The question at hand is to discover the criminal liability of Alan, Titus, Celestine, Shay and Shola. Firstly Alan is part of a joint enterprise which is where two or more people are committed to carrying out a common offence1. Here the joint enterprise is to steal which constitutes an offence under section 5 of the Criminal Attempts Act 19812. This provides that 'if a person agrees with another that a course of conduct shall be pursued, which, if the agreement is carried out in accordance with their intentions will involve the commission of any offence, then he is guilty of a conspiracy'3.
It is the intention of Alan to steal which clearly constitutes a conspiracy which he would be liable for. Next we see that Alan may be liable for burglary. Section 9 of the Theft Act 19684 provides that a person is guilty of burglary if he enters a building as a trespasser with intent to commit an offence5. To establish liability we must look to Brown 19856 and Ryan 19967 where it was established that the defendant must have made an effective entry into the building which Alan has clearly made. This alone is not enough to find liability; it must also be proved Alan entered the building as a trespasser.
A trespasser is someone who enters property belonging to another without their consent8. Here Alan has not been given permission by Glenn to enter his house and so has entered as a trespasser. Finally Alan has entered the building with the intention to steal. This constitutes the mens rea to burglary and as a result Alan would be held liable under section 9(1)a of the Theft Act 19689. Alan may also be liable as a secondary party to murder and rape. A secondary party is someone who helps bring about a crime without being the actual perpetrator10.
To establish liability as a secondary party it must be proved Alan assisted the commission of the offence and following Bainbridge 196011, had knowledge of the type of crime12 and that the crime was one within his contemplation13 this coming from Maxwell 197814. Firstly the murder of Glenn. Alan was present at the time the offence was committed, however gave no assistance he also clearly stated that no weapons or violence was to be used, therefore Alan would not have contemplated this offence taking place, he only contemplated burglary and so could not be held liable for the murder of Glenn.
Next the rape of Kim. It could be argued that the presence of someone could provide encouragement, however in Clarkson 197115 it was held that a defendant would not become a secondary party to rape merely because he watched the attack16 meaning Alan would not be held liable for rape. Finally the murder of Lee. Following the principles above Alan's conduct does not satisfy any of these requirements. Not only was Alan not present to give assistance but he also had no knowledge of the crime and clearly did not contemplate such an offence taking place.
Therefore Alan would not be held liable for the murder of Lee. Titus is also part of the joint enterprise where there is a conspiracy to steal. Under section 5 of the Criminal Attempts Act 198117 Titus would be held liable for a conspiracy to steal. Titus may also be liable for burglary under section 9(1)a of the Theft Act 196818. As with Alan, Titus has made an effective entry into the building as a trespasser with an intention to steal. This would render Titus liable for burglary. Titus may also be liable for the murder of Glenn.
Murder is a common law crime of specific intent with an actus reus of the unlawful killing of a human being19 and a mens rea of an intention to kill or cause grievous bodily harm20. This comes from Woolin 199821. It is clear Titus has committed the actus reus of murder, he has unlawfully killed Glenn. He also possessed the necessary direct intent to kill and did so. As it stands there is no valid defence available to Titus leaving him liable for murder. Titus may also be liable as a secondary party to rape and murder.
To establish liability as a secondary party we must again follow the principles in Bainbridge 196022 and Maxwell 197823. Firstly the rape of Kim. Titus is encouraging Celestine during the rape which it was established in Allan 196524 that words are enough to assist the commission of an offence. Due to this it could be argued that Titus had knowledge of the offence and was therefore one within his contemplation. On the other hand it could be argued that Titus did not contemplate rape taking place as the joint enterprise was burglary.
However it is more likely that Titus would be found liable for abetting rape. Next the murder of Lee. Here Titus gave no assistance and was not present. Titus also did not posses knowledge nor did he contemplate this offence taking place. Therefore Titus would not be held liable as a secondary party to murder. Furthermore involved in the joint enterprise is Celestine who is also part of conspiracy to steal and will therefore be liable for conspiracy under the Criminal Attempts Act 198125. Celestine may also be liable for burglary.
