As Derren Brown’s new show, Pushed to the Edge, aired on 12th January 2016 we got a tweet from a reader –
— Hoëklein (@Tumblespork) January 12, 2016
Well, did he?
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.
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.