#3087 - Inchoate Offences - GDL Criminal Law

Introduction

- Inchoate offence: d. takes some steps towards commission of crime – no need for offence to take place.

• inchoate: unfinished, undeveloped (inchoatus: begun).

• 3 types of inchoate offence: (continuum – 1 can lead onto another).

  • 1. encouraging or assisting crime (incitement) – (not examinable).

  • 2. conspiracy to commit a crime.

  • 3. attempt to commit a crime.

• N.B. always identify specific offence conspired/attempted etc.

Statutory Conspiracy

- Conspiracy: common law + statutory offence.

• 1. statutory conspiracy: s1 Criminal Law Act 1977.

• 2. common law conspiracy: to defraud; corrupt public morals; outrage public decency.

- Statutory conspiracy: s1(1) Criminal Law Act 1977.

• s1(1): d. agrees with any other person(s) that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

  • s1(1)(a): will necessarily amount to or involve the commission of any offence, or

  • s1(1)(b): would do so but for existence of facts which render commission offence impossible.

Actus Reus

- Agreement between 2 or more people to course of conduct that will necessarily amount to/involve an offence.

• conspiracy as soon as parties agree: no need to take steps to carry out – DPP v Doot [1973].

  • only terminates on completion: performance, abandonment or frustration.

• actual agreement to commit offence needed:

  • more than mere discussion – R v Walker [1962]: d. withdrew during negotiation not guilty.

  • no need to agree all details – R v Nock [1978].

- Exemptions: certain people cannot be co-conspirators – s2(2) CLA 1977.

• (a) spouses (inc. civil partners).

  • but: can conspire with spouse + others – R v Chrastny [1991].

• (b) children under 10.

• (c) intended victim of the crime.

Mens Rea

- Intention to agree: minimum.

• [Smith + Hogan]: intention to speak words, perform act that constitute agreement.

• difficult to distinguish MR from AR: AR requires agreement implied intention to reach agreement.

• debate: what must be agreed?

  • (1) intention to agree that offence be committed?

  • (2) intention to play a role in the crime?

- Intention that offence be committed?

• R v Anderson [1986; HoL]: only intention to agree, not that offence should in fact be committed.

  • facts: conspiracy to escape prison; d. agreed to provide equipment but claimed never intended to carry plan out + did not believe it could succeed HoL: guilty – intention to carry out irrelevant.

  • [Ld Bridge]: ‘reject construction … which would require the prosecution to prove an intention on the part of each conspirator that the criminal offence … should in fact be committed’.

  • dubious judgment: A’s attempted defence (impossibility) dealt with by s1(1)(b) anyway.

• but: subsequent cases – intention to carry out offence needed (Anderson ignored).

  • R v McPhillips [1990; CoA]: d. in IRA conspiracy to plant bomb in disco; claimed intended to give warning not guilty of conspiracy to murder.

  • R v Edwards [1991; CoA]: d. agreed to supply amphetamine but poss. did not intend to carry out agreement not guilty.

  • R v Ashton [1992; CoA]: A + W charged with conspiracy to murder; A claimed motivated by friendship for W, would not have carried out agreement not guilty.

  • Yip Chiu-Cheung v R [1994; PC]: d. agreed with undercover US drug enforcement agent to supply heroin to agent in HK to take to Australia (agent planned to actually make trip to uncover ring); d. argued agent could not be co-conspirator because of no MR guilty: agent intended to carry out crime so had MR + could be co-conspirator (irrelevant that would not be prosecuted).

    • [Ld Griffiths]: MR = intention to carry out the crime.

• current position: R v Anderson is law, but unlikely to be followed by future Supreme Court.

  • cf. Draft Criminal Code clause 48: conspiracy requires d. + at least 1 other party must have intended offence to be committed.

- Intention to take part in the course of conduct?

• R v Anderson: [Ld Bridge]: MR = d., when he entered into agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose’.

• but: broad interpretation – R v Siracusa [1990; CoA]: [O’Connor LJ]: nub of the offence of conspiracy consists of the agreement to do the unlawful act – can be active involvement or agreement that another should do it actively.

  • rationale: allows ringleaders to be guilty of conspiracy.

- Conditional intent sufficient: agreement to commit offence only if certain circs. occur – R v Jackson [1985].

