May you introduce the proceeding of the swearing of the new Justice of the UKSC?

Thanks!

The majority view means in effect that a person can be guilty of their own attempted murder i.e. of their attempted suicide via JCE despite the fact that there is no offence of attemtping to kill oneself anymore under English law – something which is overlooked when the judgment refers to the old common law.

So if the defendant tried to shoot himself he would not be committing an offence and arguably there would be no room for the application of transferred malice, either, if he hits a third person, because he has no mens rea for murder in the first place. Why he should become liable because someone else shoots at him is illogical. I think the real reason for the majority view can be found in para 61 and paras 68 – 69: public policy.

Note, however, that the German Federal Court of Justice in 1956 decided in a somewhat similar case (BGHSt 11, 268)that a person can be guilty of their own attempted murder. The case may be interesting from a comparative perspective – but note also that the German law does not generally support the doctrine of transferred malice:

P1, P2 and P3 had formed a gang that had been burgling houses and businesses for some time. They were each of them always armed with guns and had the standing agreement that they would shoot on anyone trying to follow and arrest them; they realised that they might kill somebody in the process and accepted this risk if only they could avoid detection (dolus eventualis – conditional intent). One night they tried to break into the house of V through a window; V awoke and shut the window in their face shouting at them, whereupon they fled. P1 heard steps behind him and saw a person running towards him, who he thought was V following him. In fact, it was P2. According to their agreement, P1 fired at the pursuer but did only cause damage to the clothes of P2. For P1 this was an irrelevant mistake of identity, and the BGH argued that because of the agreement to shoot at anyone following them, P3 was also bound by the conditional intent as to a possibly lethal result. For him, consequently, the same argument applied, because the basic intention of P1 to kill could be attributed to P3 by way of the agreement, and for both of them, the identity of the victim was irrelevant for a charge of attempted murder. However, the BGH also found P2 guilty of the attempted murder of himself, despite the fact that German law at that time did not provide for the criminalisation of harm to oneself, such as suicide. Had P2 tried to kill himself, he would not have committed a crime. The BGH treated the acts of P1 as an impossible attempt vis-à-vis the liability of P2, and to such a – generally punishable – attempt P2 could be a party under § 25(2) of the German Criminal Code, because for him, too, the identity of the victim was legally irrelevant. As long as the actions of one principal were within the scope of acts generally foreseen in the common agreement – shooting at pursuers – any mistake or error of one of them that was irrelevant to him would be irrelevant to the others.

For more details and a critique of the decision see my Principles of German Criminal Law, Hart, 2009, p. 166 f.