Do the English and South African Criminal Justice Systems Share a ‘Common Purpose’?
| Date | 01 June 2013 |
| Published date | 01 June 2013 |
| DOI | 10.3366/ajicl.2013.0063 |
| Author | Jacob Turner |
| Pages | 295-300 |
Under English law, a violent protest which results in the participants being killed by police officers could also lead to the prosecution of the other protesters. This requires a two-step exercise. Both elements are ‘legal fictions’. They are devices which the courts have decided to use in order to spread the net of liability wider than natural principles of justice and causation might otherwise dictate, in order to achieve some broader public policy motive.
First, a causal chain must be established between the actions of the miners and the deaths of their colleagues. It is generally the case that actions of a third party will constitute a
See H. L. A. Hart and A. Honoré,
In the Marikana situation the policemen, at least where acting in lawful discharge of their duties, are deemed to be innocent agents who therefore drop out of the causal picture. This is by no means a certain conclusion factually: the NPA must demonstrate that the police actions were purely of self-defence and preservation or in accordance with their legal duties. This may be difficult for the police to prove if it is shown that they used live fire on a crowd armed only with sticks and machetes. If the police actions are found to have been disproportionate then this would probably break the chain of causation.
It then remains to find the relevant murderous intent
Traditionally defined as ‘malice aforethought’ and more recently described as an intent to kill or do grievous bodily harm,
The second element, the ‘common purpose’ doctrine, helps to cast the net wider and encompass all of those who were engaged in the riots. The theory behind this rule is that when two or more persons embark together on a joint criminal course of actions, then each will be liable for further criminal actions of another, so long as these fall within their common design. In this manner members of a violent gang who carry weapons to a brawl may all be liable when one single member strikes a fatal blow.
Common...
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