knives, but that it had not been proved to their satisfaction either that the common criminal purpose had included the taking of human life or had carried with it the foreseeable risk that fatal injury might be inflicted, it would have been necessary for them to consider whether to acquit the appellant of any responsibility for the killing of the deceased, (which was the verdict the appellant sought), or to convict him of culpable homicide.”
  • In other words, the fact that Hopkinson had armed himself with a knife was not the decisive factor. If the common plan was only to rob the deceased, and his co-accused had exceeded that plan, then he would not be liable for the murder. 

Knowledge and Foreseeability

If an accused person either did not know about an earlier attack, or could not have foreseen that an attack would end up being much more serious than they anticipated, they would not be art and part liable for the more serious consequences.

Codona v HMA (1996 SLT 1100)

  • The accused was a 14 year old girl, who was part of a group who had gone around attacking people whom they thought to be homosexual. 
  • The group had already attacked two people on the same day in a relatively minor fashion. An attack on a third person became much more violent, and the victim died as a result of repeated blows to the head and neck.
  • The extent of her attack on the deceased was to kick him on the back of the legs, once, at an early stage of the attack. She was convicted of his murder on an art and part basis.
  • Her appeal was allowedIt was held that, given the relatively minor nature of the earlier assaults, the fatal nature of the third would not be foreseeable to her. 

 

Kabalu v HMA (1999 SCCR 348)

  • The accused had kicked the deceased once or twice to the head, after he had already been the victim of an assault that turned out to be fatal. He had not been aware of the prior assault.
  • In the circumstances, as his own assault on the deceased would not have been fatal on its own, there was not enough evidence of a common criminal purpose with those who had killed the deceased. Therefore, the accused’s conviction for murder was quashed, and substituted with a conviction for assault. 

In cases involving spontaneous conduct that results in the death of the victim, it is always important to remember the alternative verdict of culpable homicide. You can be art and part liable for actions causing death, without necessarily being liable for murder. In these circumstances, it is necessary to consider the particular actions and knowledge of each accused person when it comes to establishing who is liable for what.