Art and part liability

In Criminal Law, the principle of art and part liability is a form of derivative criminal liability. Consider and explain how criminal liability might be established on an art and part basis. In addition, consider how an individual may be held liable for the unintended consequences of a course of criminal conduct, and how such an individual might defend any such allegations.

Art and part liability is a form of derivative criminal liability meaning: "where two or more people engage together in committing a crime, each actor is equally guilty of the whole crime irrespective of the particular role played by each individual". 1 A typical example of art and part liability is a bank robbery. For example, a gang perform the physical act of the crime: the actus reus; the robbing of the bank, with one man sitting in the getaway car. All men are guilty of the crime.

If one member inside the bank panics and kills someone, the getaway driver is as guilty of murder as the killer and all the gang members involved. There are, however, defences available to reduce the extent of criminal liability, for example, if the accused was unaware that the killer had a weapon and made no prior agreement or planning for the carrying or use of the weapon, then he would not be responsible for the murder, there would be no art and part liability for this charge if he did not commit the crime.

However, the onus would be on the getaway driver to prove he was unaware in the planning that the killer was going to be in possession of a weapon with intent to use it. This example of art and part liability briefly outlines the law on it; however, I will examine the full extent of the law in more detail later. In order for criminal liability on an art and part basis to be proved and a criminal conviction made, the court must be persuaded beyond a reasonable doubt of the guilt of the accused by the evidence presented by the Crown, and in light of any countervailing evidence led by the defence.

The guilt of the accused is dependant upon the Crown proving that the accused had the necessary actus reus: the criminal conduct; the physical act of the crime, and the mens rea for the crime charged: the mental state of the accused to commit the crime which is usually some form of intent. The requirement of causation must also be met: the accused's act must be proved to have brought about the criminal results, the basic rule is that the accused's actions should be the operating and substantial cause.

Finally, there must be corroboration: this is the requirement of two independent items of evidence and is commonly found in a combination of witness testimony and circumstantial evidence. In Scots law, an individual who is not directly engaged in the conduct that constitutes the actus reus of the crime can still be held liable for the actions of others. This can be seen in the doctrine of art and part liability. An individual may become art and part guilty of a crime as a result of personal conduct, however, his criminal liability is dependant upon the actions of another person.

The justification of this derivative liability is that the person involved art and part tends to assist or participate in the commission of the crime. 2 However, one must be all complicit in the acts, 'guilt by association' is insufficient, and to establish art and part guilt, the basic requirement is that the persons must be acting towards some form of 'common purpose' which can be shown through either: actual knowledge or anticipation, or voluntary or intentional assistance in the commission of the crime.

Common purpose may be premeditated or spontaneous: it may be evidenced by an agreement or by people appearing to act according to a common plan. If a common purpose or plan cannot be established then the principle of art and part guilt falls. Common purpose can be established in the following ways: i) The court examines evidence against each individual accused to determine whether that individual was acting in concert with others in the group.

ii) The individual acted in concert with others, then that individual will be responsible for all the actions of the group in pursuit of that common purpose. iii) If no concert is proved each is only responsible for their own specific acts. In Scotland there are three ways in which one may be "art and part" of a crime: (1) by counsel or instigation; (2) by supplying materials for the commission of the crime and (3) by assisting at the time of the actual commission of the crime. In cases of agreement, guilt exists because of that agreement.