It no longer matters who pulled the trigger!

This series of articles on criminal law was inspired by several incidents in the UK, including occupational accidents, which resulted in criminal convictions. Historically this was rare; accidents are – as the word implies – accidental. The metamorphosis of the criminal law seems, however, to be an increasing trend.

Historically, because of workers’ compensation, there have not even been civil cases – let alone criminal cases – on accidents at work. This led us to look at the criminal justice system in some detail, and a disturbing picture emerged.

In the UK, as pointed out in previous articles, cases are coming to light where persons have been found guilty of crimes – even murder – when it was not even clear that a crime had taken place. On the other hand, as pointed out in the previous edition, virtually everyone who goes to jail in the US gets there without a trial. Put another way, the US criminal justice system has a virtually 100% conviction rate. If the authorities want you to go to jail, that’s where you will go – thanks to the plea-bargaining system.

Having started this study, it is becoming clear that concern is growing worldwide about the criminal justice systems. This is evident in a recent and unprecedented US criminal case involving a mother who was convicted of a criminal offence because of a murder her son committed.

How do we decide if something is a crime?

Before looking at this case we will say something about crimes and the legal process. Firstly, let’s pose what may seem to be a simple question: How do we decide if something is a crime? There is, in fact, no answer to that question: no-one has ever worked out an acceptable theory that can be applied to determine if something is a crime.

The way things have worked is thus to know and understand what actions already exist as crimes. Murder is a crime today because it was a crime yesterday… and the day before, and so on. The principle of legality holds that the courts cannot create new crimes. Historically, the law did not work through definitions but via descriptions. Murder was described as the taking of a human life with malice and aforethought.

Now the process

What must one do to be a murderer? To be a murderer you must have factually taken someone else’s life. This is not a definition but a description of what happened. What do we mean by taking someone’s life? That is easy: if someone dies of a bullet wound, for example, the person who pulled the trigger is guilty of the murder.

This was explained by one of the clearest legal and influential thinkers in history, Sir Francis Bacon, who said: “To the cause of causes there is no end so we must content ourselves with the proximate cause.” The cause of the death can, in other words, go no further than the person who pulled the trigger; we cannot go down the route of infinite causes.

The next important issue in the process is the “game of telegraph”, of which most people are aware. A teacher once lined up a few male pupils and whispered in the ear of the first one: “Dear Sir, can I have a drink of water?” He told the student to whisper the phrase in the ear of the next student, who was to pass the message along the line. The message ended up as: “Dear Sir, can I go out with your daughter?” 

The Romans were aware of this problem in law and never recognised the doctrine of precedent. The only thing that mattered was the law; they set out the law in fixed actions. This was taken over by the English as the Writ system. Where there was no writ, there was no remedy. The Writs were fixed and so, for over 2,000 years, the game of telegraph could not run its course. But that context is long gone.

What has happened in modern law?

Let’s take a simple example: a robber shoots and kills a police officer. The robber is guilty of murder – he pulled the trigger. But what happens when the robber aims at a police officer, misses, and kills an innocent bystander? Well, the robber still pulled the trigger and still intended to kill, so he is still guilty of murder. So far so good.

What happens if the police officer returns fire, but misses the robber and kills a bystander? In this case, the robber did not pull the trigger to kill the bystander. According to Bacon there should be no debate: the robber is not guilty of murder. In developing the law, however, the courts came to a different conclusion. The robber in this scenario was found to be guilty of murder.

We then had a case where a group of burglars split into two teams, going into a building via two different routes. The police were tipped off and were waiting. A shot rang out and one burglar was killed. There were no witnesses. According to the police officer who shot and killed the burglar, he was forced to do so in self-defence. That is fine, but by now the “law” had really developed, so the remaining burglars were charged with the murder of their fellow burglar, who was in fact killed by the police officer.

In many circumstances it is no longer clear who is the murderer. It is no longer necessarily whoever pulled the trigger. As a matter of interest, in a recent UK Supreme Court case, the court formally rejected Bacon’s view, preferring to accept the Greek rational approach. A person in England can now be found guilty of a crime even if they did not pull the trigger (so to speak) as long as the court can rationally link the death and the accused.

The Crumbley case

As we have pointed out, historically the law is what it was yesterday: we do not make the law – we apply it. This particular law goes back probably around 6,000 years: the parents of a child can never be guilty of the crime committed by their children. According to Ezekiel 18: “The one who sins is the one who will die. The father will not die for the son’s sin. The child will not share the guilt of the parent, nor will the parent share the guilt of the child.” 

Bearing this in mind, let’s turn our attention to the Crumbley case, which involved an infamous US school shooting. As is well known, these have become politicised. Ethan, the son, shot and killed four fellow students. He pleaded guilty. His mother, Jennifer, was then also found guilty in the case of manslaughter. This is the first time in western history a judgement like this has been passed. As one juror put it: “The thing that really hammered it home was that she [the mother] was the last adult to handle the gun.”

Note how far we have come from Bacon’s proximate cause. It is no longer whoever pulled the trigger, but some other meaningless rational connection. The father, who was subsequently tried separately, was also found guilty; it seems the cause being the last adult to handle the gun no longer applied. The mother and father were sentenced to 10 to 15 years imprisonment.

If the law is abandoned, replaced by some rational connection, anyone can be guilty of any crime committed by others… where do the connections end? Within such a context, it is unsurprising that the criminal justice system is of so much increasing concern!