Inchoate Offences Part 2 PDF

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Jane. Relevant Case law explained. Unit 9, Jane. Relevant Case law explained. Unit 9, Jane. Relevant Case law explained. Unit 9...

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Criminal Law

Unit 9

L2

Inchoate Offences INTRODUCTION - Inchoate means ‘just begun, incipient, in an initial or early stage’ - Inchoate offences can be prosecuted before the full offence has been committed - Penalising inchoate offences is not the same as penalising evil thoughts. 3 INCHOATE OFFENCES 1. Attempts 2. Offences under the serious crimes act 2007 3. Conspiracy

ATTEMPTS 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.  Section1(4) confines liability to attempts to commit indictable offences.  There is no crime of ‘attempt’. Attempts liability is always in relation to an offence. (for example: attempted murder) Example 1: A intends to kill B. A points a gun at B and shoots but misses. (This is a complete attempt) Example 2: A intends to kill B. She pours petrol through B’s letterbox and lights a match, intending to set fire to the house. However, she sees a police car further down the road and so does not light the petrol. WHY PROSECUTE AN ATTEMPT TO COMMIT AN OFFENCE? - No harm may result. Is this important? - Practical concerns (if you let things happen then the offence might be committed) - D is morally blameworthy ATTEMPTS: ACTUS REUS There must be an act, you can’t attempt something by omission. It must be something more than ‘merely preparatory’, as you cant attempt just by thinking evil thoughts. This is a question of fact for the jury. Gullefer (1990) 91 Cr App R 356 When G. realised that he would lose the money gambled on the outcome of a greyhound race, G. attempted to distract the dogs in the hope that the race would be declared a ‘no race’.

Criminal Law

Unit 9

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Jones (1990) 91 Cr App R 351 Elle is seeing Jones and Foreman. Jones purchases lots of guns, and shortens the barrel of the gun. He tests it out by firing it. He approaches Foreman outside a school, and jumps in the car with him. He pulls the gun out and points it at him and says ‘you’re not going to like this’. Foreman wrestles the gun out of Jones’ hands. The defence tried to argue that without Jones’ finger on the trigger it wasn’t a big enough act. However, the court said: “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. 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 L.J.)” Campbell (1991) 93 Cr.App.R.3 Someone tried to rob a post office. Police officers received intel that the post office was going to be robbed, and Campbell was in the area wearing sunglasses and carried a heavy item. He walked up to the post office and then left, he never went in. He then returned to get his motorbike, and was arrested. “From the viewpoint of public safety it is an unhappy decision. ... [the police] may feel obliged to wait until he has entered the post office and approached the counter before arresting him. The extra danger to post office staff, the public and the officers themselves is obvious.” Attorney-General References (No. 1 of 1992 ) [1993] 1 W.L.R. 274 Girl in a bush, with no clothes on. Man argued he was too drunk to perform, but was still convicted of attempted rape. Geddes [1996] Crim. L.R. 894 Found in the boys toilets with knife, rope and tape. Convicted of false imprisonment, but did not contact any students, so conviction was quashed. Mason v DPP [2009] EWHC 2198 (Admin)

Moore v DPP [2010] EWHC 1822 (Admin) D went to get his car from a compound, which is guarded by a police officer. Was stopped before he hit the public highway, because the police saw he was drunk. Charged with attempted drink driving. Convicted.      

If D performs the last act, D will be liable. D does not need to perform the very last act in order to be liable. D must move beyond mere preparation. D must ‘embark on the crime proper’. D must be in a position to carry out the offence. The question as to when D does something that it is more than merely preparatory and embarks on the crime proper will be determined on a case by case basis.

Criminal Law

Unit 9

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“The Court of Appeal’s various endeavours to reformulate the statutory test so that it can be applied meaningfully to the facts of differing cases have not been conspicuously successful. It is hardly helpful to refer to the steering of a ‘mid-way course’ between the ‘last act’ test and the penalization of merely preparatory acts.” (Ashworth, 6th ed 2009, 445). INTENT Intending to commit GBH will not constitute attempted murder. Intent is essential, so recklessness will not suffice. However, arson and rape might have an element of recklessness. R v Khan (1990) 2 All ER 783 A-G Reference (No. 3 of 1992) [1994] 2 All ER 121 Element of recklessness, they intended to commit arson but were reckless as to whether there were people inside the building. ATTEMPTING THE IMPOSSIBLE What might make the attempt impossible? 1. Legal impossibility (no liability, as there is no offence) 2. D’s poor performance (liability) 3. Physical impossibility (if you were stabbing someone to kill them, but they were already dead) Anderton v Ryan [1985] AC 560 Admitted she knew that the item was stolen, but this couldn’t be proven. So this was an impossible crime. Shivpuri [1987] AC 1 Believed they were importing drugs, but actually it was dried vegetable matter. It didn’t matter that it wasn’t drugs, but it was important that he BELIEVED it was drugs. Found liable. It was said that Anderton and Ryan was wrongly decided. R. v Jones (Ian Anthony) [2007] EWCA Crim 1118 Trying to get 8-13-year-old to have sex with him by writing on a toilet door ‘8-13 year olds wanted for sex’. Journalist operated as a 13-year-old girl called Amy and arranged to meet up with him. Was convicted even though there wasn’t an actual child. WITHDRAWAL No defence by withdrawal of an offence if steps have gone past being preparatory. Haughton v Smith [1975] AC 476 Van full of stolen goods, and police got into the boot of the car and allowed the van to drive to a station. They believed the goods were stolen, but they actually weren’t. PUNISHMENT Criminal Attempts Act 1981 s4(1) A person guilty by virtue of section 1 above of attempting to commit an offence shall—

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(a)if the offence attempted is murder or any other offence the sentence for which 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; and (c)if the offence attempted is triable either way, be liable on summary conviction to any penalty to which he would have been liable on summary conviction of that offence.

