Abstract
Courts and commentators do not differentiate between defendants who perpetrate crimes by means of inanimate weapons or trained animals and those who perpetrate crimes by means of other human beings used as innocent agents. I argue that this widely accepted comparability is grossly insensitive to the violation of the human dignity of the person whom the perpetrator has turned into an instrument to an offence. Identifying the innocent agent as a possible second victim of the offence alongside the intended victim raises several issues of both morality and law. First, the question of moral pertinence: do the scenarios that the law recognises as cases of innocent agency involve a violation of the dignity of the innocent agent? Second, the question of criminalisation: is it appropriate to invoke criminal law to protect the dignity of the innocent agent? Third, the question of the protected interest: assuming that both the dignity of the innocent agent and their autonomy are compromised, which of these violations is graver? I argue that there is a strong connection between the doctrine of innocent agency and the violation of the dignity of the innocent agent; that the violation of the innocent agent’s dignity is severe enough to warrant criminalisation and that this is simple enough to enforce; and that the injury to the innocent agent’s dignity is more significant than the injury to their autonomy. The operative proposal of this article is that the law should recognise perpetration by means of innocent agents as an aggravated mode of commission or an aggravating factor in punishment.
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Notes
Williams (1961): 349–50.
18 U.S.C. s. 2(b); Model Penal Code s. 2.06(2)(a). Anglo-American jurisdictions are not unified in defining the rationale or the scope of the doctrine (see below, Part 4).
The example is loosely based on R v Michael (1840) 173 ER 867.
R v Stringer (1991) 94 Cr App Rep 13.
Williams (1961): 351.
The severity of the injury is also affected by the severity of the offence that the defendant commits through the innocent agent. I discuss this point below in Part 5.
Regarding the possibility that the violation of the noumenal dignity of the innocent agent will not harm their perceived self-dignity, and the significance of this possibility for the liability of the defendant, see Part 5 below.
Kant (1997 [1785]).
The doctrine of innocent agency prohibits criminals from using others as their means to commit offences, without mentioning that their use must be as means only, as per the Kantian formulation. This might create the false impression that the doctrine will have effect even if the perpetrator had the innocent agent’s interests in mind (say, as a beneficiary of the offence). Imagine that the CEO fed the company book-keeper false data fearing that recording the actual data would result in loss of investments and inevitable wage cuts in the Accounts department. Can it be said that the CEO used the book-keeper solely as a means if he performed that act to defend the book-keeper’s livelihood? The answer is yes. A plausible interpretation of the Kantian imperative would regard every act of deception as one that ignores the dignity of the deceived, whatever the motive for the deception. When the CEO, without checking with the book-keeper that they are, indeed, willing to compromise their professional ethos to avoid a wage cut, decides to provide them with falsified data, he uses them only as a means by which to realise his self-constructed notion of a good deed.
I strive to establish the claim that the use of innocent agents as a means only constitutes an independent basis of wrongdoing. This claim also holds the weaker claim that the use of innocent agents as a means only should count as an aggravated form of perpetration or as a consideration to aggravate the punishment. I discuss these possibilities in Part 4.
Kant’s focus on rational beings as opposed to sentient beings raises a question about the place of minors and the insane as possible foci of violations of human dignity in his theory, and specifically in relation to committing crimes by means of minors under the age of criminal liability and by means of insane persons. I leave this question for another occasion.
Kant (1997 [1785]): 42 [435].
Ibid: 38 [429].
See above, n 12.
A close reading of Groundwork of the Metaphysics of Morals might nullify the difference between the two examples. Kant bases the categorical imperative on his concept of humans as noumenal (that is, abstract and transcendent) beings, in contrast to sentient beings. In this sense, the violation of human dignity is not measured by the subjective feelings of the person whose dignity has been violated and, therefore, there is arguably no difference between the exploitation of the nanny for the murder of the baby in her care and the exploitation of the mother for the murder of her own baby. More generally, Kant considered an action contrary to a person’s dignity as an injury to the dignity of humankind, as opposed to the dignity of that particular person, who remains a rational being and therefore a bearer of dignity even after being used as a mere means. According to this reading of Kant, an injury to a person’s dignity is possible only when their capacity for rational moralising has been taken away from them, for example by means of a severe brain injury. I will expand a little on this question below, in Part 3.
