Do you think William Herbert Wallace was guilty?

[RodCrosby]

Upon further reflection...

The fine legal point appears to be whether Parry was aware that "M" had entered the house with a deadly weapon, in pursuit of a robbery. It seems not, as M probably didn't!

The Police were flummoxed ("how the hell do we pin anything on Parry?") as was Parry himself ("that (the bloodstained glove) would hang me!")

Far better to let a jury decide whether Wallace could have been guilty in a "simpler" scenario. Someone has to answer to this charge. Poor guy....

As an aside, I reckon Parkes' and Atkinson's testimony eventually filtered through the back-channels to the "Establishment", and even to the Court of Appeal. They gave no specific reasons for quashing the verdict against Wallace, but I bet they knew by then [the aforementioned only came forward after Wallace was convicted, remember...]

[RodCrosby]

I know who his daughter is on FB but I think best to leave her in peace, not the 1st daughter, but the 2nd one from his 2nd wife , she is around 70 now.

Thanks for the tip about the 2nd daughter.

Amusingly, I've just discovered that Parry's granddaughter is a successful SOLICITOR....

[AmericanSherlock]

Thanks for the tip about the 2nd daughter.

Amusingly, I've just discovered that Parry's granddaughter is a successful SOLICITOR....

Hmmm now you've piqued my curiosity...

I wonder if his relatives know of his suspected involvement in this case... I remember someone interviewing one of them who did not know and was probably telling the truth because they volunteered he was secretive, the black sheep of the family etc...can remember who...maybe someone Wilkes interviewed.

If my grandfather had been involved in something like that, I think I'd be more curious than angry/upset. We all have unsavory character going back a couple generations I'd surmise and it shouldn't be seen as reflecting poorly on their descendants.

[RodCrosby]

Hmmm now you've piqued my curiosity...

I wonder if his relatives know of his suspected involvement in this case... I remember someone interviewing one of them who did not know and was probably telling the truth because they volunteered he was secretive, the black sheep of the family etc...can remember who...maybe someone Wilkes interviewed.

If my grandfather had been involved in something like that, I think I'd be more curious than angry/upset. We all have unsavory character going back a couple generations I'd surmise and it shouldn't be seen as reflecting poorly on their descendants.

I think that quote was from Parry's daughter's husband, who would be the father of the solicitor - who was only 12 when her grandfather died.

As a genealogist, I would endorse the view that sooner or later one will encounter "illegitimacy, insanity or criminality" in one's family tree. [just look at the Royal Family, for example... ]

However, there is such a thing as natural justice, and it would rankle me if incendiary allegations were made against a dead man who could no longer answer for himself, especially if he was of my own flesh and blood, and perhaps remembered only as a doting father/grandfather.

On the other hand, Roger Wilkes did seem fully intent on confronting Parry and giving him his opportunity to say his piece. The Grim Reaper frustratingly beat him to the call...

[AmericanSherlock]

I think that quote was from Parry's daughter's husband, who would be the father of the solicitor - who was only 12 when her grandfather died.

As a genealogist, I would endorse the view that sooner or later one will encounter "illegitimacy, insanity or criminality" in one's family tree. [just look at the Royal Family, for example... ]

However, there is such a thing as natural justice, and it would rankle me if incendiary allegations were made against a dead man who could no longer answer for himself, especially if he was of my own flesh and blood, and perhaps remembered only as a doting father/grandfather.

On the other hand, Roger Wilkes did seem fully intent on confronting Parry and giving him his opportunity to say his piece. The Grim Reaper frustratingly beat him to the call...

Interesting job Rod, I was very into that for awhile.

I probably would be upset if one asked me about a relative suspected of a severe crime, I just meant in theory it shouldn't reflect poorly on the descendant. But it is definitely a tricky issue.

Yup you're right I remember now. From what I recall Parry was also an arrogant phone operator (insane irony) at a hospital who irritated people due to his manner on the phone. I think this is where Murphy said he interviewed some co workers who said they thought Parry was left handed. Facts of the case suggest a right handed killer, although not conclusive. He was also known at the local bar and helped out there. Probably a bored older man, innocuous seeming. No one would likely have known of his past

[John G]

Upon further reflection...

