2. Change in the Object of the Offence

Unintended change of the object of the offence can occur as a result of accident (missing the target and harming an object other than the one intended) or by mistake (injuring an object erroneously identified as the one intended). The doctrine of transferred malice was designed to bridge the gap that exists in both instances^{Footnote 9} between the mental element and the physical occurrence, that is, between the object intended and the object that was harmed. The doctrine fictitiously^{Footnote 10} shifts the perpetrator’s mens rea from the one object to the other and holds the perpetrator accountable as though he had consummated the offence toward the object which he actually harmed. Thus, a defendant who intends to kill person A and in the process kills person B instead is convicted of intentionally killing person B: the mental element directed at A is attached to the physical harm caused to B to form a consummated offence towards B. It is customary to make the transfer of malice between objects contingent upon some type of relationship between the perpetrator and the object actually harmed, for example, objective foreseeability as to the possibility of injuring that object (which is also required for conviction as an element of causation). Additionally, the doctrine only applies to objects of the same type, and therefore a defendant who intended to harm a person and instead harmed an inanimate object (or vice versa) is not convicted of a consummated offence but of an attempt aimed at the intended object (perhaps coupled with a consummated offence towards the object that was harmed in practice, based on the mental element that was in effect with regard to this object).

The tension between the intuitive appeal of transferred malice and the common legal requirement for a rigorous concurrence between the mental and physical elements of the offence^{Footnote 11} resulted in a range of approaches to the doctrine, expressing both support and reservation. The doctrine is supported by Anglo-American law and appears both in the Draft Criminal Code Bill for England and Wales^{Footnote 12} and in the American Model Penal Code.^{Footnote 13} The reservations are mostly academic (although they have gained positive influence outside Anglo-American countries) and can be classified in several ways. One theoretical division is between the abolitionists and the purists.^{Footnote 14} Abolitionists hold that the doctrine of transferred malice is redundant because it applies to cases in which the definition of the offence does not require a specific object to be harmed. Offences against the person and offences concerning property alike are not typically founded on intention to specifically harm a particular object but on the abstraction of a general intention to harm an object type, such as ‘human’ or ‘property’. The defendant meets this general requirement if both the intended object and the one actually harmed are of the same category referred to by the offence.^{Footnote 15} By contrast, purists believe that the reference to a general object type in the wording of offences simply means that all objects of that type equally receive the protection of the law, but the intention in every particular case still needs to be object-specific and examined with respect to the individual target of the offender (provided that the offender’s intention is indeed specific, and not generally directed at any object of a given type, as in the case of an indiscriminate bomber). Therefore, the purist does not find the doctrine of transferred malice redundant, but wrong. Instead of transferring the offender’s malice from one object to another in order to form a consummated offence against the object that was actually harmed, purism proposes a charge of attempt on the intended object, possibly coupled with a consummated offence against the actual object, depending on the defendant’s mental state in its respect.^{Footnote 16}

The issue does not lend itself to unequivocal resolution,^{Footnote 17} partly because both positions revolve around a more fundamental controversy regarding the manner in which mens rea is realized: as a general intent ^{Footnote 18} toward the type of object that comes to harm (‘a person’) as a symbol of a social value (according to the abolitionists), or as an object-specific intent attached to a particular individuum (according to the purists).^{Footnote 19} The controversy has to do with the level of abstraction concerning the object of mens rea, and questions of this type are not subject to sharp discrimination.^{Footnote 20} The choice in the level of abstraction used in legal discourse is best grounded in the intuitive agreement between discussants about the fit between the chosen level of abstraction and the correct disposal of the cases that form the object of the debate.^{Footnote 21} Therefore, arguments for and against various levels of abstraction—abolitionist vs. purist, general vs. concrete—must address our intuitions in the handling of concrete cases that, at present, fall within the ambit of the doctrine of transferred intent^{Footnote 22} and show consistency with respect to agreed upon legal principles.

