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ANTHONY AMATRUDO
Criminal Actions
and Social Situations
Understanding the Role of Structure
and Intentionality
Criminal Actions and Social Situations
Anthony Amatrudo
vii
viii Acknowledgements
late Brian Barry FBA, who I had the enormous privilege of working with
as a research student at the LSE I recall daily; only now realising their true
wisdom.
Thanks also to the Onati Socio-Legal Series for permission to make use
of an earlier version of an article for this book: Amatrudo, A. (2016)
“Applying Analytical Reasoning to Clarify Intention and Responsibility
in Joint Enterprise Cases.” The Politics and Jurisprudence of Group
Offending: Onati Socio-Legal Series (2016) 6 (4) pp. 920–936.
ix
x Contents
Bibliography 181
Index 193
Section 1
Technical and Analytical
Considerations
1
The Central Problem of Collective Action
The basic issue this book seeks to address is the knotty problem of what
exactly collective action is. In this regard it is more ambitious and more
broadly focused than is typical for a work focused upon Criminology.
The job of this chapter is to move the existing criminological settlement
around gangs, and joint enterprise, towards a more technical concentra-
tion upon the nature of individual action and its relationship with joint
action. In doing this I largely follow the line I originally set out in my
earlier article (Amatrudo 2016). My view is that it is a more straightfor-
ward task to seek to apportion criminal responsibility technically than to
use the current, overly simplified and culturally reductive, accounts. This
more technical approach makes the allocation of culpability surer. The
argument will be that the law ought to be focused upon the wilful actions
of individuals acting either alone or in a group. Individuals commit
crimes, though they often do so with others. Culpability can only reside
with individuals and their individual actions and with groups that are
comprised of individuals. Culpability is only incidentally a structural
matter. Whilst robbers, street gang members, war criminals, drug dealers
and the like may form a group, what really matters are the individual
actions of actors even where there is agreement about the intentional
status of the group. The individual who stabs with a knife is always more
culpable than the person who looked on. Furthermore, serious consider-
ation needs to be afforded to goal setting, intentionality and deliberation
when considering the criminal action of criminal actors; more so than the
role of culture. When such technical matters are marginalised, the legiti-
macy of the outcome becomes inadequate, as is seen in the rise of joint
enterprise prosecutions since the 1980s in the UK (Williams and Clarke
2016). Our aim will be to better understand the actions, deliberations
and goals of individuals, and of groups, simply because these individuals
are held responsible for their actions. Accordingly, we must deconstruct
the blasé arguments often advanced concerning joint criminal activity in
order to weigh more carefully the elements that make it up. We can all
agree that it is certainly possible for individuals to act with a common
purpose: whilst also understanding that such a claim is a very compli-
cated, and multi-faceted, determination to make.
On the matter of culpability we must allow that one of most impor-
tant elements in collective action is the understanding that individuals,
themselves, may self-impose certain constraints upon their deliberation
in the form of goals and intentions. Collective action is simply what we
call the outcome of what happens when all the members of a given group
accept the same constraints put on their personal deliberations in order
that they might bring about collectively acceptable outcomes or an array
of collectively acceptable outcomes. We note that such an understanding
is effectively individualistic since it holds that each member of the group
makes their own personal deliberation. The only real difference between
the deliberation of personal goals and collective ones is in terms of the
sorts of goals that are set. The point here is that collective goals always rest
upon the role of individual moral agency. Consequently, we should stress
the role of individuals: rather than marginalise them in stressing collec-
tive agency. The personal responsibility of actors cannot be subsumed
into merely an aspect of a broader ontological affiliation.