As is typical of English judgments on innocent agency, R v Stringer (above, n 5), on which the example in the text is based, does not mention the violation of the innocent book-keeper’s dignity. However, the violation of the dignity caused by exploiting the innocent agent’s professionalism to commit crimes took centre-stage in John Mortimer’s “Rumpole and the Bubble Reputation”. Here, the famous fictional English barrister was hired by Morry Machin, editor-in-chief of a tabloid newspaper, to defend the paper against a civil libel suit brought by Amelia Nettleship, author of conservative and prudish romance novels, for an article published by the newspaper making insinuations about the author’s own bedroom antics. As the trial proceeded, Rumpole caught on to the reason behind the hiring of his services. It transpires that Morry Machin and Amelia Nettleship were conducting a secret love affair. With the decline in sales of Nettleship’s books, and in view of Machin’s impending dismissal from the newspaper, the two conspired to fraudulently receive funds from the newspaper through an original ruse: Machin would publish the defamatory article under a pseudonym and Nettleship would file a libel suit. Rumpole, the criminal lawyer who prides himself on never pleading guilty or compromising with the prosecution, was hired to attack Nettleship on the witness stand, a strategy that any lawyer who specialises in civil libel trials would know will significantly increase the damages awarded by the jury. An irate Rumpole bursts into the editorial room, confronts Machin with the devastating facts, and adds, with notable indignation: “There’s one thing I shan’t forgive you for … The plan called for an Old Bailey hack, a stranger to the civilized world of libel who wouldn’t settle, an old war-horse who’d attack La Nettleship and inflame the damages. So you used me, Mr Morry Machin!” Mortimer (1988): 31.
R v Cogan and Leak [1976] QB 217 (AC).
At the time of the verdict, to secure an acquittal from rape, it was sufficient under English law to establish that the defendant’s belief regarding the woman’s consent was honest. To adapt the illustration to current law, I assume here that Cogan’s belief was both honest and reasonable.
The classification of Leak’s liability in terms of complicity does not undermine the validity of my argument. The scope of the offences I discuss includes offences that may be classified as procurement or solicitation, but the availability of an alternative basis for convicting the indirect participant other than by the doctrine of innocent agency does not negate the violation of the dignity of the direct participant who is deceived or forced to commit the criminal acts. Arguably, framing the liability of the indirect participant in cases involving innocent direct participants in terms of complicity accentuates the violation of the dignity of those direct participants (I elaborate on this point later in this Part).
To the critics cited in the text, we can add Jonathan Herring, who discusses these three examples—the toxic mother, the fraudulent CEO in R v Stringer (above, n 5), and the abusive husband in R v Cogan and Leak (above, n 20)—and concentrates only on the harm to the intended victims (the dead baby, the defrauded investors, Leak’s wife). Herring (2022): 818.
Jeremy Waldron wrote that the expectation that society will listen to a citizen’s position before a public decision that affects their rights is made sits at the heart of recognising the value of human dignity in the law. See Waldron (2012): 203. According to Kant, however, dignity is an objective concept that deserves protection even if the specific person who is used merely as a means does not feel harmed and does not expect society’s protection. I discuss the difference between the objective violation of dignity and the subjective harm below, in Part 4.
For the legal implications of the violation of the innocent agents’ dignity, see below, Parts 3 and 4.
This criticism can also be directed at judgments that convicted defendants of committing through innocent others the offences of: falsifying documents – R v Mazeau (1840) 173 ER 1006; R v Clifford (1845) 175 ER 84; R v Bull and Schmidt (1845) 1 Cox CC 281; Fraud – R v Butcher (1858) 169 ER 1145; theft – R v Manley (1844) 1 Cox CC 104; and possibly burglary – Child et al. (2022): 235.
As I mentioned above, the judges who decided the case accepted this approach.
As the court put it: “Cogan had had sexual intercourse with [the wife] without her consent. The fact that Cogan was innocent of rape because he believed that she was consenting does not affect the position that she was raped.” See R v Cogan and Leak, above, n 20, 223.
Alldridge (1990): 54–55.
In Germany, see StGB s. 25(1); in Israel, see Penal Law 1977, s. 29(c).
[1995] QB 203.
Ibid, at 213–14.
For a comparison of the various methods of recognising the wrongdoing of using a person as an instrument of crime, see below, Part 4.
Being, as it is, a law of people and not of mosquitoes—see Greenawalt (2000): 788 (“At the deepest level, a sense of the dignity or worth of victims underlies the criminal law. Human beings get protection under human law that is not given to mosquitoes”).
Dan-Cohen (2002): 150–71.
