At trial, the judge had failed to make clear to the jury that the conviction of the appellant on a charge of murder depended on whether there was satisfactory proof of having acted in concert with others.
Held: Lord Moncrieff commented on an illustration which the trial judge had given to the jury in the course of his charge, saying: ‘It is true that if people acting in concert have reason to expect that a lethal weapon will be used – and their expectation may be demonstrated by various circumstances, as, for example, if they themselves have carried arms or if they know that arms and lethal weapons are being carried by their associates – they may then under the law with regard to concert each one of them become guilty of murder if the weapon is used with fatal results by one of them. In view of their assumed expectation that it might be used, and of their having joined together in an act of violence apt to be completed by its use, they will be assumed in law to have authorised the use of the fatal weapon, and so to have incurred personal responsibility for using it. If, on the other hand, they had no reason to expect that any one among them would resort to any such act of violence, the mere fact that they were associated in minor violence would not be conclusive against them; and the lethal act, as being unexpected, will not be ascribed to a joint purpose so as to make others than the principal actor responsible for the act’. This distinction had the support of many authorities. Secondary responsibility for a criminal act arises only in cases of reasonable expectation. Commenting on the circumstances of the case: ‘But in this case the weapon which was used was a hatchet which was the property of the appellant and which must have been present visibly in the room; and it seems to me that in these circumstances either of the assailants must have ascribed to him a common expectation that in the stress of the event the other might snatch up anything which was handy and which was adapted to achieve the joint purpose’.
Judges:
Lord Moncrieff
Citations:
1945 J C 89
Jurisdiction:
Scotland
Cited by:
Cited – McKenna v Her Majesty’s Advocate ScHC 30-Dec-1999
The appellant was charged with murder. A witness had since died, and he objected to the introduction of his written statement, on the basis that this would infringe his right to a fair trial. The evidence was likely to be decisive.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 06 July 2022; Ref: scu.181204