Law Reform? SERIOUS CRIMES ACT 2007  Section 44: Intentionally encouraging or assisting an offence  Section 45: Encouraging or assisting an offence believing it will be committed  Section 46: Encouraging or assisting offences believing one or more will be committed SECTION 44 (1) A person commits an offence if— (a)he does an act capable of encouraging or assisting the commission of an offence; and (b)he intends to encourage or assist its commission. (2)But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act. Sutcliffe [2011] EWCA Crim 2312 Used facebook to arrange a riot. Had pictures of his friends in gangster clothing, and of police in riot gear. Public page. Invited all his friends. It was said he was encouraging or assisting something criminal. SECTION 45 A person commits an offence if— (a)he does an act capable of encouraging or assisting the commission of an offence; and (b)he believes— (i)that the offence will be committed; and (ii)that his act will encourage or assist its commission SECTION 46 1) A person commits an offence if— (a)he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and (b)he believes (i) that one or more of those offences will be committed (but has no belief as to which); and

Criminal Law

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(ii) that his act will encourage or assist the commission of one or more of them. (2) It is immaterial for the purposes of section 1(b)(ii) whether the person has any belief as to which offence will be encourage or assisted. Blackshaw [2011] EWCA Crim 2312 Used Facebook to join a riot page. Public page. Posted information on how to riot through the whole country. ‘We’ll need to get on this, its happening all over’ – encouraging rioting. Convicted. Sadique (Omar) and Hussain (Zadique) [2011] EWCA Crim 2872 Sadique (Omar) [2013] EWCA Crim 1150 Supplied cutting agents (through his pharmaceutical company) for illegal drugs.

Common features of the Serious Crimes Act 2007:  ‘Encouragement’ or ‘Assistance’ No statutory definition. Serious Crime Act 2007 s65(1) Serious Crime Act 2007 s66  ‘Act’ Serious Crime Act 2007 s67 Serious Crime Act 2007 s47(8) Serious Crime Act 2007 s65(2)

Common features:  ‘Capable’ A question of fact for the jury. Serious Crime Act 2007 s65  ‘Commission of an offence’ D must have some form of mens rea if the full offence has a fault element.  The fault element where the substantive offence has a fault element. Serious Crime Act 2007 s47(5)(a) ... if the offence is one requiring proof of fault it must be proved that— (i)D believed that, were the act to be done, it would be done with that fault; (ii)D was reckless as to whether or not it would be done with that fault; or (iii)D's state of mind was such that, were he to do it, it would be done with that fault; and

KEY DIFFERENCES BETWEEN THE SECTIONS IN THE SERIOUS CRIMES ACT 2007!!! Key Differences – section 44  P does not need to be aware of, or actually, encouraged/assisted by D’s actions.  P does not need to complete the crime.

Criminal Law

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 The section focuses on whether D provided the assistance and encouragement with sufficient mens rea.  D must intend the action (direct intention only).  Intention cannot be proved by encouragement alone.  D could encourage another inchoate offence such as attempt or conspiracy (double inchoate liability). Key Differences – section 45  The emphasis is on belief rather than intention.  There is no need to show that D wants the crime to be committed.  D must believe that the substantive offence will be committed, not might be committed.  D must believe that his encouragement or assistance will actually encourage or assist P.  This section cannot apply to certain offences, such as conspiracies and attempts. Key Differences – section 46  One of a range of offences may be contemplated.  The emphasis is on belief rather than intention.  D does not need to believe that the one or more offences will be committed.  The indictment must specify the number of offences which D believed would be committed NOT the number of offences which D actually encouraged and assisted.  This section cannot apply to certain offences, such as conspiracies and attempts. CONSPIRACY An agreement between two or more persons to commit an offence(s). Conspiracy: 1. Common Law Conspiracies (conspiracy to defraud, and conspiracy to corrupt public morals) 2. Statutory Conspiracy Criminal Law Act 1977 s1 Exemptions from liability: Criminal Law Act 1977 s2(2) Conspiring to commit the impossible: Criminal Law Act 1977 s1(b) YOU CAN BE CONVICTED OF CONSPIRING FOR IMPOSSIBLE OFFENCES. Saik [2007] 1 AC 18 Money laundering conspiracy, converted drug trafficking money into foreign currency. He argued that he only suspected the money was from drug money, but he said he didn’t know. Was convicted, then appealed. It was found that as he didn’t know, he couldn’t intend to commit the crime....