George Fletcher (1993): 1630, 1634–35, proposed a similar approach in his discussion of what became known as the “blackmail paradox”. According to the paradox, the prohibition on blackmail means that, although people have a right to withhold embarrassing information that has come to their knowledge and a right to trade on their rights in general, they are nevertheless prohibited from trading on their right to withhold embarrassing information. Anchoring his analysis in Kant’s moral philosophy, Fletcher proposed to turn the paradox into a paradigm of criminalisation, based on the protection of victims’ dignity against being subordinated to the control of the perpetrator. Fletcher generalised from the protection of the dignity of victims of blackmail to other crimes including the crimes of violence, theft, and embezzlement, and concluded that the protection from being subordinated to the control of others lies at the core of criminal law. Jean Hampton (1991) developed a similar approach in the context of rationalising punishment. According to Hampton, what distinguishes the criminal offence from other sources of injury such as natural disasters is that in committing the crime, the offender claims a superiority over the victim and thereby violates their moral value as a human being. The function of punishment is to symbolically thwart that claim.
Greenawalt (2000): 789.
Hörnle (2012): 308.
For a similar concern, see Duff (2018): 193.
Hörnle (2012): 315–16, 319; Hörnle and Kremnitzer (2011). Hörnle’s legal concept of violation of dignity as severe humiliation is distinctly narrower than Kant’s moral concept of dignity enshrined in his categorical imperative (Hörnle 2012: 311). Gur-Arye traced the concept of violation of dignity as severe humiliation to Beccaria’s treatment of torture (Gur-Arye 2022: 245 n 48).
Hörnle (2012): 309.
The backdrop of the ruling is the general position of German constitutional law, where Article 1 of the Basic Law (Grundgesetz) grants dignity an absolute status: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state Authority.” Grundgesetz s. 1 (translation by the German Federal Ministry of the Interior and Community, https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0019). See also Gur-Arye and Weigend (2011): 69–70.
See above, n 2–3.
See above, n 20.
According to Glanville Williams (1961): 350, “[a]n innocent agent … is a mere machine whose movements are regulated by the offender” (similarly, Fletcher 1978: 666; Child et al. 2022: 233). One type of control is volitional. For example, the perpetrator directs a sleepwalking person toward the victim or forces a person to carry out an attack by threatening his life. Another type of control is epistemological. This type is exemplified by R v Stringer (above, n 5; the CEO who provided the company’s book-keeper with incorrect data in order to make a false entry in the company’s financial records), and by the Oliver Twist character Fagin, who sends minors to commit acts of theft. However, in the recent case of R v Varley (above, n 2), the EWCA relied on a source that conditions the doctrine of innocent agency on causation rather than control. The court did not dwell on the definition of the doctrine, the application of which to the facts of the case was quite straightforward, and did not say whether this should be viewed as a precedent.
See above, n 3.
Ibid.
Gur-Arye (1984): 330–36.
(1983) 76 Cr App R 279.
Kadish (1985): 395.
I discuss these objections with respect to criminalisation because they apply most strongly to this option of expressing the violation of innocent agents’ dignity. If my counter-arguments are convincing in relation to criminalising the violation of human dignity, they will apply to defining perpetration by means of an innocent agent as an aggravated mode of committing an offence or an aggravating factor in sentencing.
In Part 3, I discussed two other controversial aspects of criminalising the violation of innocent agents’ dignity—namely, the possible contradiction between dignity and the autonomy to act according to one’s will (for example, in banning voluntary performance in peep shows) and the reluctance to turn to criminal law when less intrusive legal avenues are available. I argued there that using innocent agents to commit crimes is contrary to both their dignity and their autonomy, and that there is no other legal means to regulate the harm to the innocent agent’s human dignity.
See above, n 20.
See above, n 5.
However, it is noteworthy that conventional versions of the harm principle do not rule out offences of endangerment and liability for attempts. A terrorist who planted a defective bomb and a robber who was caught red-handed on his way to the bank are both indictable. Some prominent versions of the harm principle are also comfortable with criminalisation where the offence is successful and the harm is never discovered by the victim (say, where a burglar steals an object that the victim never misses or looks for).
This does not mean that the degree of mental resilience of the specific victim will be a decisive criterion for criminal liability. A strictly subjective approach of this sort would lead to unequal treatment of defendants who have acted similarly (Hörnle and Kremnitzer 2011: 148).
Kant (1997 [1785]): 42 [435], and see above, Part 1.
See above, n 20.
See above, n 5.
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Eldar, S. Human Dignity and the Innocent Agent. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09708-1
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DOI: https://doi.org/10.1007/s11572-023-09708-1