Another conceptual dispute takes place between the consistent and the divided approaches to the issue. The segmentation occurs between abolitionists and purists who maintain their positions consistently with regard to cases of both mistaken identification and accidental miss-aim, and those who reserve their abolitionist or purist positions only to cases of miss-aim. The divided approach has practical consequences only within the framework of the purist position. Adherents of the type-oriented intent approach and the abolitionist position do not take into consideration the identity of the harmed object and thus pay no heed to its transposition, whether it is as a result of mistaken identification or missed target. By contrast, the dividing purist supports liability for attempt vis-à-vis the intended object in cases of missed target and liability for a consummated act with respect to the harmed object in cases of mistaken identification. According to this approach, a perpetrator who mistakes the identity of the harmed object still acts with mens rea to hurt the object before his eyes, that is, the object that is harmed. His belief that his action toward the object before him will harm the intended object is merely his motivation for that act, which is not necessary for assessing the requisite mens rea standard for criminal liability. By contrast, in cases of missed target the object that is physically aimed at and the object that is actually harmed are different and should not be united. Divided-Purism is the dominant position under German law.^{Footnote 23} In a recent article, I argued against the divided approach and the rationale on which it is based.^{Footnote 24} I pointed out that similarly to the distinction between the abolitionist and the purist positions, the different attitudes toward mistaking the identity of the victim and missing the target are not open to unequivocal determination, and are dependent on the manner in which we conceptualize intent. Based on a stricter conceptualization than that used by the dividing purist, it is possible to argue that the distinction between the object that was harmed in practice and the one intended by the perpetrator applies just as much to cases of mistaken identification as to cases of missed-aim.

In the subsequent sections, I will try to shed light on the two controversies, between the abolitionists and the purists and between the consistent and the divided approaches, by pointing out the consequences of each side to the debate in scenarios of collective criminality. The analysis of such scenarios supports the arguments for the purist approach (contrary to the Anglo-American position) and against the divided approach (contrary to the dominant position in German law). Thus, the article argues for the consistent object-specific approach to the question of conceptualizing criminal intent (implying also the rejection of the doctrine of transferred malice).

3. The Indirect Participant Caused a Change of Object

Consider first the following three scenarios:^{Footnote 25}

Scenarios 1 and 2 most closely resemble cases of perpetration by means of another (sometimes referred to as ‘perpetration through others’ or the doctrine of ‘innocent or semi-innocent agency’). In scenario 1, IP assumed control of the event and of DP, whereas in scenario 2, IP enjoyed a superior understanding of the situation. In both cases, however, IP affected only the identity of the object that was harmed and not the causing of harm or the type of harm caused. Although all but pure utilitarians^{Footnote 26} would consider IP’s conduct in scenarios 1 and 2 condemnable, the law finds it difficult to label them according to any of the recognized categories of complicity: IP did not carry out the actions jointly with DP, he is not an aider to DP because DP did not resort to his help (indeed, IP interfered with DP’s actions), and he did not do anything by way of instigating DP to act (in both scenarios IP did not communicate with DP at all). The law is also ill at ease treating these scenarios as instances of perpetration by means of an innocent or even semi-innocent agent.^{Footnote 27} The fact that the victim in each case is not the one that DP intended is of no legal significance because homicide laws refer to causing the death of a non-particular ‘person’, and the doctrine of transferred malice prevents a narrower individualization of the object of the offence to specific victims. Therefore DP is fully responsible for murdering B, making it inappropriate to regard him as an agent by which means IP committed the offence.

