Inchoate Offences - Lecture notes 3 PDF

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Inchoate offences • • Definition: where the substantive offence has not itself have been committed there may well be an offence of a different nature committed due to the actions or agreements of the defendant in preparing to commit the substantive offence Inchoate: incomplete Lecture – Inchoate Off...

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Inchoate offences •

•

Definition: where the substantive offence has not itself have been committed there may well be an offence of a different nature committed due to the actions or agreements of the defendant in preparing to commit the substantive offence Inchoate: incomplete

Lecture – Inchoate Offences (10/12/2018) -- ATTEMPT Inchoate offence: “Just begun, incipient, in an initial or early stage.” 

A points a gun at B’s head, but doesn’t pull the trigger.

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A goes to shoot B, but misses (and hits no one).

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A gives B a gun to shoot C. B chickens out.

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A tells B where C lives. B gets lost on the way.

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A texts B: “Let’s kill C after our criminal law lecture.” B replies: “Ok”.

Why punish inchoate offences?      

Dangerousness Moral Blameworthiness Crime Prevention Utilitarian rationale Eliminating chance Deterrence o Deter others from helping other to commit an offence

Sources   

Almost all underpinned by statues A significant role for Law Commission This is both a positive and a negative

Attempts Liability

Terminology 

THERE IS NO CRIME OF “ATTEMPT”

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IT IS ALWAYS “ATTEMPTED X”

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Attempted Murder; Attempted Theft; Attempted Robbery; etc.

Criminal Attempts Act 1981  Section 1(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.” (Emphasis added)

 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(4): “This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than:” o

Conspiracy (see lecture on 28th of January)

o

Aiding, abetting, counselling, or procuring an offence (see complicity lectures)

o

Assisted suicide (section 2 of the Suicide Act 1961)

Indictable vs Summary Offences Indictable (Crown Court) 

Murder

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Assault occasioning ABH

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Arson endangering life

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Robbery

Summary (Magistrates Court)

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Common assault

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Drunkenness

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Public order offences

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Criminal damage below £5000

Punishment  Section 4(1): “A person guilty by virtue of section 1 above of attempting to commit an offence shall: a) If the offence attempted is murder or any other sentence for which it is fixed by law, be liable on conviction on indictment to imprisonment for life; and b) If the offence attempted is indictable but does not fall within paragraph (a) above, be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence.”

Role of the judge and the jury  Section 4(3): “Where, in proceedings against a person for an offence under section 1 above, there is evidence sufficient in law to support a finding that he did an act falling within subsection (1) of that section, the question whether or not his act fell within that subsection is a question of fact.” 

Judge: Is there sufficient evidence to find a conviction? If so, leave to the jury.

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Jury: Is D guilty of the attempt?

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Starting point: what is the essential nature of the substantive offence? (See Dyer [2011] EWCA Crim 900, para 26)

Core Elements of Attempts Liability 

Actus Reus: o An act which is “more than merely preparatory to the commission of an offence.”

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Mens Rea: o

Intention to commit the offence.

o

NOT: An intention to attempt.

Actus Reus

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“An act which is more than merely preparatory to the commission of the offence.”

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Omission? o

Deliberately withholding food from a child with an intention to kill. Can this be attempted murder?

o

Bland [1993] AC 789 (Act vs omission)

o

Nevard [2006] EWCA Crim 2896

o

Law Commission No. 318: 1981 Act should be amended to allow the following: “D may be convicted of attempted murder if (with the intent to kill V) D failed to

discharge his or her legal duty to V (where that omission, unchecked, could have resulted in V’s death).”

Actus Reus: Pre-1981 Common Law 

Smith and Hogan: D’s steps must be “properly described as ‘an attempt’, in ordinary meaning.”

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Proximity test: whether D’s acts were “proximate” to the offence. o

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Haughton v Smith [1975] AC 476, per Lord Hailsham LC at 492: 

“The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence” and must be “immediately and not merely remotely connected with the completed offence.”

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This is what was known as the “proximity test”

Last Act approach: were D’s actions the last thing before committing the offence? o

Eagleton (1854) 5 Dears CC 515, at 538: 

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“It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt.”

Chain of actions: were D’s actions part of a chain of actions that would lead to the offence? o

Davey v Lee [1968] 1 QB 336, per Lord Parker CJ: When do the actions begin?

1981 Act: “More than merely preparatory”  

Law Commission sought to “rationalize” the law. But also wanted to move away from the proximity test as it could be too narrow. Gullefer [1990] 3 All ER 882 o 1981 Act is a midway course. o D does not have to have reached the point of no return. o Preparatory acts end when D “embarks upon the crime proper.” o That is a question for the jury.

Cases that were NOT “More than merely preparatory” 

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Campbell (1991) 93 Cr App R 350 o

Endorsed the “embarks upon the crime proper” test from Gullefer.

o

D had not “moved towards the door of the post office”.

o

It would be impossible to commit a robbery without entering the post office, going to the counter and making “some kind of hostile act.”

o

“A number of acts remained undone.”

