102 They also embrace common law jurisdictions such as England and Wales, 287 Canada, 288 the United States, 289 Australia 290 and Zambia. 291 offence, whether by aiding or abetting, is party to it. Furthermore, any person who offers gifts, makes promises, gives orders or abuses his position of authority or power to instigate a criminal act or gives instructions for its commission is equally party to it.” (unofficial translation)). In addition to responsibility for crimes committed by more persons, the Court of Cassation has envisaged criminal responsibility for acts committed by an accomplice going beyond the criminal plan. In this connection the Court has distinguished between crimes bearing no relationship to the crime envisaged (e.g. a person hands a gun to an accomplice in the context of a hold-up, but the accomplice uses the gun to kill one of his relatives), and crimes where the conduct bears some relationship to the planned crime (e.g. theft is carried out in the form of robbery). In the former category of cases French case law does not hold the person concerned responsible, while in the latter it does, under certain conditions (as held in a judgement of 31 December 1947, Bulletin des arrêts criminels de la Cour de Cassation 1947, no. 270, the accomplice “devait prévoir toutes les qualifications dont le fait était susceptible, toutes les circonstances dont il pouvait être accompagné” (”should expect to be charged on all counts that the law allows for and all consequences that might result from the crime” (unofficial translation)). See also the decision of 19 June 1984, Bulletin, ibid., 1984, no. 231. 286 The principles of common purpose are delineated, in substance, in the following provisions of the Codice Penale: “Article 110: Pena per coloro che concorrono nel reato.- Quando più persone concorrono nel medesimo reato, ciascuna di esse soggiace alla pena per questo stabilità, salve le disposizioni degli articoli seguenti.” (“Penalties for those who take part in a crime.- Where multiple persons participate in the same crime, each of them is liable to the penalty established for that crime, subject to the provisions of the following Articles.” (unofficial translation)); and “Article 116: Reato diverso da quello voluto da taluno dei concorrenti.- Qualora il reato commesso sia diverso da quello voluto da taluno dei concorrenti, anche questi ne risponde, se l’evento e conseguenza della sua azione od omissione.” (“Crimes other than that intended by some of the participants.- Where the crime committed is different from that intended by one of the participants, he too shall answer for that crime if the event is a consequence of his act or omission.” (unofficial translation)). It should be noted that Italian courts have increasingly interpreted Article 116 as providing for criminal responsibility in cases of foreseeability. See in particular the judgement of the Constitutional Court of 13 May 1965, no. 42, Archivio Penale 1965, part II, pp. 430 ff. In some cases courts require so-called abstract foreseeability (prevedibilità astratta) (see e.g., instance, Court of Cassation, 3 March 1978, Cassazione penale, 1980, pp. 45 ff; Court of Cassation, 4 March 1988, Cassazione penale, 1990, pp. 35 ff); others require concrete (or specific) foreseeability (prevedibilità concreta) (see e.g., Court of Cassation, 11 October 1985, Rivista penale, 1986, p. 421; and Court of Cassation, 18 February 1998, Rivista penale, 1988, p. 1200). 287 See R. v. Hyde ?1991g 1 QB 134; R. v. Anderson; R. v. Morris [1966] 2 QB 110, in which Lord Parker CJ held that “where two persons embark on a joint enterprise, each is liable for the acts done in pursuance of that joint enterprise, than that includes liability for unusual consequences if they arise from the execution of the agreed joint enterprise”. However, liability for such unusual consequences is limited to those offences that the accused foresaw that the principal might commit as a possible incident of the common unlawful enterprise, and further, the accused, with such foresight, must have continued to participate in the enterprise (see Hui ChiMing v. R. [1992] 3 All ER 897 at 910-911). 288 Criminal Code, Section 21(2) reads that where: “two or more persons form an intention to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each one of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.” It should be noted that despite the fact that the section refers to an objective foreseeability requirement, this has been modified by the Supreme Court of Canada which held that: “[i]n those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard” (R. v. Logan [1990] 2 SCR 731 at 735). Hence, a subjective standard is applied in the case of offences such as murder. See also R. v. Rodney [1990] 2 SCR 687. Case No.: -94-1-A 15 July 1999