Note, however, that it is the reliance on type-oriented intent and the decision to transfer the intent from the intended object to the one actually harmed that create the difficulty in these scenarios. In scenario 1, IP deflects DP’s hand as he is pulling the trigger in order for the bullet to strike B instead of DP’s intended victim A, and we may well wish to attribute to IP liability for the killing of B. What is the level of conceptualization required to best realize this motivation? The direct perpetrator intended to kill a person, and therefore a type-oriented conceptualization of his intent includes the killing of the intended object (similarly, the doctrine of transferred malice allows transferring the intent from the intended to the actual object rendering the direct perpetrator liable for murdering the latter). Since the type-oriented conception of intent, as well as the application of transferred malice, render the direct perpetrator fully liable for the intentional killing of the actual object, the law faces two undesirable options with regards to the indirect participant: (1) to acquit the indirect participant of liability for the killing because he was not an accomplice to the direct perpetrator’s action, and neither did he cause the death of a person (he merely altered the victim’s identity, which under a type-oriented conceptualization is immaterial); or (2) to expand the doctrine of perpetration by means of another to uncomfortable boundaries, boundaries that would include perpetration by means of an agent who is not innocent or even semi-innocent, but who is fully liable for the intentional killing. Conceptualization of intent as object-specific circumvents this difficulty. If the direct perpetrator is convicted of the homicide caused based on his existent mental element regarding the possibility of harming the actual object (negligence or recklessness, as the case may be, leading to his conviction of negligent homicide or manslaughter, respectively), it becomes possible to regard the indirect participator as a perpetrator by means of his semi-innocent agency. Perpetration of murder by means of a negligent or reckless agent fits more naturally with the doctrine than the perpetration of murder through another murderer, and it makes for more sensible jurisprudence. Thus, cases such as scenario 1 support the object-specific over the type-oriented notion of intent.

Recall that the topic is logically under-determinate. Thus, a favorable solution to scenario 1 is provided by the purist conception of object-specific intent, but the advantage is not a sweeping one. A variation of scenario 1 illustrates this point: armed with a pistol and a poor understanding of ballistics, DP believes that he is aiming his weapon in such a way that a single bullet will strike both A and B and kill them. IP, whose understanding of ballistics is superior, knows that the bullet will only strike A, and therefore, and with the intention that it will be B that dies from the shot, deflects DP’s hand in the direction of B. In this variation DP’s specific intent includes both objects, rendering him liable for the murder of B under either conception of intent. Therefore, in this variation, holding IP liable for murdering B through the innocent or semi-innocent agency of DP is as problematic for purists as it is for abolitionists.

The case of sending a different victim to the site of the ambush (scenario 2) illustrates yet another point. The two cases differ in that in scenario 1 the direct perpetrator harms the actual object accidentally by missing his target, whereas in scenario 2 he does so as a result of mistaken identification. Scenario 2 shows that events in which the object is replaced by the indirect perpetrator provide an intuitively appealing basis to argue against the divided approach, that is, against the distinction between missing the target and mistaking its identity. Similarly to scenario 1, this scenario is also best handled through an object-specific conceptualization of intent, which would attribute to the direct perpetrator an attempt to harm the intended object and only an unintentional consummated offence against the actual object. Our motivation to convict the indirect participant as causing intentional harm to the actual object by means of a mislead agent is properly satisfied when the direct perpetrator is not convicted of intentionally harming the actual object, as prescribed by the divided approach in cases of mistaken identification, but only of negligence or recklessness. In this way, the mental state of the direct perpetrator vis-à-vis the harm caused to the actual victim is inferior to that of the indirect participant, enabling the doctrine of perpetration by means of a semi-innocent agent to lead to the just conviction of the indirect participant of the intentional killing of B without exceeding its natural boundaries.

Scenario 3, in which IP persuades DP to kill victim B instead of intended victim A, illustrates a case of instigation and it too provides an argument in favor of specific intent, albeit a weaker one than that which was provided by its predecessors. Unlike the case in which IP deflected DP’s hand (scenario 1) or sent a victim to the scene of the ambush (scenario 2), which refer to a single shooting incident, the instigation scenario can be divided into two events: the killing of A and the killing of B. Looked at in this way, the scenario is no more than a special case of instigation in which IP incited DP to abandon his original plan and to adopt instead a different one, which is the source of his liability for instigation to kill B. Such a scenario does not carry much informative weight for the present investigation. But even with this reservation granted, the instigation scenario illustrates the intuitive strength of the purist position, because had the object remained unchanged we would not have considered a case in which the indirect participant persuaded the direct perpetrator to change the timing of the event or the manner of its execution as generating a separate instance of the offence. Indeed, in such cases law would not regard the indirect participant as an instigator but as an aider to the offence who advised on the manner of its execution.^{Footnote 28} Thus, the law demonstrates a distinctive sensitivity to the identity of the harmed object, as is advocated by the purist approach.^{Footnote 29}

The combined result of the discussion of scenarios in which the distant participant caused a change in the object of the offence supports the object-specific conceptualization of intent, as well as a consistent application of this level of abstraction in cases of accidentally missing the target and of mistaking the identity of the object alike. In the following sections of the article, I will demonstrate that similar insights follow from other types of combination between complicity and displaced harm.

