This assignment will analyse the potential criminal liability of Peter and Leo, who have been charged with murder as accomplices under the Penal Code of Malawi. The analysis will proceed in three parts as requested. Firstly, it will discuss the availability of the defence of duress for both Peter and Leo. Secondly, it will examine the effectiveness of Peter’s attempted withdrawal from the criminal enterprise. Finally, it will evaluate Peter’s level of fault, or mens rea, in comparison to the other parties and consider how this might impact his liability as an accomplice to murder, should his defences fail. The primary legal framework for this analysis will be the Malawian Penal Code, with reference to persuasive common law principles where appropriate.
1. The Defence of Duress
Both Peter and Leo intend to raise the defence of duress, arguing they were compelled to act by Daniel's threat to kill them. In Malawian law, the defence of compulsion, or duress, is governed by Section 16 of the Penal Code. This section states that a person is not criminally responsible for an act if they are "compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily harm if he refuses".
To rely on this defence, several conditions must be met. The threat must be of instant death or grievous bodily harm, and the compulsion must be present throughout the commission of the offence. In this case, Daniel threatened to kill Peter and Leo if they refused to participate. During the robbery, Daniel’s presence could be interpreted as maintaining this threat, making it both immediate and continuous. Leo, in particular, is said to have acted "out of fear for his life", which suggests he felt under immediate compulsion when he committed the fatal act.
However, Section 16 contains a crucial proviso that is likely to be fatal to the defence for both Peter and Leo. The section explicitly states that the defence "shall not apply where the person who does or omits to do the act has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him." The facts state that Peter and Leo are members of Daniel's gang. By voluntarily joining and remaining in a criminal gang, they have entered into an "unlawful association". It is a foreseeable, if not inherent, risk of gang membership that one may be pressured or threatened by leaders or other members to commit crimes. Therefore, the law does not allow them to use threats originating from this association as an excuse for their criminal actions (Kadish, Schulhofer and Steiker, 2007). The policy behind this rule is to prevent individuals from benefiting from a defence that arises from their own choice to associate with criminals.
Furthermore, even if the statutory proviso did not exist, there is a strong common law principle that duress is not a defence to murder. In the English House of Lords case of R v Howe (1987), it was held that the sanctity of human life is such that no one should be excused for taking an innocent life, even if they are acting under compulsion. The court decided that a person in such a situation is expected to sacrifice their own life rather than take another's. While this is an English authority, its reasoning is highly persuasive in common law jurisdictions like Malawi, reflecting a fundamental public policy position. Given that Leo fatally stabbed the homeowner, and Peter is charged as an accomplice to this murder, it is probable that a Malawian court would find the defence of duress to be unavailable for the offence of murder on these policy grounds, in addition to the clear statutory exclusion in Section 16.
Therefore, it is highly improbable that either Peter or Leo will succeed with the defence of duress. Their membership in Daniel's gang places them squarely within the proviso of Section 16 of the Penal Code, which removes the availability of the defence.
2. Peter's Withdrawal from the Enterprise
Peter claims that he withdrew from the criminal enterprise before the murder occurred. For a withdrawal to be legally effective and absolve a secondary party of liability for subsequent crimes, the withdrawal must be both timely and unequivocal. The person must communicate their withdrawal to the other participants and may need to take steps to counteract or nullify the effects of their prior participation (Simester and Sullivan, 2016).
In Peter’s case, his withdrawal has elements of being both unequivocal and timely. He verbally communicates his intention to stop, stating, "I don’t want to do this anymore." This is a clear statement of his change of heart. He then physically removes himself by running away from the scene. This occurs before Leo fatally stabs the homeowner, so it could be considered timely in relation to the murder itself.
However, the effectiveness of the withdrawal is questionable. The leading English case of R v Becerra and Cooper (1975) established that merely running away from the scene of a crime that is already in progress may not be sufficient. The principle is that if a person has already contributed to the commission of the offence, a more active step may be required to neutralise their participation. Peter had already participated in the actus reus of the joint enterprise; he helped to "attack the homeowner" by restraining him, thus enabling Leo to carry out the fatal act. His contribution was already part of the chain of events leading to the victim's death.
