Watching the distressful video clip of a man being slashed several times by another in Kakamega on suspicion that the latter had stolen a chicken is chilling. Even more chilling could be the fact that a number of persons watched this serious event of lawlessness with indifference. When information finally came out that the suspect had actually died as a result of the injuries, the police arrested not only the perpetrator of the injuries but a number of other persons who watched that incident at the time, including the person whose chicken had been allegedly stolen. The Police indicated that the persons arrested would be charged with murder.
At the point of the arrest and indication of the intention to arraign the persons involved in the court for murder, debates emerged on why the other persons other than the person who inflicted the injuries should be arrested and charged with murder yet they did not engage in the assault. Others tried to support this on the ground that the persons in the vicinity of the assault ought to have prevented the assault. Unsympathetic persons said that the arraignment was unfair as it sought to uphold the rights of the thief over those of the persons protecting their chicken. But the general amazement was a question as to how persons who had not themselves inflicted any injury whatsoever should be charged with any crime, leave alone murder.
In a country where suspected offenders particularly of petty thefts are subjected to mob justice quite often as a social measure prior to arrest and arraignment in court, and without any consequence, the arrest of persons who did not actually assault the suspect was seen as grave injustice. The question then went in usual fashion and quoting a writer out of the context: The law must be an ass! How can a person be considered to have committed an offence for trying to teach an offender a lesson, leave alone for just being a bystander?
It is true that most criminal offences are committed by actually committing a prohibited act such as assault, killing or theft. But offences can also be committed by omission, that is by not doing what the law commands. A public officer may be charged with corruption for failure to comply with the specific tendering procedures under the law. In Kenya, there is a case where a person was convicted of failing to report to the police or other authorities that he was aware that some people were planning the 1982 coup attempt.
It is also possible that a person may be charged with an offence directly committed by another person, in a case where two or more persons agree on a series of actions which result in the commission of an offence. It is called the principle of joint criminal enterprise or common intention. An example often cited in law schools is one where four people planned to rob a shop. They then broke into the shop and found the owner of the shop inside. One of the robbers then clubbed the shop owner severally on the head while another took the goods and money from the shop as a third person stood outside keeping watch. The fourth person, on hearing the commotion and noting the level of violence being meted on the shop owner, dissociated himself from the actions and ran away leaving the other three at the scene to complete the robbery. The shop owner died as a result of the injuries sustained during the robbery.
The four were charged with murder. The fourth suspect who had run away was acquitted for having disengaged from the process by objecting. The other three were each found guilty of murder despite the fact that only one of them had inflicted the injuries using the club. The reasoning of the court was that if two or more persons form a common intention to jointly undertake an unlawful act, and an offence is committed during such undertaking, each of them shall be deemed guilty of the offence.
The other way in which a person can commit an offence without being at the scene of the actual commission could be by assisting the person who has committed the offence to either complete the offence or to prepare for it. The easiest example could be by a person who hires a hitman to kill a third party would be as guilty of the murder as the hitman, should the offence be committed. This is known in law as counselling or procuring another person to commit the crime.
But it is also possible to be responsible for a crime after the unlawful act is committed by another - popularly known as an accessory to a crime after the fact. An example occurred in Kenya in the year 1983 when some money on transit from Mauritius through Jomo Kenyatta International Airport was stolen from an aircraft. One of the accused persons was not involved in the theft from the aircraft but became aware of it after entry into the vehicle in which the cash was being transported. He was given a share of the cash and was arrested after he had taken possession of the money. The court ruled that he was still an accessory after the fact despite not having been party to the theft originally.
But the most contentious case on joint criminal enterprise is a case in England. The case of Derek Bentley was heard in 1953 but remained contentious for half a century until an appeal filed and heard after his death absolved him. Derek Bentley and his friend Christopher Craig had intended to commit burglary. They climbed the roof of a building and were seen and police called to arrest them.
A policeman climbed the same roof to try and get the two to climb down. At that point, Christopher who was then 16 years of age, drew a gun. Derek was heard to have said “Let him have it” as a result of which Christopher fired a shot at the policeman and injured him. The policeman nevertheless caught and restrained Derek. A short while later, Christopher fatally shot another policeman. The two were then charged with the murder of the policeman. The case against Bentley was that he had in using the words “Let him have it”, incited the shooting as a result of which the second police officer was shot dead. This was despite the fact that the period between these was about 15 minutes.
The prosecution case was that Derek Bentley had been part of a common plan to use violence while on a criminal enterprise of burglary. The common enterprise was suggested on the basis that Bentley and Christopher Craig both had knives with them at the time of the fatal shooting. However, at the time of the shooting, Bentley’s weapon had been taken away and he had not attempted to resist or use them.
Bentley was convicted of the murder on the basis that he and Christopher Craig had been engaged in a joint enterprise to commit a crime and that in the knowledge that the latter had a gun, he had incited him to fire at the police with the intent that the gun be used at the police officers.
The two were convicted of the murder but because the actual shooter Christopher Craig was then a minor, he was spared the death penalty and instead detained at the pleasure of her Majesty. Bentley on the other hand was sentenced to death by hanging. He was hanged in 1953. The irony and objections that this case attracted was the appearance of injustice at the fact that the person who actually took the shot that caused the death survived the sentence while the person who merely spoke out words which could have been interpreted in an innocent manner suffered harsher punishment.
It needs to be said that this case remained contentious and was reviewed by the Court of Appeal in United Kingdom in 1998. The court held that the conviction of Bentley had been unsafe and quashed the conviction albeit posthumously.
The Principle remains however, that it is possible to be charged with and held culpable for a crime without actually committing the physical actions that lead to the crime. Put simply, it is possible to be guilty of a crime by remote control.
Sekou Owino is Head of Legal, Nation Media Group