Criminal law, complicity and homicide
Submitting Institution
University of Central LancashireUnit of Assessment
LawSummary Impact Type
LegalResearch Subject Area(s)
Law and Legal Studies: Law, Other Law and Legal Studies
Summary of the impact
This research has made a sustained and continuing impact on the
development and application of the substantive criminal law, including mens
rea and general defences, and especially in the areas of complicity
and homicide, in terms of
i) development of the law by the appellate courts;
ii) application of the law by practitioners; and
iii) government policy as to the reform of the law of murder and
complicity.
Underpinning research
Richard Taylor has been researching and writing about substantive
criminal law for most of his career. Since the start of the qualifying
period in 1993 to date, he has been employed as a Professor at the
submitting institution. Throughout that period he has been responsible for
the key relevant sections of the annual edition of Blackstone's Criminal
Practice (BCP), which has involved him in analysing, commenting on and
attempting to make sense of a wide variety of new developments in case law
and legislation, including as recent examples the Corporate Manslaughter
and Corporate Homicide Act 2007 and the Coroners and Justice Act 2009.
Chapters of BCP written by Taylor have been regularly cited, quoted and
adopted by appellate courts in developing and modifying existing legal
principles.
Taylor was also joint author of a number of well received books on
criminal justice legislation within the period (there were also two prior
to 1993) including the CJPO 1994, the CPIA 1996, the CDA 1998 and the CJA
2003. These books involved detailed research into the background and
context of the legislation, as well as the Parliamentary debates; they
also presented critical and evaluative comment and analysis which was
amongst the first resources available to those having to come to grips
with the legislation. This practical and doctrinal work has been
complemented by more theoretical work in the field of homicide and
complicity, on which Taylor has published a number of articles which have
had influence on the development of law and policy.
The impact achieved is the result of a combination of the different types
of output referred to above: to the most significant of these, references
are given in the next section. But it will be appreciated that the process
is a complex one, which Taylor has already reflected upon in his prize
winning conference paper, Complicity, Legal Scholarship and the Law of
Unintended Consequences, delivered at the 2008 SLS conference on the
Impact of Legal Scholarship (published version listed in REF2). This paper
aims to analyse both the purposive and the serendipitous aspects of the
relationship between legal scholarship and "impact", and to suggest
approaches which scholars (or indeed anyone interested in law reform or in
the coherent application or development of the law) may wish to consider
adopting in the light of the analysis presented. This article also clearly
demonstrates the link between Taylor's theoretical research outputs,e.g.
in the Criminal Law Review, and the outputs in Blackstone which are more
commonly used by practitioners.
The key research insights or findings relate to,
inter alia,
- the correct approach to the thorny logical issues concerning jury
unanimity in homicide verdicts;
- questions as to the ability to convict an accessory when the principal
offender may have a personal defence;
- questions as to when or whether an accessory to murder can be
convicted of manslaughter (rather than acquitted altogether) when he
contemplates the principal's act but not his murderous intent;
- questions about the meaning of intention to encourage or assist in
accessory liability generally; and
- questions about the coherence of the Law Commission's proposals for
murder, and the cogency or otherwise of the Law Commission's proposals
for reform of the law of complicity, both generally and in relation to
murder, and whether they would be feasible in the absence of reform of
the law of homicide more generally.
References to the research
i) Blackstone's Criminal Practice, annual edition (in particular his
Chapters A2 (Mens Rea), A3 (Defences) and A4 (Complicity- NB A4 was
A5 until 2011) and B1 (Homicide)
ii) Blackstone's Guide to the Crime and Disorder Act 1998 Leng, Taylor
and Wasik, Blackstone Press 2008
iii) Blackstone's Guide to the Criminal Justice Act 2003, Taylor, Leng
and Wasik, OUP 2004
iv) Jury Unanimity in Homicide 2001 Crim LR 283 -300
v) The Nature of Partial Defences and the Coherence of (Second Degree)
Murder 2007 Crim LR 345 -359
vi) Procuring, Causation, Innocent Agency and the Law Commission 2008
Crim LR 32 -49 (listed in REF 2)
As indicators of quality, the publications i) and ii) were submitted to
the 2001 RAE where the submission gained overall 4 out of 5. The current
general editors of item i) are Professor David Ormerod, (the current Law
Commissioner for Criminal Law) and Sir Anthony Hooper (until recently a
Lord Justice of Appeal). Item iii), as with previous Blackstone's Guides,
has been repeatedly cited in journal articles in the Criminal Law Review
and elsewhere, and was favourably reviewed at 2005 International Journal
of Evidence and Proof 148-153 by Professor Paul Roberts, who opened his
review as follows:
"Many readers will already be familiar with Blackstones Guides to new
legislation, now published by OUP, but retaining the old Blackstone Press
imprint. Criminal practitioners and law lecturers alike have over the
course of almost two decades been greatly assisted in finding their way
around recently enacted legislation by these concise and astute
commentaries, which typically appear on the bookshelves with improbable
speed and yet maintain an impressive standard of informational content and
critical analysis.... [I]n the overlapping fields of criminal law,
criminal procedure, and criminal justice, Richard Taylor, Martin Wasik and
Roger Leng are the anchormen of the series. In attempting to make sense of
the labyrinthine text of the Criminal Justice Act 2003 they have taken on
their sternest challenge to date..."