Daniel’s response, “Too late—you’re already in,” while legally irrelevant to Peter’s state of mind, reflects the practical reality that the crime was already underway, partly due to Peter's actions. To effect a valid withdrawal at this stage, Peter would likely have had to do more than just leave. For example, he could have tried to physically stop Leo, assist the homeowner, or immediately contact the police. As seen in cases like R v O'Flaherty (2004), where a defendant has put events in motion, they may have a duty to take positive steps to prevent the crime's completion. Peter did none of these things. He simply abandoned the scene, leaving the victim at the mercy of Daniel and Leo.
Because Peter's prior actions facilitated the final attack and he took no steps to prevent the crime he helped to start, his withdrawal is unlikely to be considered effective in law. His participation up to that point is sufficient to connect him to the subsequent actions of his accomplice, Leo. Therefore, his defence of withdrawal will probably fail.
3. Peter's Mens Rea and Liability as a Secondary Party
If Peter's defences of duress and withdrawal fail, the court must consider his liability as an accomplice under Section 21(b) and (c) of the Penal Code. This requires an evaluation of his mens rea (state of mind) at the time of the offence, particularly in comparison to Daniel and Leo.
A secondary party (or accomplice) is one who aids, abets, counsels, or procures the commission of an offence. For a conviction of murder as a secondary party, the prosecution must prove that the accomplice had the necessary mens rea. The law in this area has been subject to significant development. The traditional common law position, before the case of R v Jogee (2016) in the UK, was that an accomplice could be liable for murder if they participated in a criminal venture and foresaw that a co-conspirator might intentionally kill or cause grievous bodily harm (GBH) during that venture.
Applying this foresight test, Peter could be found liable for murder. He was part of a violent gang robbery, and Daniel's instruction to "make sure he doesn’t call the police" is menacingly ambiguous. It is arguable that Peter would have foreseen the possibility that his accomplices might use lethal violence to achieve that aim.
However, the UK Supreme Court in R v Jogee corrected what it saw as a "wrong turn" in the law, holding that foresight is not sufficient for accomplice liability for murder; it is merely evidence of intent. The correct test, according to Jogee, is whether the secondary party intended to assist or encourage the principal offender to commit the crime, sharing the principal's murderous intent (i.e., intent to kill or cause GBH).
If Malawian courts were to adopt the reasoning in Jogee, Peter's position would be much stronger. His actions—hesitating to stab the victim, verbally renouncing the plan, and running away—are strong evidence that he did not intend for the homeowner to be killed or suffer GBH. He may have intended to participate in a robbery and an assault, but his conduct demonstrates a clear lack of murderous intent. Under this test, he would not have the necessary mens rea for murder. His liability would more appropriately be for a lesser offence, such as manslaughter or assault.
Comparing the parties, Daniel, as the leader, clearly has the mens rea for murder, having orchestrated the event and given the order. Leo, who committed the stabbing, performed the actus reus of murder and, assuming he intended to kill or cause GBH, also has the required mens rea. Peter's state of mind is demonstrably different. He actively resisted the progression from assault to murder. Therefore, his level of culpability is significantly lower. His conviction for murder would depend entirely on which test for accomplice liability—foresight or intent—is applied. While the foresight test would likely secure a murder conviction, the modern intent-based approach would lead to the more just outcome of a conviction for a lesser offence, reflecting his actual level of fault.
References
- Kadish, S., Schulhofer, S. and Steiker, C. (2007) Criminal Law and Its Processes: Cases and Materials. 8th ed. New York: Aspen Publishers.
- Malawi. (1930) Penal Code, Chapter 7:01 of the Laws of Malawi.
- R v Becerra and Cooper (1975) 62 Cr App R 212.
- R v Howe [1987] AC 417.
- R v Jogee [2016] UKSC 8.
- R v O'Flaherty [2004] EWCA Crim 526, [2004] 2 Cr App R 20.
- Simester, A. and Sullivan, G. (2016) Criminal Law: Theory and Doctrine. 6th ed. Oxford: Hart Publishing.