The fine legal point appears to be whether Parry was aware that "M" had entered the house with a deadly weapon, in pursuit of a robbery. It seems not, as M probably didn't!

The Police were flummoxed ("how the hell do we pin anything on Parry?") as was Parry himself ("that (the bloodstained glove) would hang me!")

Far better to let a jury decide whether Wallace could have been guilty in a "simpler" scenario. Someone has to answer to this charge. Poor guy....

As an aside, I reckon Parkes' and Atkinson's testimony eventually filtered through the back-channels to the "Establishment", and even to the Court of Appeal. They gave no specific reasons for quashing the verdict against Wallace, but I bet they knew by then [the aforementioned only came forward after Wallace was convicted, remember...]

Of course, the salient question is: what was the common law position in 1931?

Thus, in R v Jogee (2016), Lord Hughes and Lord Toulson outlined the basic common law position, which has existed for well over a century:

"In the language of the criminal law a person who assists or encourages another person to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal."

And Section 8 of the Offences Against the Person Act, 1861 provided:

"Whoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender."

However, for the necessary mens rea to be present the question arises as to what exactly was the common purpose. In R v Collison (1831), two men went out to steal apples. They were detected by a watchman, who was subsequently attacked and severely injured by one of the thieves. Garrow B ruled:

"To make the prisoner a principal, the jury must be satisfied that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any person who might endeavour to apprehend them; but if they only had the common purpose of stealing apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal."

The common law position was outlined further by Channel B in R v Turner (1864): "On a charge of murder there must be evidence not only of a common design to commit a felony, but a common design quoad the homicidal act itself."

Therefore, in the scenario that has been presented, Parry could only be convicted of murder, i.e. as a principal, if he specifically conspired with M to kill Julia Wallace.

[ColdCaseJury]

Of course, the salient question is: what was the common law position in 1931?

Thus, in R v Jogee (2016), Lord Hughes and Lord Toulson outlined the basic common law position, which has existed for well over a century:

"In the language of the criminal law a person who assists or encourages another person to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal."

And Section 8 of the Offences Against the Person Act, 1861 provided:

"Whoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender."

However, for the necessary mens rea to be present the question arises as to what exactly was the common purpose. In R v Collison (1831), two men went out to steal apples. They were detected by a watchman, who was subsequently attacked and severely injured by one of the thieves. Garrow B ruled:

"To make the prisoner a principal, the jury must be satisfied that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any person who might endeavour to apprehend them; but if they only had the common purpose of stealing apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal."

The common law position was outlined further by Channel B in R v Turner (1864): "On a charge of murder there must be evidence not only of a common design to commit a felony, but a common design quoad the homicidal act itself."

Therefore, in the scenario that has been presented, Parry could only be convicted of murder, i.e. as a principal, if he specifically conspired with M to kill Julia Wallace.

John, this is really interesting. I guess Parry might not have been so clued up on the law as you are!

Is it your belief that Parry would not have said "This could hang me!" unless he had committed the killing?

[Mayerling]

John, this is really interesting. I guess Parry might not have been so clued up on the law as you are!

Is it your belief that Parry would not have said "This could hang me!" unless he had committed the killing?

Unless somebody is sufficiently well read or trained in the law, they are apt to make mistakes regarding it's exact effects. Like people who break the laws but claim they did not know there was a law they were breaking. The old adage is, "Ignorance of the law is not sufficient as a defense."

One also recalls errors in other trials. The Haigh Case, for example, where Haigh had used acid "baths" to destroy (or seem to destroy) bodies, in a mistaken interpretation of the term "corpus delicti". Similarly his enquiry to a police constable, before he gave his "confession", about what his chances of ending up in Broadmoor were (i.e., did it seem that he could pass for guilty but insane?). Of course, asking the very question undercut the entire idea of his really being mentally ill.