4. The Direct Perpetrator Caused a Change of Object

We now move to consider three additional scenarios to determine which conception of intent best distributes liability among the physical and distant participants in the offence.

Scenarios in which the direct perpetrator deviates from the original plan combine questions of causality with issues of mens rea and bring four additional variables into consideration: (a) whether the deviation is accidental, mistaken, or intentional; (b) the extent of the deviation from the original plan; (c) the nature and content of the deviation;^{Footnote 30} (d) the timing of the deviation. A change of the object of the offence is generally perceived as a material deviation. By comparison, a change in the modus operandi is generally considered to be insignificant. It is possible, however, to envisage examples in which the modus operandi is material as far as the indirect perpetrator is concerned. For example, a husband who insured his wife against death by traffic accident, may experience disappointment if the hit-man he hires to run her over decides to shoot her to death instead.^{Footnote 31} Similarly, when the insurance policy is limited in time or territory, these can become essential operational factors.^{Footnote 32} Because occasionally the mode of execution is important, the nature and content of the deviation cannot be the decisive factors in settling the liability of the distant participant.^{Footnote 33} On this background, English law elected to emphasize the process that caused the deviation, and distinguished deviation caused by accident (scenario 4) or mistake (scenario 5) from deliberate deviation (scenario 6). This position and the implications it carries for the conceptualization of intent are best explained through the case of Saunders and Archer.^{Footnote 34}

The Saunders and Archer ruling represents a case in which the direct perpetrator changed the object of the offence: Archer provided Saunders with the means to lace an apple intended to be used to poison Saunders’ wife; unsuspectingly, the wife gave the apple to their daughter, who consumed it in the couple’s presence and died. Which of scenarios 4-6 is relevant to this case, and what is the significance of this determination for Archer’s liability for the death of Saunders’s daughter? David Ormerod characterizes Saunders and Archer as a case of deliberate deviation (scenario 6). He attributes the court’s decision to acquit the indirect participant, Archer, to the position that Saunders’s choice to keep silent in view of the transfer of the poisoned apple from the wife to the daughter creates a new and independent act, disconnected from the assistance provided by Archer. Ormerod observes that had Saunders not been present at the time when his wife transferred the apple to his daughter, this would have been a case of accidental displacement of harm (scenario 4), and Archer should have been found liable.^{Footnote 35} Michael Bohlander on the other hand is critical of the court’s ruling and classifies the facts of Saunders and Archer as accidental displacement of harm (scenario 4). In his opinion, Saunders did not actively replace his victim but merely failed to intervene in the course of events, and such an omission cannot sever the chain of causality starting with him presenting his wife with the poisoned apple.^{Footnote 36}

The prevailing approach found in scholarly comments on this verdict makes the liability of the indirect participant for the change of object contingent upon whether or not the direct perpetrator changed the object deliberately. The indirect participant is not liable if the direct perpetrator deviated purposefully from the plan, as for example, if he received a knife to kill A and resolves to use the knife to kill B instead. By contrast, accidental or mistaken deviation of the direct perpetrator does not detract from the liability of the indirect participant.^{Footnote 37} Under this approach, scenarios 4 and 5 lead to liability and scenario 6 to acquittal. Among the supporters of the prevailing approach, based on the distinction between accidental or mistaken change in the object on one hand and deliberate change on the other, are Herbert Hart and Tony Honore. In their opinion, only an independent decision on the part of the direct perpetrator to change the object of the offence can exempt the indirect participant of liability.^{Footnote 38} They suggest viewing Saunders’s decision to conceal from his wife that the apple was poisoned as a new and independent decision, which annuls Archer’s liability as an indirect participant. They hint, however, at another possibility, according to which Saunders’s decision was not altogether independent, free, or deliberate, as revealing that the apple was poisoned would have constituted an admission of attempted murder on the wife and exposed him to severe penalty. Lack of free deliberation in Saunders would have rendered Archer liable.^{Footnote 39} This analysis, rather than illustrate the advantage of the prevailing approach, lends support to the foreseeability standard in determining the indirect participant’s liability. It seems clear that the question of whether Saunders’s feelings of apprehension of his wife or the police were stronger than his love for his daughter, or vice versa, should not have direct bearing on the test applied to determine the liability of Archer, which more plausibly depends on whether Archer should have foreseen the death.