The review ultimately concludes that the book is "a major contribution to
an excellent series".
The articles in Criminal Law Review are published in a journal highly
regarded not only for the academic rigour of the articles published but
also for its impact on practitioners and policy makers. Output v) in 2007
was clearly taken very seriously by Professor Jeremy Horder, the Law
Commissioner primarily responsible for the Homicide Report on which the
output was commenting, as he devoted five pages of his 2012 book to
engaging with its arguments in a detailed but mercifully balanced way.
(Homicide and the Politics of Law Reform (OUP) Ch 3, Section V. "Taylor's
Criticisms of the Final Recommendations", pp. 101 - 106)
Details of the impact
Influence on the courts and on practitioners. Blackstone's
Criminal Practice (BCP) is available in all Crown Courts, and is widely
used and referred to by practitioners and judges both in everyday practice
and in trial courts and in appellate courts creating new law. A Westlaw
search in March 2011 produced over 100 cases where Blackstone was cited in
reported cases since 1993, 29 of these being in the period since 2008.
The most relevant recent evidence of this impact is in R v Gnango
[2011] UKSC 59 (a Supreme Court decision on a complex complicity and
murder problem), where Blackstone was referred to on two separate points
and (Taylor's) Chapter A2.11 designation of transferred malice as being
better expressed as transferred mens rea, referred to approvingly. This is
not put forward as a particularly significant doctrinal issue in itself
but as an example of the way in which BCP is taken seriously right up to
the very highest levels.
A further, more pervasive, example is found in the comprehensive 2010
Revision of the Judicial Studies Board Crown Court Benchbook, which
consistently refers to the relevant parts of Blackstone at the end of each
section (a large number of these references being to Taylor's material) so
that Judges are constantly being referred to BCP for further analysis
where needed to cater for the particular aspects of the case before them.
In the summer of 2010 (Taylor's) Chapter B1 on Homicide covering the
changes to partial defences to murder brought about by the Coroners and
Justice Act 2009 was distributed to judges authorised to try murder at a
judicial college serious crime course, in preparation for the
implementation of the Act as from October 2010. (See Asmelash
[2013] EWCA Crim 157 for a recent example of BCP being cited, in this case
by Lord Judge CJ in interpreting the new partial defence to murder of loss
of control).
This ongoing process of impact on substantial doctrinal issues is also
evidenced through highly significant appellate decisions which have
effectively created new law, and which continue to have impact albeit some
of the decisions themselves were prior to 2008. Such cases are exemplified
by Millward 1994 Crim LR 527 (see REF2 output 2 for more on
development of this principle); Gilmour 2000 2 Cr App R 407 (at p.
414) ; and Bryce [2004] 2 Cr App R 592 (paras 49, 62, 63 and 70).
In each of these, the Court of Appeal adopted very substantial passages
from Taylor's work in Blackstone, in creating principles to deal with
contentious issues in complicity which are still live today, for example
a) where or when an accessory can be liable even though the principal is
acquitted (ongoing impact illustrated by the fact that it is referred to
in a leading text also frequently cited in appellate courts, Smith and
Hogan, as "the rule in Millward");
b) where or when an accessory can or should be liable for manslaughter
where the principal is liable for murder despite divergent mens rea;
(Gilmour)
c) the meaning of intention to encourage or assist in accessory liability
generally. (Bryce)
See, in relation to b), the case of Carpenter 2012 Crim LR 296
for a recent example of the application of the principle first expounded
in Gilmour and further debated by Taylor and Prof Sir John Smith
in 2001 Crim LR at 333-335 and in the commentary to R v Day at
p984. (See also footnote 300 at page 225 of Smith & Hogan's 13th ed
2011.)
