The Getaway Driver Who Heard a Scream
David asks his friend Eoin to drive him to a warehouse on the industrial estate at 2am. David says he is 'collecting a debt from a lad who owes me'. Eoin knows David has two convictions for assault and sees David put a crowbar into a holdall. Eoin waits in the driver's seat with the engine running. David enters through an unlocked side door. Inside, he finds a night watchman, demands the safe code, and hits him twice with the crowbar, causing a fractured skull. David takes €2,000 from the safe. Eoin hears a shout and a thud. He drives around the block, then returns to the warehouse because David had earlier said, 'If you ever leave me, I'll put you in hospital.' David runs out and jumps in. Eoin drives him home. Eoin says he did not know David would hurt anyone and only drove because he was frightened. The watchman is in a critical condition.
1. On what basis, if any, can Eoin be liable for David's offences?
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Eoin can be liable as an accessory under s.7 of the Criminal Law Act 1997, which makes a person who aids, abets, counsels or procures an offence liable to be tried and punished as a principal. Driving David to the warehouse and waiting with the engine running is aiding. Liability can also arise under the common-design doctrine: if Eoin and David shared a common design to rob or to use force to collect the debt, Eoin is liable for offences within that design. Eoin knew David had assault convictions and saw the crowbar. That knowledge supports the inference that he foresaw violence or the possibility of serious harm. He need not have intended the precise injury. If the jury finds that serious harm was within the common design or foreseen as a possible incident, Eoin is liable for the robbery and for the assault causing serious harm. His claim that he did not know David would hurt anyone is undermined by the crowbar and the late-night circumstances.
2. Did Eoin withdraw from the common design when he drove around the block?
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No. Withdrawal from a common design must be timely, communicated to the other participants, and effective. It normally requires the withdrawing party to do all that is reasonably possible to neutralise their assistance, such as telling the others clearly that they are no longer involved or taking steps to prevent the crime. Eoin did not communicate any withdrawal. Driving around the block was not a withdrawal; it was a temporary absence. He then returned, waited for David and drove him away, which continued the joint enterprise. The law does not allow an accessory to escape liability by simply having second thoughts while the principal is still committing the offence. If anything, returning to collect David after hearing the shout and thud strengthens the prosecution case that Eoin remained part of the plan. Withdrawal is therefore not available on these facts.
3. Can Eoin rely on duress?
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Duress requires a threat of death or serious harm, an imminent danger, and no reasonable safe avenue of escape. Eoin says David had threatened to put him in hospital if he left. That could amount to a threat of serious harm, but duress is not available where the defendant voluntarily associated with dangerous criminals and could reasonably have avoided the threat. Eoin knew David's assault convictions and saw the crowbar; he chose to drive him at 2am to a warehouse. He could have refused at the outset or driven away and contacted gardaí. The threat was made earlier, not at the moment of the offence, and Eoin had opportunities to escape. Duress is also not a defence to murder, though it may be considered for other offences. On these facts the defence is very likely to fail. Eoin's fear may be relevant to sentence, but it does not excuse his participation.