The question therefore arises whether the decision of the direct perpetrator to replace the object of the offence should be the only touchstone for the liability of the indirect participant, as is the case in the prevailing approach. It seems evident that the test should not focus on the mental state of the direct perpetrator but on the point of view of the distant accomplice,^{Footnote 40} and that whenever the deliberate deviation is within the boundaries of foreseeability, it is not fundamentally different from deviation caused by accident or mistake. Whether the deviation is accidental or mistaken on one hand or deliberate on the other serves as an indication of the degree of its predictability, but it is not an independent and decisive benchmark. It may be the case that deliberate deviations from the original plan by the direct perpetrator are generally unforeseen, but this is not necessarily true. At the same time, deviations caused by accident or mistake are not always foreseen. Saunders’s presence at the time of the transfer of the apple from his wife to his daughter affected his mental state as a perpetrator, but it does not necessarily attest to the mental state of his accessory. Saunders acting as a novus actus interveniens in the causal chain between Archer and the fatal result can play no more significant a role than to indicate the probability of this result and therefore its level of foreseeability.

This elaborate discussion over the Saunders and Archer verdict bears direct consequences for the conceptualization of intent, as the avowed confidence of Anglo-American Law in the doctrine of transferred malice and in the type-oriented conceptualization of intent evidently falls apart when approaching scenarios of complicity in which the direct perpetrator changes the object of the offence. The only occasion in which English law ascribes any relevance to the specific identity of the object of the offence is of this type. When the direct perpetrator deliberately changes the object of the offence, the doctrine of transferred malice does not apply to the indirect participant despite the fact that from his point of view the displacement of harm was accidental. Accounting for the identity of the victim in cases of indirect participation contradicts the general applicability of the doctrine of transferred malice and the overall disregard by English law of the concrete identity of the victim in other contexts.^{Footnote 41} This deviation from the generic attitude of English law should make us question the type-oriented conceptualization and the doctrine of transferred malice in general. This is indeed the effect that this deviation had on Andrew Ashworth and Jeremy Horder, who write:

Deciding between the different possibilities becomes particularly important in situations in which the deviation is foreseeable by only one of the parties to the offence, either the direct perpetrator or the indirect participant. Recall that foreseeability (objectively conceived) regarding harm to the actual object is sometimes considered a condition for the transfer of malice and it additionally serves as one of the requirements of causality. Let us consider that the direct perpetrator was commissioned by the indirect participant to harm object A, or that he was assisted by the indirect participant for this purpose, and that eventually the direct perpetrator harmed object B. Let us now add two alternative assumptions: (a) the direct perpetrator could be expected to foresee the possibility of harming B, whereas the indirect participant bore no such expectation; and (b) the indirect participant could be expected to foresee the possibility of harming B, whereas the direct perpetrator bore no such expectation. Under assumption (a),^{Footnote 43} where the indirect participant is a perpetrator by means of an innocent agent (as opposed to being defined as an instigator or aider), he cannot be found liable for the harm that befalls the actual object, because the direct perpetrator is merely an instrument at his disposal and the foresight of the instrument with regard to the threat to the actual object is not projected onto the perpetrator by his means. This result is not consistent with the law applicable in similar scenarios to the instigator and the aider, whose liability derives from that of the direct perpetrator. At least as long as the direct perpetrator has not deliberately altered the target of the offence, a transfer of the direct perpetrator’s intent applies also to the derivatives, and therefore the instigator and aider are found liable for the harm caused to the actual object.^{Footnote 44} Thus, the perpetrator by means of an innocent or semi-innocent agent is liable only for attempting to cause harm to the intended object, whereas the instigator and the aider are liable for the consummated harm caused to the actual object, and this is inconsistent with the status of the perpetrator by means as a principal in the offence whose liability should not be lesser than that of the instigator and aider, who are merely secondary participants. The inference is that as long as accessorial liability derives from that of the perpetrator, it is preferable in these cases to renounce the transfer of malice and to opt for the object-specific conceptualization of intent. In this way, the liability of the instigator and of the aider derives from the attempt to harm the intended target, consistent with the liability of the perpetrator by means in similar scenarios.^{Footnote 45}

