[13]Inchoate offences PDF

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[13]Inchoate offences...

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Inchoate offences Introduction • • • • • • •

Three types of Inchoate offence Attempt, Conspiracy & Incitement All preparatory stages of criminal offence Must be charged with offence in question e.g. attempted burglary, incitement to murder. Police don’t have to wait for crime to be completed. Offenders as morally guilty as those who complete offence. Offenders as dangerous to society.

Attempt The Criminal Attempts Act 1981 s. 1: “If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.” •

The offence attempted must be an indictable offence by virtue of s. 1 (4). A person cannot be charged with attempting to commit a summary offence.

Actus Reus of Attempt • •

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The actus reus of attempt is doing ‘an act which is more than merely preparatory’ to the completed offence. Whether an act is more than merely preparatory is a question of fact and for the jury to decide (provided the judge concludes there is enough evidence to put to the jury s. 4 (3)) There have been some interesting decisions made by juries on this point. R v. Gullefer [1987] Crim LR 195 R v. Campbell (1991) 93 Cr App Rep 350 R v. Geddes (1996) 160 JP 697 Compare with R v. Jones [1990] 1 WLR 1057 R v. Tost [1997] Crim LR 746 R v. Bowles and Bowles [2004] EWCA 1608

Mens Rea of Attempt The Criminal Attempts Act 1981 s. 1: ‘If with intent to commit an offence’ The prosecution must prove that the accused did the act with the specific intention to commit the offence he is alleged to have attempted. So, for the crime of attempted murder

the prosecution must prove that the accused intended to kill the victim. Proof he intended to cause serious bodily harm is not enough. NOTE: This requirement does not apply to the mens rea for the circumstances of the offence. • • • • •

R v. Khan [1990] 2 All ER 783 R v. Dagnall [2003] 147 SJLB 995 A-G’s Reference (No. 3 of 1992)[1994] 1 WLR 409 R v. Mohan [1976] QB 1 R v. Walker and Hayles (1990) 90 Cr App Rep 226

Conditional Intent R v. Husseyn (1997) 67 Cr App Rep 131 A-G’s Reference (Nos. 1 & 2 of 1979) [1980} QB 180 Attempting the Impossible The Criminal Attempts Act 1981 Section 1(2) “A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.” Section 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 an intent to commit the offence.” In the first case after the 1981 Act to reach the House of Lords. doubt was cast on these provisions. Anderton v. Ryan [1985] AC 567, HL This case was heavily criticised and overruled by R v. Shivpuri [1987] AC 1, HL Offences that can’t be Attempted • • •

As previously mentioned there is no liability for attempts of summary offences unless expressly legislated. E.g.RTA 1988 offence to ‘drive or attempt to drive’ if over limit. No liability for attempt to be a secondary party. Some offences can’t be attempted because of their mens rea e.g. manslaughter, any omission or state of affairs offences.

Conspiracy •

Conspiracy is divided between statutory and common law conspiracy.

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However the common law only applies to conspiracy to defraud, corrupt public morals or outrage public decency. All other conspiracies will be covered by statute.

Statutory Conspiracy The Criminal Law Act 1977 Section 1(1) “Subject to the following provisions of this Part of the Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – (a) Will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or – (b) Would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, He is guilty of conspiracy to commit the offence or offences in question. Mens Rea •

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It is clear from the wording of the statute that only intention will suffice. Recklessness is not enough. Knowledge or belief is required as to circumstances even in strict liability cases. R v. Anderson [1986] AC 27 R v. Siracusa (1990) 90 Cr App Rep 340 NOTE following the above a defendant does not have to intend to play an active part in the agreed course of conduct. A conditional agreement can sill be conspiracy R v. Jackson [1985] Crim LR 442

Common Law Conspiracy Conspiracy to defraud This has become a very useful charge where the offence in question is not covered by the Theft Acts. There are 2 types: 1. To cause the victim economic loss by depriving him of some property or right. 2. To cause a person performing a public duty to act contrary to his public duty. Scot v. MPC [1975] AC 819 Wai Yu Tsang v. R [1992] 1 AC 269 R v. Adams [1995] Crim LR 561 Dishonesty R v. Ghosh [1982] QB 1053 Ivey v Genting Casinos [2017] UKSC 67 R v. Ali and others [2005] Crim. LR 864 Conspiracy to Corrupt Public Morals Shaw v. DPP [1962] AC 220 Conspiracy to Outrage Public Decency

Knuller v. DPP [1973] AC 435 Impossibility is a defence to common law conspiracy DPP v. Nock & Alsford [1978] AC 979 Incitement •

Incitement was (before 1st October 2008) the attempt to persuade another person to commit an act which if committed was a crime.

R v. Nkosiyana 1966 (4) SA 655 - An inciter “… is one who reaches and seeks to influence the mind of another to the commission of a crime.” per Holmes, JA at p.658 Actus Reus of Incitement • • • • • •

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That the accused, by encouragement, persuasion, threats or pressure tried to influence another to commit an offence. The influence does not necessarily have to be directed at a single person but can be aimed at society as a whole. R v. Most (1881) 7 QBD 244 Inciters may not wish to be overt about it and so incitement may be implied. Invicta Plastcs Ltd v. Clare [1976] Crim LR 131 Even if the incited person doesn’t understand what is being put to him or the message fails to reach him, e.g. inciting letter is intercepted, the accused can be charged with attempted incitement. R v. Ransford (1874) 13 Cox CC 9 The incited act had to be unlawful. No liability arose for inciting what was a lawful activity. R v. Whitehouse [1977] QB 868 R v. Claydon [2006] 1 Cr. App R 20 Inciting the impossible was still covered by common law. Parliament legislated to make it an offence to conspire to commit, or attempt, the impossible. DPP v. Nock & Alsford [1978] AC 979 R v. Fitzmaurice [1983] QB 1083, CA 205 The position is that if the incitement is to a specific crime and target, impossibility may be a defence. If the incitement was a persuasion to crime in more general terms, impossibility will not provide a defence.

Mens Rea of Incitement •

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The accused had to intend the full offence to be committed. E.g. Incitement to murder would not arise when only serious harm was intended by the inciter. They must intend that murder is committed. N.B. Remember the doctrine of innocent agency means that if the person incited has no mens rea, the inciter may well be held liable as the principal offender.

R v. Curr [1968] 2 QB 944 but see DPP v. Armstrong [2000] Crim. LR 379 Serious Crime Act 2007 • Part 2 of this Act came into force on 1st October 2008 and abolished common law incitement. So there is now an overlap with the new forms of inchoate liability. A defendant who performs an act capable of assisting or encouraging the Principal in the commission of an offence will be liable under ss. 44-46 (depending on his mens rea) irrespective of whether the offence is committed by the principal. • S.50 provides a defence of acting reasonably. • Section 51 limits liability where the offence encouraged or assisted was created to protect a category of people and the person doing the encouraging or assisting falls into that category....