Is Derren Brown guilty of Conspiracy to Murder?

Is Derren Brown guilty of Conspiracy to Murder?

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Introduction

As Derren Brown’s new show, Pushed to the Edge, aired on 12th January 2016 we got a tweet from a reader –

Well, did he?

 

Plot

If you know Derren Brown then you will know the sort of thing you’re getting. He’s a mentalist. An illusionist, magician,  debunker of fake psychics (is there any other kind?), and is no stranger to controversy. Also, he is a former law student, but for some reason felt that law was not exciting or rewarding enough.

His stage act and TV shows have often been about what happens when you take the powers of persuasion a bit too far. For example taking part in a bank robbery or shooting Stephen Fry. On this show he takes Chris Kingston, a random member of the public, a fine upstanding citizen who has never been in trouble before, and tries to make him a killer over the course of just over an hour.

He gets close, but in the end Chris pulls back from the final ‘push’, and walks away. It’s then revealed that this experiment was run with three other people, and all three pushed ‘Bernie’ off.

 

Is there a crime here?

Obviously there is no actual chance of a prosecution here – it’s done for entertainment. But for the sake of interest, has Chris, or Derren Brown, or anyone else guilty of a conspiracy to murder?

A conspiracy is an agreement to commit a criminal offence. Murder, you won’t be surprised to know, is a criminal offence. Pushing someone off a very tall building is likely to kill them of course, and the three that pushed did so with the intention of killing the person.

A plan to do something which all but one person knows is impossible, and is designed to be impossible, is not a criminal conspiracy as there is not the criminal intent. This is different to the situation where the outcome would not be criminal because of factors unknown to the conspirators (for example, where Lyndon and Dan agree to supply what they believe is drugs, but unknown to them is talcum powder).

Similarly, as Derren Brown knows that if Bernie is pushed he won’t die, he is not guilty of inciting the participants to murder – he knows that whatever happens, there won’t be a murder.

But would the participants be guilty of attempted murder? It sounds strange, but what the ‘pushers’ did do was an act that they intended should lead to the death of Bernie. Under s1 Criminal Attempts Act 1981 the fact that Bernie was never at risk is not a defence :

s(1)(3) In any case where—

(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but

(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,

then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.

So on the face of it, the pushers would be guilty of this offence.

Where does that leave Mr Brown? Under ss44-45 Serious Crime Act 2007 it is an offence to do an act “capable of encouraging or assisting the commission of an offence” if you intend to encourage it, or believe that it will be committed. However, for s45, an attempt to commit an offence is not counted, so we are left with the offence under s44.

By setting up the whole scenario (and getting others to incite Chris, others who may also be liable) Mr Brown arguably did an act, and he was intending to encourage Chris to commit the offence of Attempted Murder.

Under s50 Serious Crime Act 2007 there is a defence of ‘acting reasonably’ :

(1) A person is not guilty of an offence under this Part if he proves

(a) that he knew certain circumstances existed; and

(b) that it was reasonable for him to act as he did in those circumstances.

Here, Mr Brown knew all the circumstances, and knew that this was done for entertainment (and actually for a fascinating social experiment). There was a controlled environment, and counsellors on hand for the participants, so on that basis it is certainly arguable that what he was doing was ‘reasonable’ in the circumstances. We suspect a jury would agree.

Comment

Obviously this was all done for entertainment and we’re not seriously suggesting that anyone involved was guilty of any offence.

Mr Brown is a master manipulator, in all sense of the word. What this shows though is how susceptible, how frail, how human indeed, we all are. None of us believe that we are capable of committing any serious crime, let alone the ultimate one of murder, but this shows us that we are perhaps a bit too comfortable in this belief.

The law is all about judgment, and judging others. Maybe the most important lesson is that nothing is ever perfectly black and white, and that whilst the criminal law is binary – guilty or not guilty, in real life everything is many shades of grey.

On another note, in a previous show that Mr Brown has done, The Guilt Trip, he got someone to confess to a murder that they hadn’t done, something again that many people think would be impossible, but is actually a lot more common in real life than people would imagine.