Geddes [1996] Crim LR 894

o

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While it was clear that D had equipped himself to kidnap a child, and had got himself ready to do so, he had had no direct communication or contact with a child. He had not ”confronted” a child, and therefore could not be liable for attempted kidnapping.

Mason v DPP [2009] EWHC 2198 (Admin) o

D could not have “embarked on the ‘crime proper’ … until he did something which was part of the actual process of putting the car in motion. Turning on the engine would have been such a step, but starting to open the door of the car in my view was not capable of being so.” (per Nicol J, at para 19)

Cases that WERE “More than merely preparatory” 

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Jones (1990) 91 Cr App R 351 o

“Clearly his actions in obtaining the gun, in shortening it, in loading it, in putting on his disguise, and in going to the school could only be regarded as preparatory acts.

o

But, in our judgment, once he had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, there was sufficient evidence for the consideration of the jury on the charge of attempted murder.” (per Taylor LJ, at p. 356)

Tosti [1997] Crim LR 746 o

There was sufficient evidence to leave the question of attempts liability to the jury.

o

Emphasis on the word “merely”

Attorney-General’s Reference (No. 1 of 1992) (1993) 96 Cr App R 298 o

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The defendant had embarked on the crime proper, and therefore could be liable.

Litholevs [2002] EWCA Crim 1154 o

Pouring petrol on a front door, whilst also being in possession of a lighter, clearly amounted to embarking on the crime proper.

How do we rationalize these cases? 

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Law Commission No. 183 (2007) (Conspiracy and Attempts) o

“Preparatory conduct by D which is sufficiently close to the final act to be properly regarded as part of the execution of D’s plan can be an attempt. Such conduct is not merely preparatory but more than merely preparatory.” (para. 14.5)

o

Law Commission highlights Tosti as a good example.

o

Still views the conduct element of attempts in line with the proximity test.

Clarkson’s Confrontation Theory (2009) OJLS 25: o

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In Gullefer, Campbell, Geddes and Mason there had been no confrontation between the defendant and the potential victim, and so no full offence could have been achieved.

o

In Jones, Tosti, Attorney-General’s Ref (No. 1 of 1992) and Litholevs there had been a confrontation with the victim, therefore the full offence could have occurred.

o

Sliding back to the “last act” approach?

o

“Highly unsatisfactory” as it sets the bar too high (e.g. Campbell and Geddes)

o

Policy decisions, e.g. AG’s Ref (No. 1 of 1992).

Mens rea 

Section 1(1): “With intent to commit an offence to which this section applies”.

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Conduct, Consequences, Circumstances (3C’s)

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Khan (1990) 2 All ER 783

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Attorney-General’s Reference (No. 3 of 1992) [1994] 1 WLR 409

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Pace and Rogers [2014] EWCA Crim 186

Mens Rea: Conduct and Consequences 

D must intend to perform the act(s) that forms the conduct of his attempt.

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D must intend the consequences of his actions. o

Attorney-General’s Reference (No. 3 of 1992) [1994] 1 WLR 409

o

Pearman (1985) 85 Cr App R 259: oblique intention (Woollin) sufficient for consequences.

Mens Rea: Circumstances 

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Khan (1990) 2 All ER 783 (CA) o

At the time, the crime of rape required recklessness as to consent. Now, it requires a lack of reasonable belief as to consent.

o

Must D intend that V lacks consent, or is his recklessness as to a lack of consent sufficient for attempted rape?

o

Recklessness as to consent is sufficient, given that D must intend the conduct element.

o

But: “We recognise, of course, that our reasoning cannot apply to all offences and all attempts.” (per Russell LJ, at p. 819)

Attorney-General’s Reference (No. 3 of 1992) [1994] 1 WLR 409 o

Arson, being reckless as to whether the life of another would be endangered.

o

Khan “accords with common sense, and does no violence to the words of the statute.” (per Schieman J, at p. 419)

o

“In order to succeed in a prosecution for attempt, it must be shown that the defendant intended to achieve that which was missing from the full offence. Unless

that is shown, the prosecution have not proved that the defendant intended to commit the offence.” (per Schieman J, at p. 419) o 

It is D’s intent to commit the full offence that justifies punishing him, despite the lack of full offence.

Pace and Rogers [2014] EWCA Crim 186 o

To be liable for the full offence, D must know or suspect that the property is criminal.

o

This is an “impossible attempt”. The property was never stolen, and therefore could never have been “criminal”.

o

Khan “is not decisive for present purposes” as it concerned a crime requiring recklessness as the mens rea. Moreover, the defendants in Khan could have committed the full offence, but the defendants here could never have been guilty of the full offence. (per Davis LJ, at para 52)

o

“As a matter of ordinary language and in accordance with principle, an ‘intent to commit an offence’ connotes an intent to commit all the elements of the offence. We can see no sufficient basis, whether linguistic or purposive, for construing it otherwise.” (para. 62)

o

“Accordingly, an intent to commit the offence involves, in the present case, an intent to convert criminal property: and that connotes an intent that the property should be criminal property.” (para. 63)

Where do we go from here? 

