Conspiracy, Complicity, and the Scope of Contemplated Crime

Kimberly Kessler Ferzan

One of the leading casebooks for the first-year Criminal Law course begins the mens rea discussion with Regina v. Cunningham.1 Cunningham, in need of money, decided to rip the gas meter off the residential gas pipe in his soon-to-be basement to steal the shillings inside. That Cunningham was guilty of theft was uncontroversial. The problem was that Cunningham did not turn off the gas, and it seeped into the adjacent home, partially asphyxiating the neighbor, Sarah Wade.

Although the case is technically about the interpretation of the word “maliciously” in the Offences against the Person Act, the lesson students are to draw from it is broader: each crime should stand on its own culpability. The criminality inherent in being a thief is not the criminality inherent in practically poisoning the neighbor. Instead, Cunningham needed to have been culpable as to the possibility of poisoning her. Specifically, Cunningham had to be reckless as to the risk of endangering life. The jury was not so instructed—reversible error.

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