Applying the doctrine of transferred malice to assumption (b), in which the indirect participant alone should have foreseen the danger to the actual object, has the reverse result. When the indirect participant is a perpetrator by means who should have expected the risk to the actual object at the hands of his agent, he is convicted of harming that object. By contrast, liability imposed on the instigator and aider is derived from the liability of the direct perpetrator for having attempted to harm the intended object.^{Footnote 46} In this alternative, the inconsistency is not too problematic, as the liability of the perpetrator by means, who is liable for the harm to the actual object, is greater than that of the instigator and the aider, who are liable only for attempted harm to the intended target. The discussion, however, accomplishes a higher degree of consistency by adopting the purist ideal of object-specific intent. Thus, the intent of the perpetrator by means of another is not transferred to the object actually harmed, and all the participants—the direct perpetrator, the perpetrator by means, the instigator, and the aider—are convicted for attempted harm to the intended object.

Scenarios in which the direct perpetrator changed the object of the offence illustrate further the futility in the divided treatment of deviations caused by accident and by mistake. From the vantage point of the indirect participants, both deviations are accidental. If IP sent DP to kill A, and DP aimed at B thinking that he was A (scenario 5), it is a case of mistaken identification from the perspective of DP, but an accidental missed operation as far as IP is concerned, because his action was aimed against A throughout.^{Footnote 47} The same holds for IP if DP miss-aims (scenario 4). The divided approach can become especially tricky when it is used to assign liability to accessories. According to the divided approach, when the indirect participant instigates the direct perpetrator to commit the offence, or helps him do so, and the direct perpetrator mistakes the identity of the intended object (scenario 5), the liability for instigation or aiding derives from the direct perpetrator’s liability for harming the actual object (recall that the divided approach advocates the abolitionist position in instances of mistaken identification), although we saw that from the vantage point of the indirect participant the displacement of the harm was an accident. It follows that the divided approach is inconsistent in its treatment of direct perpetrators and accessories. By contrast, the application of the purist position to cases of mistake and accident alike—which attributes to the direct perpetrator attempt vis-à-vis the intended object whether the change of object was the result of accident or mistake (scenarios 4 or 5, respectively)—allows the purist to attribute to the instigator and the aider in both scenarios liability derived from the attempted harm to the intended target (instigation to attempt or aiding an attempt, respectively), as is appropriate in cases of accident. If the dividing rationale between accidental and mistaken change of object fails with respect to the indirect participant, its strength relative to perpetrators in general is reduced.

In sum, we saw that in cases in which the direct perpetrator chose, on his own initiative, to alter the object of the offence (scenario 6), the law avoids adopting a type-oriented conceptualization of mens rea and creates an exception to the application of the doctrine of transferred malice. This revelation led us to examine examples in which the direct perpetrator caused a change in the object of the offence through either accident or mistaken identification (scenarios 4 and 5). In these examples, choosing a type-oriented conception of intent and applying the doctrine of transferred malice result in a lack of uniformity in the liability of the various categories of indirect participation: the perpetrator by means of an innocent agent on one hand, and the instigator and the aider on the other. According to the alternative in which only the direct perpetrator is expected to foresee the possibility of causing harm to the object that was harmed in practice, the approach that follows the type-oriented intent and the doctrine of transferred malice results in inability to impose liability for harming the actual object on the perpetrator by means (whose liability should be greater, not lower than that of the instigator and aider to the offence), while at the same time the instigator and aider (whose liability is derived from that of the direct perpetrator, whose intent in turn was transferred to the object actually harmed) are found liable for harm caused to this object. In the opposite situation, in which only the indirect perpetrator is expected to foresee the possibility of harm to the object actually harmed, the approach following the type-oriented intent and the doctrine of transferred malice results in a mismatch between the liability of the perpetrator by means, who is accused of causing harm to the actual object, and that of the instigator and the aider, who are liable for attempting to cause harm to the intended object. By contrast, conceptualizing the intent of the direct perpetrator as specific to the intended object alone, as in the purist position, makes it possible to impose uniform liability on all indirect participants in both alternatives, founded on the attempt to harm the intended object.

