R v Becerra and Cooper

Facts

Becerra and Cooper took part in a burglary of a house. The householder was disturbed and Cooper stabbed and killed him. A knife was available to the participants and was used by Cooper. Becerra had been part of the enterprise, and before the fatal stabbing he said that they should go and left the house by a window.

History

Both defendants were convicted of murder at trial. Becerra appealed to the Court of Appeal, relying on his withdrawal from the enterprise before the killing.

Issue

What a participant in a joint criminal enterprise must do to withdraw from it so as to escape liability for an offence committed by another participant after the withdrawal.

Held

Appeal dismissed. Becerra had not effectively withdrawn, since his words and departure did not amount to a timely communication of withdrawal, and it was in any case too late, because the violence was already imminent.

Ratio

• To escape liability for a further offence committed by a participant in a joint enterprise, a person must effectively withdraw. The minimum is a timely and unequivocal communication of his withdrawal to the other participants, and mere departure from the scene is not enough where the offence is underway or about to begin.

The judgments

Key reasoning

• A participant in a joint enterprise remains liable for what the others do within its scope unless he makes clear that he is no longer taking part.
• Mere repentance or flight does not suffice, because it gives the others no notice that the basis of their joint plan has changed.
• The timing matters: withdrawal must be communicated at a point where the others could still desist, and not when the fatal act is already in progress.

Where it fits in the module

In the Complicity topic the case fixes the requirements of withdrawal. It is used to test what can be required of a person who wants to leave a crime in progress, and whether the law should demand more than communication, such as reasonable steps to prevent the offence. It should be read with later authority including Mitchell [1999] and Rook [1993] on the effect of an intention to withdraw not communicated to the others.

Criticisms

• The rule puts the burden on the person who wants to leave to give a clear warning, which may be dangerous or impractical when the offence is already unfolding.
• The law requires communication but does not say how effective the withdrawal has to be, and later cases have been inconsistent about whether a person must also try to prevent the offence.
• The reasoning treats the matter as a continuation of liability but does not explain whether withdrawal operates as a defence or as a failure to prove the requisite link between the secondary party and the final act.