Taylor's work, not just in BCP, continues to be relied upon and cited in
practice and in appellate courts post 2008, as is shown not only by Gnango
above but also by cases such as R v T 2009 1 AC 1310 HL relating
to the abolition of doli incapax, where counsel in the House of
Lords referred at p1320 both to "Blackstone's Criminal Practice 2009, para
A3.39" and also at page 1325 to one of Taylor's chapters in "Leng Taylor
and Wasik, Blackstone's Guide to the Crime and Disorder Act 1998 (1998),
pp 55, 60, 61".
Impact on the Murder and Complicity Law Reform Agenda.
This impact is ultimately evidenced within the period in the Ministry of Justice
Consultation Process in 2008 - 2009, leading up to the Coroners and
Justice Act 2009, which was the culmination of the Murder Review Project
referred to the Law Commission by the Government in 2005. Taylor has been
involved in this process throughout in a number of ways, as a result in
particular of his articles on homicide and complicity, (outputs iv), v)
and vi) in part 3 above). Output iv) had already been the main basis of
the contents of Appendix H of the Law Commission's CP on Homicide in the
first stages of the Review in 2005 (see para H3 for express
acknowledgement). Outputs v) and vi) were critiques of the Law Commission
Reports on Murder and Complicity respectively, critiques which led to
constructive email and other discussions with the then Law Commissioner
for Criminal Law (Professor Jeremy Horder) and subsequently to invitations
from the MoJ to participate in and contribute to the stakeholder workshops
in 2008 dealing with complicity and homicide which influenced the final
content of the 2009 Act.
Taylor was sole academic participant in the first by-invitation
stakeholder workshop on complicity and murder prior to the issue of the
MoJ's Consultation Paper in 2008; and along with three other academics
(Professors David Ormerod, Ian Dennis and John Spencer) he participated in
a further stakeholder workshop to consider the published proposals, the
other invitees including representatives of the judiciary, CPS, CCRC, MoJ,
Law Commission and other agencies and stakeholders. The discussions at the
workshops persuaded the MoJ that, given the government's decision not to
progress for the time being with the reforms to the law of murder, an
attempt to reform the law of complicity as applied to murder (in isolation
from reforms to the more general law of complicity) would create more
problems than it would solve. The substantial section in Professor
Horder's 2012 book referred to at the end of section 3 of this case study
is further evidence of the impact of Taylor's work on the thinking of law
reform bodies.
A more recent example of ongoing impact is to be found in the
acknowledgement of Taylor's assistance (alongside that of ten other named
individuals) at para 1.42 of the Law Commission Consultation Paper No 213,
June 2013, Hate Crime: The case for extending the existing offences.
(Taylor first wrote about the existing offences when they were first
introduced in one of the chapters he was responsible for in Blackstone's
Guide to the CDA 1998 -output ii) in section 3 above.)
Sources to corroborate the impact
Documents originally published on Ministry of Justice Website now
available at
http://webarchive.nationalarchives.gov.uk/20100505212400/http://www.justice.gov.uk/consultations
/docs/murder-manslaughter-infanticide-consultation.pdf (Ministry of
Justice, Murder, Manslaughter and Infanticide: Proposals for Reform of the
Law (MoJ CP 19, 2008) (See Annex G)) and
http://webarchive.nationalarchives.gov.uk/20100505212400/http://www.justice.gov.uk/consultations
/docs/murder-review-response.pdf
(Ministry of Justice, Murder, Manslaughter and Infanticide:
Proposals for Reform of the Law. Summary of Responses and Government
Position (MoJ CP (R) 19, 2009) (See Annex B and C)
Law Commission Consultation Paper No 213 (2013) Hate Crime; The case for
extending the existing offences, para 1.42
Law Commission Consultation Paper No 177; (2005) A New Homicide Act for
England And Wales, para H3 et seq
Crown Court Benchbook
http://www.judiciary.gov.uk/Resources/JCO/Documents/Training/benchbook_criminal_2010.pdf
R v T [2009] 1 AC 1310 HL
Gnango [2011] UKSC 59
Smith & Hogan 13th ed 2011, (ed Ormerod, OUP) Ch 8 n4 referring to
the "rule in Millward (1994)", and on other aspects of the current
law of complicity influenced by Taylor see Ch 8 nn 300, 308 and 313 and
text at n149 et seq.
CONTACT 1: HH Judge Peter Rook, a Senior Circuit Judge, Central Criminal
Court. CONTACT 2: Chiara MacCall, Murder Review Team, Criminal Law Policy
Unit (subsequently Criminal Law And Legal Policy Unit), Ministry of
Justice.