An individual could be held liable for the unintended consequences of a course of criminal conduct if the conduct goes unforeseeably outwith the common plan or purpose. In H. M Advocate v Welsh and McLachlan4, two men were alleged to have broken into a house where one of them (it was not known which) had killed the owner. There was no evidence of a common plan between the accused to use violence, and the violence was both sudden and unexpected. Lord Young charged the jury that each accused could only be held culpable for his own actions, and since it was not known who had killed the victim, both accused were acquitted of homicide.
He made the significant point that an unexpected attack need not be foreseeable to anyone other than the actual assailant. Thus, if the reason for the killing in the bank robbery example had been that the assistant was having an affair with the killer's wife, the homicide would then be unrelated to the planned crime and there would be no art and part guilt for the death. This case concludes that any violence used should have been a foreseeable consequence of the common purpose.
However, it is the unexpectedness of the violence that is the case is based on (in relation to that which is agreed on) rather than the unexpectedness of the end result which determines liability. It is inferred that the person who knows that weapons are being carried is responsible for any use that might be made of them. Therefore it is possible that an individual could be held liable for the unintended consequences of criminal conduct, for example in Boyne v H. M. Advocate5 Lord-Justice Clerk Wheatley gave an example of an accused who, as a member of a gang, was involved in an attack on a victim.
He sees another member of the gang unexpectedly take out a knife and deliver a fatal blow. If the accused then carried on with the attack on the victim that would constitute art and part guilt of murder. McKinnon v H. M. Advocate6 is another authoritative Scottish case which shows how an individual can be held liable for the unintended consequences of a course of criminal conduct if the conduct goes unforeseeably outwith the common plan or purpose. The plan in this case was robbery but the result was murder.
Five accused stood trial on a charge of murder and two charges of assault. Four of them had discussed committing a robbery, and obtained knives. When they went to the door of the deceased one of them stabbed him in the chest, which proved fatal. It was held that the accused was guilty art and part of murder as he associated himself with a common criminal purpose which included the taking of human life, even though the murder was committed by someone else. The case relied on Hume's test of objectivity (as opposed to the subjective test which was applied originally in Brown v H.
M. Advocate7) and depended on what the accused should have objectively foreseen in relation to his co-accused. There was antecedence; meaning the common purpose was conceived before they left their house and the assailants all took weapons of a murderous nature which made it clear that murder could be foreseeable. Thus, they were all found guilty of murder art and part. Ergo, in the circumstances, it cannot reasonably be a defence to claim that one did not know that the other might use the weapon to kill if they all carried murderous weapons.
The defences available to a person involved in an art and part criminal offence depend on the persons actions at the time. If a person involved in the criminal conduct has not anticipated, planned or taken part in circumstances that were unforeseen to happen and decides to remove himself from the criminal activities, he is likely to receive a lesser conviction or sentence than his co-accused, and the fact that actions were unforeseeable can be used as a defence, as evidenced in the case of Walker and Raiker v H. M.
Advocate8 On the appeal of a case where two men had been convicted of murdering a man in a club by one stabbing him with a knife it was held that there was no evidence that W knew or saw that R had a knife although he had been kicking the deceased. W had his appeal allowed and conviction of assault substituted for murder art and part. The essential authority in this case is the question posed by Lord Justice-Clerk Wheatley: Did the accused know, or should he have known, that the use of a weapon was involved in the planned crime? Was it within the scope of the common purpose?
If the use of a weapon by one accused is sudden and unexpected, liability for the consequences of its use will not be imposed on a co-accused. 9 These points were re-iterated from the case of Docherty v H. M. Advocate by Lord Moncrieff. 10 It can be concluded, therefore that an individual can be held liable for the unintended consequences of a course of criminal conduct if the conduct goes unforeseeably outwith the common plan or purpose, as seen in McKinnon. However, evidence of following a common purpose or plan is required as, if one cannot be found then art and part guilt can not be established.
Finally, to the defence of an accused having been involved in criminal conduct, if he did not anticipate, plan or take part in unforeseen actions and decides to remove himself from the criminal activities, the courts will take a lighter hand than his co-accused, as seen in Walker and Raiker, and he may be acquitted.
Case Law H. M Advocate v Welsh and McLachlan (1897) 5 S. L. T. 137. Boyne v H. M. Advocate (1980) S. L. T. 56. McKinnon v H. M. Advocate (2003) S. L. T. 281. Brown v H. M. Advocate (1993) S. C. C. 382.