The scenarios presented in this section further demonstrate the superiority of the object-specific conceptualization of intent in cases in which the direct perpetrator mistook the identity of the object of the offence, especially when his liability is derivatively imputed to the indirect accessories. According to the divided approach, the liability of accessories in such cases is derived from the harm caused to the actual object. Because the mistake of the direct perpetrator represents, from the indirect accessories’ point of view, an accidental miss-operation, an inconsistency is revealed within the divided approach. By contrast, conceptualizing intent as object-specific in cases of accidental miss-aim and mistaken identity by the direct perpetrator alike avoids such inconsistency, by enabling the law to derive the liability of instigators and aiders from the attempt directed at the intended object in both cases.

5. Change of Object and Joint Perpetration

We now add three final scenarios:

The first scenario describes the facts in the ruling of the UK Supreme Court in Gnango.^{Footnote 48} Examining the liability of P2 for the killing of O in this scenario raises the question of whether this is indeed a case of joint perpetration. Another way of looking at the actions of P1 and P2 is to regard the two as parties to an affray and to derive P2’s liability for the killing of O parasitically from the liability of the actual shooter, P1. The court however was not prepared to adopt this course because of the mismatch between the circumstances of the concrete case and the subtleties in the definition of affray in English law^{Footnote 49} and, more fundamentally, because both participants in the event, Gnango and Bandana Man,^{Footnote 50} did not act jointly, but much to the contrary were firing at each other with the intention to kill.^{Footnote 51} Therefore, a majority of the Court chose to regard Gnango (the equivalent of P2 in scenario 7) as being a co-perpetrator with Bandana Man (the equivalent of P1 in scenario 7) in the shooting aimed at himself. Because the bullet missed Gnango and struck a passerby, the Court transferred the intent from the killing of Gnango to the killing of the passerby, and convicted Gnango of her killing. The majority judgment reflects two approaches to the nature of Gnango’s complicity with Bandana Man: four of the judges imposed on Gnango liability for assisting the shooting at himself, based on the logic that by shooting at Bandana Man, Gnango encouraged him to return fire.^{Footnote 52} This view classifies the situation as one of indirect participation, which falls under the scenarios described in Section 4 above. These judges, however, expressed their willingness to concede the second approach among the majority judges, according to which Gnango’s conduct can be viewed as joint perpetration of shooting at himself,^{Footnote 53} which is why the verdict falls within the confines of the present section.^{Footnote 54}

The conviction of Gnango for the killing of the passerby is made possible only by the adoption of one of two approaches: (a) the conduct of the shooters is defined broadly as a Battle between two opponents that resulted in death; (b) the conduct is defined more narrowly, as shooting by Bandana Man, but the shooting is attributed to Gnango as a joint perpetrator. The majority opinion chose to adopt the second approach, and in addition transferred the malice of the parties from Gnango to the passerby.^{Footnote 55} This choice reflects a fictitious attitude toward Gnango as someone who had formed an intent to kill himself, an intent that was translated into intention to harm the passerby. Unfortunately, adoption of a purist approach that examines the intent of the parties to the event as object-specific would not have led the majority judges to a better result. According to this position, the mens rea of the parties is not transferred to the passerby, and therefore the liability of the Bandana Man is for attempt to harm Gnango (perhaps in combination with a consummated offence, based on the mental element of the shooter, against the passerby), and Gnango’s liability, as a partner to the shooting of the Bandana Man, refers to the same offence. The problem here is not rooted in the position adopted with regard to the conceptualization of intent, but in the odd amalgamation into a partnership of mutual attempted murder, a creation that is a distorted result of the desire to attribute the death of the passerby to Gnango. The failure of the purist position to carry the majority opinion in Gnango to a more satisfactory result than the one reached by means of the type-oriented approach or through the doctrine of transferred malice does not attest to the superiority or inferiority of either position, but points to a flaw in the perception of two opponents shooting at each other as sharing each other’s objectives.