- Mens Rea: summary.

• intent to agree: required.

• intent that offence be committed: probably required – R v McPhilips etc.

• intent that d. take part in offence required: possibly required – R v Anderson.

  • but: interpreted v. broadly – R v Siracusa.

Attempt

- Statutory offence: s1 Criminals Attempts Act 1981 (replacing old common law offence).

• s1(1): with intent to commit an offence … a person does an act which is more than merely preparatory to the commission of an offence.

• s1(2): even if commission of offence impossible.

• s1(3): intent – inc. if only on facts as d. believed them to be.

Actus Reus

- D. does ‘an act which is more than merely preparatory to the commission of an offence’.

• question of fact: jury decides, provided judge satisfied actions capable of being more than preparatory – s4(3) CAA 1981.

• R v Gullefer [1990]: [Ld Lane CJ]: when the merely preparatory acts come to an end and d. embarks on the crime proper or the actual commission of the offence.

  • facts: d. bet on losing greyhound; ran onto track to force race to be abandoned + reclaim stake; charged with attempted fraud CoA: not guilty – insufficient: would have had to tried to get money back from bookmaker.

• R v Geddes [1996]: d. did act which showed he actually tried to commit the offence (not just got ready, put self in position or equipped self).

• R v Tosti [1997]: preparatory act can be attempt – if not merely preparatory.

  • facts: d. + friend approached farm barn + inspected lock; later arrested + cutting equipment found in car; charged with attempted burglary, argued act merely preparatory CoA: guilty – acts preparatory but > merely preparatory.

- Application: no universal test – dep. on facts of case.

• R v Jones [1990]: d. bought guns, sawed one off, put on disguise, ambushed v. in car at v’s daughter’s school, pointed gun at v. + threatened him, v. escaped, d. charged with attempted murder CoA: guilty.

  • [Ld Taylor]: merely preparatory acts: obtaining + shortening gun, putting on disguise, going to school; more than merely preparatory acts: getting into car, taking out + pointing gun at v. with intention of killing him.

• R v Campbell [1991]: d. planned to rob post-office, approached with imitation gun + threatening note for cashier, but arrested by police just before entering CoA: not guilty – acts merely preparatory.

  • [Watkins LJ]: robbery impossible without entering post office, going to counter + making hostile act.

  • if d. has not gained place where could be in position to carry out offence: attempt unlikely.

• R v Geddes [1996]: d. lurking in boys’ lavatory in school with rucksack containing knife, rope + masking tape; charged with attempted false imprisonment CoA: not guilty – acts merely preparatory: had made preparations but had no contact with any pupil.

Mens Rea

- Intention to commit offence: s1(1) CAA 1981.

- Intention to bring about consequences required for full offence – R v Whybrow [1951]; R v Toole [1987].

• result offences: intent to achieve what was missing from full offence.

• R v Whybrow: attempted murder necessary to prove intention to kill (NOT merely cause GBH).

• R v Toole: if offence requires intention or recklessness attempted offence: intention required.

• oblique intent possible – R v Walker & Hayles [1990]: ds. threw v. from 3^rd floor balcony, charged with attempted murder jury can infer intention if d. foresaw result as virtual certainty.

- MR for elements other than act/result same as MR for full offence – A-G’s Ref (No. 3 of 1992) [1994].

• requirements: intent to achieve what was missing from full offence + other MR required for offence.

  • i.e. d. had state of mind for full offence + intended to do missing physical element.

• A-G’s Ref (No. 3 of 1992): ds. threw petrol bomb from moving car at occupied car by pavement; charged with attempted aggravated arson (s1(2) Criminal Damage Act 1971: MR = intention or recklessness as to damaging property + life, AR = damaging property) CoA: guilty – intent to damage property (missing physical element) + recklessness as to endangering life.

• application to sexual offences: missing element is sexual act attempt requirements: intention to do sexual act + lack of reasonable belief in consent (NOT intention that v. should not consent).

- Conditional intent sufficient: d. only intends to commit offence in certain conditions – A-G’s Ref (Nos. 1 & 2 of 1979) [1979].

• originally unclear: R v Husseyn: d. opened van + looked inside, found diving equipment, arrested before doing anything else, charged with attempted theft of diving equipment CoA: not guilty.

  • but: due to...