To establish liability it must be proved that Celestine made an effective entry into the building as a trespasser with intent to steal. Celestine has fulfilled each of these requirements which constitute the actus reus and mens rea of burglary leaving Celestine liable for such an offence. Celestine may also be liable for an offence of trespassing with intent to commit a sexual offence contrary to Section 63 of the Sexual Offences Act 200326 which makes it an offence for anyone to intend to commit a sexual offence whilst on premises whereby he is a trespasser27.
It has already been established that Celestine entered a house as a trespasser with intent to commit a sexual offence. Therefore Celestine may also be liable under Section 1 of the Sexual Offences Act 200328 for rape which makes it an offence for a person to intentionally penetrate another without their consent29. Celestine has had sexual intercourse with Kim and although she offered no resistance this would not constitute consent on her behalf. This was decided in Olugboja 198230. Following this Celestine would be liable for rape under Section 1 of the Sexual Offences Act 200331.
Celestine may also be liable as a secondary offender to the murder. In order to establish liability as a secondary party it must be proved following Bainbridge 196032 and Maxwell 197833 that Celestine had knowledge of the type of crime that was committed34 and was one within his contemplation35. It is relatively clear Celestine had no knowledge or contemplation of either murder being committed as it was part of the joint enterprise that no weapons or violence would be used and could therefore not be held liable for either murder.
Another person involved is Shay however he is not directly part of the joint enterprise, he has been approached by Alan who demanded the return of ladders. Due to this Shay may be liable as a secondary offender to a range of offences. He has provided equipment for Alan to use in a burglary and has knowledge of the type of crime which may be committed. Therefore following Bainbridge 196036 Shay could be held liable for aiding burglary. However Shay has simply returned equipment which belongs to Alan and following Lomas 191337 cannot be regarded as a secondary party for this.
However Shay has not returned the equipment of his own accord, he has been approached by Alan who has demanded their return and by returning the equipment has aided burglary. Following Maxwell 197838 Shay also suspects that Alan needs the equipment for a burglary as he is aware of Alan's previous convictions. This constitutes the mens rea for aiding and abetting burglary which Shay would be liable for. Due to this Shay may also be liable as a secondary party to murder and rape. By supplying equipment which allowed Titus and Celestine to enter the house then the murders and rape would not have occurred.
Therefore it could be held that supplying the equipment aided murder and rape. However following Bainbridge 196039 and Maxwell 197840, Shay possessed no knowledge of either crimes and only contemplated burglary. Due to a lack of mens rea Shay would not be held liable as a secondary party to murder or rape. This leaves Shay liable as a secondary offender to burglary. However there may be a defence open to Shay. Shay was approached by Alan who demanded the return of the ladders and if they weren't returned straight away he would seriously injure Shay's daughter.
Shay was threatened with violence unless he returned the ladders and so may be able to plead a defence of duress by threats. This defence was described by Lord Wilberforce in Northern Ireland v Lynch 197541 as an act completed by the victim who knows that he is doing is wrong, but the addition of duress prevents the law from treating his act as a crime42. If this defence is successful then Shay can escape liability43. It was established in Hudson and Taylor 197144 that the threat must be of death or serious injury45.
Here Shay is threatened with serious harm against his daughter. This would be sufficient as Rose LJ stated in Abdul-Husain and Others 199946 that 'imminent peril of death or serious injury to the defendant or someone he has responsibility for47, would suffice. The threat is against Shay's daughter who Shay has responsibility for. It was also decided in Cole 199448 that duress by threats is only available where a specific crime was nominated49. Although Alan did not nominate a crime to commit he demanded the return of equipment which would aid the burglary.
As Shay complied the defence should be allowed. To establish whether this defence would be successful, it must be asked whether the defendant acted the way he did because he reasonably believed the threat to be true, and whether a reasonable person with the same characteristics would have responded in the same way50. In these circumstances duress would more than likely be allowed and be successful as Shay's actions were a direct result of the threats from Alan. This would therefore allow Shay to escape liability as a secondary party for burglary.