All in all, there’s more to this than meets the eye, it’s not just great entertainment (and I am a big fan of his work). Whilst it won’t be on the curriculum for a university law course any time soon, the principles behind a lot of Mr Brown’s shows are ones that all criminal lawyers, and Judges, should know – it may give us all pause for thought.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

10 COMMENTS

  1. It may be legal to coerce someone to act in a way they believe will harm or kill another, but is it ethical to do this in the name of entertainment – or even in the name of science?

    Controversy still surrounds Stanley Milgram’s experiments on obedience to authority. Any social scientist who proposed an experiment on the lines of Brown’s stunt would certainly get short shrift from an ethics committee, however lofty the aims of the experiment.

    Having counsellors on hand is an acknowledgement of the potential dangers that Brown was knowingly exposing his victim to and makes his actions even more troubling. Counselling may not be successful and long-term psychological damage may be caused. Where is the entertainment in that?

  2. “Where is the entertainment in that?”

    You may well ask, but it’s not that long in terms of human history that crowds gathered to watch public hangings and only a bit longer since they watched heretics being burnt at the stake – and booed if the rope was twisted round the neck or a bag of gunpowder placed strategically to shorten the offender’s sufferings.

    And here’s a bit of trivia for you, L-E-S. Male traitors were hanged, drawn and quartered; hanged briefly, cut down still alive, castrated, then cut open and disembowelled with a hot knife. Of course you could not do that to female traitors – indecent, don’t you know – so they were burnt.

    And treason included murdering your feudal lord which in the case of a married woman meant your husband. So in theory women who killed their husbands could be burnt at the stake – although they were invariably strangled first if the sentence was not commuted to beheading.

    Then in 1790 those (male) softies in Parliament decided that ordinary hanging would do as it did for other murderers. Spoilsports.

  3. What would have been the case if, by a tragic accident, “Bernie’s” harness had failed and he had died?
    I think there may be more to this than we were shown last night.

  4. This does not seem to exonerate the alleged perpetrators. And then of course if they are indeed still liable for attempted murder – this impinges on the reasonableness of Derren Brown getting them in that position.

  5. It seems to me that the alleged perpetrators are still potentially in danger of a charge of attempted murder. If this is so then how can Derren Brown’s setting this up avail itself of the defence of reasonableness? exposing someone to a possible charge such as this must surely be inherently hard to defend?

  6. At the start of the Derren Brown programme, we saw an actor convincing a café employee that he was a police detective, and persuading the hapless individual to effectively ‘abduct’ a baby. Is this not the criminal offence of impersonating a police officer ?

    “1)

    Any person who with intent to deceive impersonates a member of a police force or special constable, or makes any statement or does any act calculated falsely to suggest that he is such a member or constable, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.”

  7. I’m not convinced by the argument that because it was for entertainment or a social experiment that a crime hasn’t been committed. The participants did not know they were part of a TV show and so their actions should be judged as if they happened in the real world.

    • I agree – although given the incitement and huge pressure any sentence must surely be minimal? I would reserve rather more for DB who went too far. I am not sure it is healthy for people to witness people intending to kill someone on TV with impunity.

  8. Far more interesting for me is the question, which you have touched on a little, ‘are the three participants guilt of attempted murder’ I think clearly they are, referring to the definition you noted above, that being so, why no prosecution. Just because the offence was committed on TV? Because they had been ‘duped’ into the attempt. None of this is a defence. So how can the police justify having filmed evidence of three people attempting murder…. And do nothing? Brown will undoubtedly have sought legal advice on his proposals, I’d be interested to know how that advisor could either make the case this wasn’t the commission of the offence, or give enough security for Derren to think ‘I’ll not do this as I may end up causing potentially four people to be jailed’

  9. I believe all four were actors and that the entire show was scripted, for this reason.

    Also, no doubt Brown would claim to be able to psychologically ‘detox’ participants after the event, but could Brown really demonstrate to a court that such a detox was effective? Otherwise it seems to me he (and the production team) would be leaving themselves open to charges of assault/abh/even gbh on the 4 through psychological harm.

    I can’t think of a scenario that doesn’t lead to some kind of offence being committed, unless everybody was in on the story.

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