Jeff

[RodCrosby]

Of course, the salient question is: what was the common law position in 1931?

Thus, in R v Jogee (2016), Lord Hughes and Lord Toulson outlined the basic common law position, which has existed for well over a century:

"In the language of the criminal law a person who assists or encourages another person to commit a crime is known as an accessory or secondary party. The actual perpetrator is known as a principal, even if his role may be subordinate to that of others. It is a fundamental principle of the criminal law that the accessory is guilty of the same offence as the principal."

And Section 8 of the Offences Against the Person Act, 1861 provided:

"Whoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender."

However, for the necessary mens rea to be present the question arises as to what exactly was the common purpose. In R v Collison (1831), two men went out to steal apples. They were detected by a watchman, who was subsequently attacked and severely injured by one of the thieves. Garrow B ruled:

"To make the prisoner a principal, the jury must be satisfied that, when he and his companion went out with a common illegal purpose of committing the felony of stealing apples, they also entertained the common guilty purpose of resisting to death, or with extreme violence, any person who might endeavour to apprehend them; but if they only had the common purpose of stealing apples, and the violence of the prisoner's companion was merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert, the prisoner will be entitled to an acquittal."

The common law position was outlined further by Channel B in R v Turner (1864): "On a charge of murder there must be evidence not only of a common design to commit a felony, but a common design quoad the homicidal act itself."

Therefore, in the scenario that has been presented, Parry could only be convicted of murder, i.e. as a principal, if he specifically conspired with M to kill Julia Wallace.

Yes, but, this all seems to refer to liability as "principal." There is also secondary liability.

"The Law on Join Enterprise
Guidance issued by the Crown Prosecution Service (CPS) in 2012 – which is now being revised in light of the recent Supreme Court ruling on joint enterprise (see below) - described three main types of joint enterprise:
1. Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals.
2. Where D assists or encourages P to commit a single crime.
3. Where P and D participate together in one crime (crime A) and in the course of it P commits a second crime (crime B) which D had foreseen he might commit

The second and third of the above categories concern the assignment of secondary or “accessorial” liability for a criminal offence.
Cases involving an accessory accused of assisting or encouraging a principal defendant (category 2) are often described in terms of “general accessorial liability”. Where the principal’s commission of a second offence arose out of an original joint offence (category 3), this is commonly denoted “parasitic accessorial liability” (henceforth PAL). The origins of PAL lie in the 1985 case of Chan Wing-Siu v. R. [1985] 1 AC 168. At the heart of PAL was the principle that defendants’ liability could rest on their foresight of a possible collateral offence committed by their co-defendant. In recent years, this principle was roundly criticised for permitting defendants to be convicted of offences in relation to which they had no intent and no intent to assist or encourage, and in the commission of which they were not involved."

http://www.icpr.org.uk/media/42690/joint_enterprise___cl_j.pdf

And

'Their lordships commented in R v Jogee and Ruddock v The Queen [2016] UKSC 8 [2016] UKPC 7 (at 87):

“The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent. The long-standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose.”'

http://www.colletonchambers.co.uk/latest-news/back-to-the-past-supreme-court-reverses-the-law-on-accessory-liability/

So, my take from this is that post-1985, the law took a wrong turn, in that mere foresight was deemed automatically conclusive in establishing secondary liability. This approach was overturned in 2016.

However, in 1931, I believe secondary liability could still be established, if evidence of foresight was deemed persuasive by the jury.

Of course, if Parry was unaware that a deadly weapon had been carried into the house [because, in fact, it probably wasn't] it would be, for practical purposes, impossible to establish his foresight.
There is also a technical problem in that I don't believe secondary liability can be established without first establishing guilt of the principal.

So, it was virtually impossible for the Police to establish any case against Parry in 1931. The knew he wasn't the killer[alibis], they had no trace of a principal[absent Parry confessing all], and even if they had a principal, Parry's secondary liability to murder wouldn't stick[the murder weapon probably originated in the house, so the question of Parry's foresight is too remote.]