Any account of collective action has to do several things. It first has to
explain how collective actions are themselves related to collective goals
whilst noting that the collective is always comprised of individual actors
and that is a tricky determination. Laws need to understand that the
criminal responsibility of groups always comprises a degree of individual
The Central Problem of Collective Action 5
good reasons not to engage in collective action. This may seem perplexing
but the thing to note here is that there can be a range of reasons for indi-
viduals to undertake cooperative actions. Simply put collective actions in
the prisoner’s dilemma game illustrate that these may be justified in terms
of the meta-reasoning of the collective action itself or as a justification for
the individual in terms of their part in the collective action by way of
executing an action that contributes to the greater collective action. In
other words, collective action is commonplace and there is rational justi-
fication for those undertaking it. One may imagine collective actions
which have no deliberative aspect to them, and possibly dancing might be
such a case, whilst conceding that deliberation is usually an aspect of col-
lective action. Those individuals who undertake collective action surely
need to reason concerning their role in achieving the goal of the group. As
we saw earlier, this may be either through collective or individual delib-
eration. For it is through deliberative collective action that individuals
settle issues and undertake actions. Surely it is better to look at criminal
groups as undertaking collective criminal actions in this fashion; as
opposed to using external attributes to explain the actions of criminal
groups or the demarcations allowed by academic gang typologies (Gordon
2000). It is also a good idea to distinguish between collective action and
collective behaviour: the former being deliberative, in other words purpo-
sive, and rationalised in terms of a definite reason and the latter being
mere undirected activity. This is helpful since it illustrates how the reason-
ing of individuals involved in deliberative collective action is an active and
dynamic aspect of it. Through a process of deliberation individuals come
to perform actions of the sort X performs actions x in accord with their
reasons and so are performing an action not a behaviour. When individu-
als perform collective actions they are doing so in the light of collective
goals. I accept that it is possible that collective goals could be undertaken
either deliberatively or non-deliberatively but because our focus is upon
culpable criminal activity we focus on deliberative instances.
The question is how to explain deliberative collective action? There is
distinction being made that holds there is a real difference between col-
lective and individual actions. Moreover, surely some actions are part of
sets of actions, individual and/or collective. Furthermore, deliberative
collective action has to be set out in terms that always relate to a pre-
The Central Problem of Collective Action 7
ing strong and weak notions of goal sharing and accounting for their
differential treatment of personal intimacy. Nonetheless, Bratman goes
on to set out three sorts of sharing which illustrate this issue. The forms
of shared activity he sets out are: (1) a basic commitment to mutual sup-
port, (2) a commitment to joint action and (3) a more elaborated notion
of “mutual responsiveness” (Bratman 1993). All of these three activities,
in their varying ways, centre upon achieving a goal. Bratman is shy of
distinguishing in terms of the level of intimacy but instead he uses a
technical distinction between JIA (jointly intentional activity) and SCA
(shared cooperative activity). He develops this in his article in the The
Philosophical Review, “Shared cooperative activity.” In this piece he sets
out the example of two singers who are involved in a duet. The issue he
points to is that though their separate actions would bring about a suc-
cessful duet they fail to support one another in their singing. Bratman
shows how if either singer messes up their singing then the other singer
does not have the ability to help out. He determines this to be an exam-
ple of JIA since SCA would entail an additional element, a commitment
to mutual support of the other singer. Bratman claims that: “(Any) joint
action-type can be loaded with respect to joint intentionality but still
not strictly speaking (be), cooperatively loaded …” (Bratman 1992).
We should note here that the question arises whether team goals, on this
reasoning, are cooperatively structured or structured in terms of the
parties’ joint intentionality. Bratman holds that team goals are coopera-
tively structured. This amounts to saying that those persons who hold
to a team goal are more committed than those who simply engage in
JIA. Bratman sets out three different sorts of outcomes that can be pro-
duced collectively. These are (1) collectively successful outcomes in which
every actor involved as a party to a joint activity performs a role in order
that the joint outcome is realised, (2) individually successful outcomes in
which an individual actor successfully performs their own contribution
to the joint action but other actors do not achieve this and (3) jointly
unsuccessful outcomes in which the actors neither fulfil to undertake
their role and where, consequently, there is no joint outcome success-
fully achieved. Do note we are using the term “joint” in a neutral fash-
ion because we have no grounds for assuming that joint outcomes
unavoidably require the contribution of more than one party. The
12 A. Amatrudo
It is important to note the technical term that is doing all the work
here. The first condition is what philosophers call a we-intention and it is
central to understanding Bratman’s contribution. The second condition
he calls the meshing sub-plans condition. The main thing to note is that
shared intentions may not be reduced to the set of attitudes held by indi-
viduals, instead they should be viewed as the appropriate mental attitudes
of appropriate individuals
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