Obedience to Law as a Crime

Date01 July 1990
Published date01 July 1990
DOIhttp://doi.org/10.1111/j.1468-2230.1990.tb02827.x
Obedience
to
Law
as
a
Crime
Glanville Williams*
Can one become an accessory in crime by performing one’s legal duty?
Put in that way, the answer is an obvious no, but further thought reveals the snag.
Performance of legal duty is not a wholly reliable defence for a person charged as accessory,
because a court can
so
easily nullify the defence by holding that there is no legal duty
to participate in a crime.
We are faced with two opposing arguments, each of them both powerful and circular,
like two contra-rotating whirlpools. Beware: if you fall into either of them you will at
once lose the power of thought!
(a) The law compels the performance of this duty; therefore doing it cannot involve
the
doer in a crime. Since the act is not a crime, it is
OK
to say that doing it is
indeed the performance of a legal duty.
(b) To do this would involve the doer in a crime; therefore doing it cannot be a legal
duty, even though it may seem to be
so.
Hence it is
OK
to say that the doer in
these circumstances is guilty of a crime.
Both arguments obviously involve begging the question. The logical puzzle can be solved,
and at the same time the honest citizen can be protected, if two assertions as to the law
are accepted.
Proposition
1.
The law imposes no duty to do anything that the doer knows will lead
to a crime, whether he himself will be implicated in the crime or not. This proposition
can be supported by reference to the doctrine
ex
tulpi causa
non
oritur actio,
and as a
rule of public policy. It is, of course, a proposition as to the law of contract, tort and
property, though it has not hitherto been stated in quite such broad terms.
Proposition
2.
Nevertheless, a person who has transferred (or otherwise surrendered)
an article to its owner, or to a person who he believes is or may be the owner or has
or may have a right to it, does not, in general, thereby become an accomplice to a crime
committed with the article by the transferee or some other person, even though the transferor
knew that the crime was intended when he made the transfer. This proposition, one of
the criminal law, is at present supported to some extent by certain decisions, which will
be examined presently. There is an exception where the transferor’s purpose was to assist
the crime, and there must as a matter of policy be a further exception for certain serious
crimes.
The Draft Criminal Code now proposed by the Law Commission’ is on the right track
but is insufficiently thought out. Clause
27(6)
may look very like proposition
2
above,
but there are important differences.
A
person is not guilty of
an
offence as an accessory
by
reason
of
anything
he
does
. . .
(c) because
he
believes that
he
is under
an
obligation
to
do
it and
without
the
purpose of furthering
the
commission
of
the offence.
The differences between this and
my
formulation above are three. First, the subclause
requires the defendant to believe that he is under an obligation to do the act; mine provides
for other possibilities.
Second, the subclause refers to the doing of anything, while my proposition is confined
to the surrender of property.
Third, the subclause, unlike my proposition, contains no exception for serious crimes.
It remains for me to establish the superiority of my draft.
*Jesus College, Cambridge.
1
Law
Corn.
No.
177.
The
Modem
Law
Review
53:4
July 1990 0026-7961
445

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