Parry was not a lawyer though. Even if he had been, the circumstance in which he found himself on the night of 20th January were so incriminating that he could be forgiven for feeling Pierrepoint's rope tickling his neck. What if the Police had decided Parry had stopped off and killed Julia around 8.25pm? [they were quite flexible about what time the murder occurred, remember.] And you disposed of the bar and glove, Gordon!
"Come on lad, just sign here... "

[John G]

Yes, but, this all seems to refer to liability as "principal." There is also secondary liability.

"The Law on Join Enterprise
Guidance issued by the Crown Prosecution Service (CPS) in 2012 – which is now being revised in light of the recent Supreme Court ruling on joint enterprise (see below) - described three main types of joint enterprise:
1. Where two or more people join in committing a single crime, in circumstances where they are, in effect, all joint principals.
2. Where D assists or encourages P to commit a single crime.
3. Where P and D participate together in one crime (crime A) and in the course of it P commits a second crime (crime B) which D had foreseen he might commit

The second and third of the above categories concern the assignment of secondary or “accessorial” liability for a criminal offence.
Cases involving an accessory accused of assisting or encouraging a principal defendant (category 2) are often described in terms of “general accessorial liability”. Where the principal’s commission of a second offence arose out of an original joint offence (category 3), this is commonly denoted “parasitic accessorial liability” (henceforth PAL). The origins of PAL lie in the 1985 case of Chan Wing-Siu v. R. [1985] 1 AC 168. At the heart of PAL was the principle that defendants’ liability could rest on their foresight of a possible collateral offence committed by their co-defendant. In recent years, this principle was roundly criticised for permitting defendants to be convicted of offences in relation to which they had no intent and no intent to assist or encourage, and in the commission of which they were not involved."

http://www.icpr.org.uk/media/42690/joint_enterprise___cl_j.pdf

And

'Their lordships commented in R v Jogee and Ruddock v The Queen [2016] UKSC 8 [2016] UKPC 7 (at 87):

“The error was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent. The long-standing pre Chan Wing-Siu practice of inferring intent to assist from a common criminal purpose which includes the further crime, if the occasion for it were to arise, was always a legitimate one; what was illegitimate was to treat foresight as an inevitable yardstick of common purpose.”'

http://www.colletonchambers.co.uk/latest-news/back-to-the-past-supreme-court-reverses-the-law-on-accessory-liability/

So, my take from this is that post-1985, the law took a wrong turn, in that mere foresight was deemed automatically conclusive in establishing secondary liability. This approach was overturned in 2016.

However, in 1931, I believe secondary liability could still be established, if evidence of foresight was deemed persuasive by the jury.

Of course, if Parry was unaware that a deadly weapon had been carried into the house [because, in fact, it probably wasn't] it would be, for practical purposes, impossible to establish his foresight.
There is also a technical problem in that I don't believe secondary liability can be established without first establishing guilt of the principal.

So, it was virtually impossible for the Police to establish any case against Parry in 1931. The knew he wasn't the killer[alibis], they had no trace of a principal[absent Parry confessing all], and even if they had a principal, Parry's secondary liability to murder wouldn't stick[the murder weapon probably originated in the house, so the question of Parry's foresight is too remote.]

Parry was not a lawyer though. Even if he had been, the circumstance in which he found himself on the night of 20th January were so incriminating that he could be forgiven for feeling Pierrepoint's rope tickling his neck. What if the Police had decided Parry had stopped off and killed Julia around 8.25pm? [they were quite flexible about what time the murder occurred, remember.] And you disposed of the bar and glove, Gordon!
"Come on lad, just sign here... "

The law took a "wrong turn" in Chan Wing-Sui (1985), which was disapproved by the Supreme Court in R v Jogee (2016). This restored the common law to its pre 1985 position, i.e. that mens rea for murder, rather than mere foresight, was required. Thus, Lords Hughes and Toulson (with whom the other members of the Court agreed) observed:

"Wesley Smith was not the only authority inconsistent with the Chan Wing-Sui principle. We have referred to other authorities from Collison to Reid, which were not cited in Chan Wing-Sui. Reid was cited in Powell and English, although it was not mentioned in any of the judgements, although it was a reserved judgement of a strong Court of Appeal which reiterated that a secondary party could not be convicted of murder unless he had the mens rea for murder." (para 72), the emphasis is mine.