To further illustrate this point I propose to implement a technique that served the argument in the preceding sections of this article: adding parties to the scenario. How should we regard an accessory who provided Gnango with the gun after he learned about Gnango’s conflict with the Bandana Man? Had the Bandana Man killed Gnango, we would not have imposed on the provider of the gun liability as an accessory to Gnango in killing himself. Similarly, we would not have imposed liability on the provider of the gun as an accessory to the Bandana Man in killing Gnango by providing a gun to Gnango so that he may kill the Bandana Man. From the point of view of the provider of the weapon, the killing of the passerby at the hands of the Bandana Man is a less expected result than the killing of Gnango in the shootout with the Bandana Man. Thus, why impose liability on the provider of the weapon for this offence, as would follow from the position of the majority judges? Such a ruling would clearly be a misrepresentation of the incident, and form another unfortunate result of implicating Gnango in his own killing or attempt thereof.

Scenarios 8 and 9 represent a proper case of joint perpetration: the participants jointly commit the offence against a common object, similarly to the Mansell and Herbert case,^{Footnote 56} but with one important variation. A case such as that of Mansell and Herbert is not in itself insightful for our inquiry into the preferable conception of intent, because the question that Mansell and Herbert raises does not deviate from that which appears in all cases of displaced harm: Is it appropriate to attribute to the perpetrator (in this case, perpetrators) (a) harm to the actual object, according to the type-oriented conceptualization or through the transfer of malice from the intended object to the one that was harmed in practice, or (b) attempt to harm the intended object, as proposed by the purist position and the object-specific conceptualization on which it relies. By contrast, the variations that appears in scenarios 8 and 9 enable us to advance the debate, because even if we accept that there are no decisive reasons in either case concerning the liability of the shooter,^{Footnote 57} P1, regarding the liability of the joint perpetrator who did not shoot but was shot at, P2, the answer is clear: it is much more reasonable to attribute to P2 attempted homicide of his intended victim O rather than attempted self-homicide.^{Footnote 58} This is the case especially if we take into account that if P2 had tried to kill himself he would have been absolved of all liability.^{Footnote 59} The purist position does not attribute to P2 joint perpetration in the attempt to kill himself but joint perpetration in the attempt to kill O, the intended object. It could be argued that the purist position allows attributing to the parties, in addition to the attempt to harm the intended object, further liability for harm caused to the actual object. But since there was no partnership between the parties for harming each other, liability for harming P2 is contingent upon the individual mental state of each defendant with regard to the given outcome. Thus, P2 is absolved of the harm caused to himself despite P1’s liability for this offence.

The wisdom in not treating one as a joint perpetrator in an attempt to harm oneself is valid both in cases of missed operation and of mistaken identification. As illustrated in scenario 9, it makes no difference whether P1 thought that P2 is the intended O or whether P1 aimed at O and hit P2 by accident; in both cases it would be likewise unusual to impose liability on P2 for an attempt to kill himself.

It follows, therefore, that scenarios of displaced harm caused by a joint perpetrator support an object-specific conceptualization of intent and a consistent application in cases of accident and mistaken identification—the same conclusion as that reached in the two preceding sections through the analysis of indirect participation. The example of reciprocal shooting (scenario 7) does not grant priority to either approach concerning the conceptualization of intent. But the case of the perpetrator who aims for the victim but harms his joint perpetrator instead (scenarios 8 and 9) supports the object-specific conceptualization of intent, because both the type-oriented conceptualization of intent and the doctrine of transferred malice lead to the anomalous conclusion that the perpetrator who was hurt is guilty of taking part in a criminal enterprise of killing himself, although attempted suicide is not a criminal offence. By contrast, an object-specific conceptualization avoids a similar anomaly by imposing on the perpetrator who was harmed liability for attempted harm to the intended victim of the joint criminal enterprise, whether his partner aimed at him as a result of missing the victim or because of mistaking him for the victim.