Smith and Hogan suggest (15th ed., pp. 416 – 417) that Pace and Rogers is wrong. It may make it very difficult to secure convictions in cases like attempted rape, where D has shown a “high degree of culpability”.

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Critical: Stark [2014] 3 Archbold Review 7; Virgo (2014) 73 Cambridge Law Journal 244; Dyson [2014] Crim LR 445; Law Commission.

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Supportive: Child and Hunt (2014) 78 Journal of Criminal Law 220; Mirfield [2015] Crim LR 140; Simester (2015) 131 LQR 169

Impossible Attempts? 

Whilst on holiday, D is asked to carry a bag of suspicious white powder in his suitcase on the flight home to the UK. D’s suitcase is searched at customs, and the bag of white powder is discovered. It contains icing sugar. Is D liable for attempting to import a controlled substance?

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Section 1(2): o

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“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.”

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Section 1(3)(b) provides that the court must assess the situation on the basis of the facts as D “believed them to be”.

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**Shivpuri [1987] AC 1 o

Did D have the requisite mens rea to be liable for an attempt? Yes.

o

Did they commit the actus reus? No, due to the impossibility.

o

Sections 1(2) and 1(3)(b) compel the court to view the situation as D believed it to be.

o

Therefore, D is liable for the attempted offence.

Reform? 

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Law Commission No. 183 (2007) identified several problems with the law of attempts: o

“More than merely preparatory” has proved to be too vague and uncertain.

o

Too much focus has been placed on “trying” to commit an offence in the law of attempts.

o

The law ought to impose some criminal liability earlier in the process.

o

Omissions liability does not fall under the law of attempt.

o

The law of attempts is too reliant on the jury, which increases uncertainty.

o

Lack of clarity for the fault element.

Law Commission’s solution: o

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Two offences (para. 12.35): 

A narrower offence of “attempt” limited to “cases of completed or all-but completed attempt where the offender is engaged in the last acts needed to bring about the commission of the offence.”

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A broader offence of “criminal preparation (with intent)” limited to “the narrow band of preparatory acts immediately preceding an attempt.” This would encompass “on the job” preparatory steps. A case like Geddes would fall under this, and presumably Campbell too.

Clarkson’s Response (2009) OJLS 25: o

“The proposed subdivision of attempt into two offences is not aimed at capturing two distinct wrongs.” (p. 32) There is thus “no moral distinction” between the two. (p. 33)

o

Under the new offence, “attempts” would become very narrow. This would produce significant difficulties in distinguishing the two offences.

o

The offence of “criminal preparation” would be too broad, risking overcriminalization. (p. 34)

Law Commission No. 318 (2009):

o

Noted the criticisms made. Did not find them particularly persuasive, except for the general criticism that there was no general need to change the law on attempts. See paras 8.57 – 8.60).

o

Therefore, dropped the recommendation to divide attempts into two offences.

Conclusion 

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Criminal Attempts Act 1981. o

Actus reus: “more than merely preparatory”.

o

Mens rea: “with intent”. Conduct, consequences, circumstances.

o

How close must D get to committing the actual offence?

Mens rea of attempts is in a mess. A Supreme Court judgment would be welcome.

Lecture – Inchoate Offences: Serious Crimes Act 2007 Offences (11/12/2018)

Examples and Terminology The person we care about here is D, the defendant. He is the one who gives assistance or encouragement to P, the principal. P may or may not go on to commit the full offence. 

D gives P a gun so that P can kill V.

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D tells P where the safe is in the bank so that P can rob NatWest.

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D tells P the code to the door so that P can break in and rob NatWest.

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D acts as the getaway driver so that P can rob NatWest.

Old Law: Common Law Incitement

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Too many limitations The law is too narrow

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Imposed criminal liability on D for conduct that encouraged P to commit an offence. D was liable as soon as P was aware of the encouragement.

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There was no requirement to persuade P to commit the offence. See Marlow [1997] Crim LR 897.

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No one actually had to have been encouraged by D’s words or conduct. See DPP v Armstrong [2000] Crim LR 379.

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The act incited by D had to be one that, if performed, would amount to a criminal offence.

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The mens rea elements were relatively complex.

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D must have at least believed, if not intended, P to commit the full offence. See Marlow [1997] Crim LR 897

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Curr [1968] 2 QB 944: D could only be guilty of inciting P if, were P to commit the act incited, P would do so with the requisite fault element.

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If D merely assisted P, but did not encourage him, and P did not commit the offence, D was not liable for incitement.

Law Commission’s Recommendations Offence 1: “Encouraging or assisting the commission of a criminal act intending that the criminal act should be committed.” Offence 2: “Encouraging or assisting the commission of a criminal act believing that the encouragement or assistance will encourage or assist the commission of the criminal act and believing that the criminal act will be committed.” -

E.g. encouraging or assisting murder.

What Parliament Did 

Smith and Hogan: “torturously complex” (p. 475)

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Prof. Graham Virgo (2013): “the worst piece ...