See also Johnson v Youden (1950), where Lord Goddard CJ reiterated the traditional test for determining the mental element: "Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters that constitute that offence."

Also see:http://blogs.ntu.ac.uk/nlsblog/joint-enterprise-update/

[John G]

John, this is really interesting. I guess Parry might not have been so clued up on the law as you are!

Is it your belief that Parry would not have said "This could hang me!" unless he had committed the killing?

Thanks CCJ. I must admit it's over 15 years since I completed my law degree, however, it's strange what I still remember, such as mens rea and actus reus. And the fact that the "B" , as in Garrow B, stands for Baron!

In answer to question, I very much doubt that Parry would have been clued up on the subtleties of legal principles on the 1930s! However, I think it possible that the "this could hang me" statement might have been based on a view that he could, indeed, have been executed as an accessory. Of course, that's assuming that he made the statement in the first place!

[RodCrosby]

The law took a "wrong turn" in Chan Wing-Sui (1985), which was disapproved by the Supreme Court in R v Jogee (2016). This restored the common law to its pre 1985 position, i.e. that mens rea for murder, rather than mere foresight, was required. Thus, Lords Hughes and Toulson (with whom the other members of the Court agreed) observed:

"Wesley Smith was not the only authority inconsistent with the Chan Wing-Sui principle. We have referred to other authorities from Collison to Reid, which were not cited in Chan Wing-Sui. Reid was cited in Powell and English, although it was not mentioned in any of the judgements, although it was a reserved judgement of a strong Court of Appeal which reiterated that a secondary party could not be convicted of murder unless he had the mens rea for murder." (para 72), the emphasis is mine.

See also Johnson v Youden (1950), where Lord Goddard CJ reiterated the traditional test for determining the mental element: "Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters that constitute that offence."

Also see:http://blogs.ntu.ac.uk/nlsblog/joint-enterprise-update/

Thanks for that. IANAL, although the Law interests me greatly [I have successfully conducted some civil cases of my own, in court].

I'm still having difficulty reconciling your analysis with the quote from Jogee from Colleton Chambers, given above.

For the sake of argument, assume Parry did have clear foresight, and that the bar was in fact carried into the house by M [maybe even supplied by Parry]. If Parry couldn't be charged with murder, what about manslaughter then?

[AmericanSherlock]

Id still like someone to explain to me, why Julia was putting out the fire with her back to the assailant, with no signs of a struggle or defensive wounds. That does not mesh with a robbery gone wrong and a frenzied attack.

[RodCrosby]

Id still like someone to explain to me, why Julia was putting out the fire with her back to the assailant, with no signs of a struggle or defensive wounds. That does not mesh with a robbery gone wrong and a frenzied attack.

It's not gospel, but a theory. I think it was admitted in court as such, with other scenarios declared impossible to rule out.

My theory - again just a theory - was Julia had the mac over her arm, and was flung across the room, landing partially on the fire.

Then beaten, pulled away from the fire, rolled over and beaten again.

[John G]

Thanks for that. IANAL, although the Law interests me greatly [I have successfully conducted some civil cases of my own, in court].

I'm still having difficulty reconciling your analysis with the quote from Jogee from Colleton Chambers, given above.

For the sake of argument, assume Parry did have clear foresight, and that the bar was in fact carried into the house by M [maybe even supplied by Parry]. If Parry couldn't be charged with murder, what about manslaughter then?

I'll give a more detailed reply when I've got more time. However, I think the answer to your question has to be: Yes. Essentially, it would depend on what was deemed to be within the "scope of the agreement". For murder, the intent has to be to either kill or cause serious harm; for manslaughter , to cause harm but not necessarily serious harm. Therefore, if there was no such tacit or express agreement, what did P think that M was going to do with the iron bar?