#17257 - Inchoate Offences - GDL Criminal Law

Inchoate: anticipating or preparatory to a further criminal act.

• NB there is no crime of attempted aiding or abbetting (Dunnington)

S.1(1) Criminal Attempts Act 1981

AR:

• An act which is more than merely preparatory.

  • For the jury to determine (s.4(3) CAA 1981) if there is any evidence.

  • Determined on the ‘plain, natural, ordinary meaning’ or the words (Gullefer)

  • Has the defendant “crossed the Rubicon and burnt his boats” (Stonehouse) this is a stricter test than the actual one.

• Gullefer [1990] - Gullefer placed a bet at the greyhound races. Jumped on to the track to divert the tracks to try and get the race declared null and void. Charged with attempted theft of the 18 bet.

  • Held he had not ‘embarked on the crime proper.’

  • Referenced pre-act case of Robinson (1915) – jeweller had faked a robbery. Not the conduct of an attempt – still had to make the insurance claim, not the conduct constituent elements for an attempt.

• Inconsistency in the case law.

  • R v Jones [1990] – Jones’ mistress was cheating on him. Bought shotgun, disguised himself, travelled to the scene were all considered preparatory acts. Getting into the car and pointing the gun was the line at which charged with attempted murder.

    • Crime proper.

  • R v Campbell [1991] – apprehended one yard from Post Office with an imitation pistol, fake sunglasses, threatening note.

    • Held he had not entered criminal arena and his acts were merely preparatory.

  • R v Griffin [1993] - Children had been taken into care, mother bought ferry tickets, rang school saying she intended to take them to dental appointment. Went no further.

    • Held on calling the school she had embarked on attempted kidnap crime proper.

  • AG’s Reference (No. 1 of 1992) – D dragged complainant behind hedge. Police found her with dress up, knickers nearby, and bruising near vaginal area.

    • CA held that there was no requirement of attempted rape to show that the defendant had reached the point of trying to penetrate the complainant, need merely show more than preparatory acts.

  • R v Geddes [1996] – always a question of fact and degree. D found in boys school hiding in loo with string, duct tape and knife. Held he had not move from a role of “intention, preparation and planning” into the area of “execution and implementation.” Only lying in wait.

  • R v Tosti [1997] – Ds attempted to break into a barn. Held that parking car down the road with tools in boot was merely preparatory. However, inspecting the lock (running off when seen) with oxygen cutting equipment nearby was more than preparatory.

  • Law Commission have considered reform, considering American approach of substantial step liability

MR:

• Intention to carry out the offence.

  • R v Whybrow [1951] – attempted murder, only an intention to kill will suffice, not constructive like murder.

• This amounts to an intention to bring about the full consequences of the AR (i.e. the missing pieces of the AR)

  • AGs Ref No. 3 of 1992 – attempted aggravated arson. Had thrown a petrol bomb which had hit a wall and exploded near some people. Wall was undamaged and no clear intention to endanger life.

    • In terms of destroying/damaging property, we must prove intention. But outside of that, we can apply recklessness to it.

• Oblique intent:

  • R v Walker (1989) – V dropped from third floor balcony. No direct intention.

    • The court held that the jury may (but do not necessarily have to) infer intention where they are satisfied that the defendant foresaw the result as a virtual certainly.

• Courts have tried to distinguish between the circumstances relating to the crime and the consequences

  • R v Khan (1990) – attempted rape of 16yo. Held the MRfor rape and attempted rape can be analysed in the same way: 1) an intention to have sexual intercourse and 2) knowledge of, or recklessness as to, the absence of consent.

• But this seems to no longer be the case: Attempts require a narrower MR than the principle offence.

  • R v Pace and Rogers [2014] – proceeds of crime involving scrap metal dealers who purchased stolen metal and melted it down. Held that the fact that they merely suspected that the property was stolen – not enough for an attempt, had to intend to convert stolen property.

    • Davis J stating simply that ‘“intent to commit an offence” connotes an intent to commit all elements of the offence.’

Impossibility and Attempt

• ss.1(2) - 1(3) of the Criminal Attempts Act: the fact that the full crime is physically impossible (e.g. trying to kill a dead person) or legally impossible (e.g. trying to damage your own car) is irrelevant.

• Anderton v Ryan (1985) – Woman purchased VCR believing it to be stolen, later confessed to this. In fact it was not stolen. Not liable.

  • This was overruled in following case:

• R v Shivpuri [1997] - Defendant thought that he was importing cannabis, turned out to be snuff. If the facts were as the defendant believed, then there is a crime and so there is liability

Dennis, ‘The Rationale of Conspiracy’ (1977)

• The reason we punish conspiracy is the culpable nature of the plot

• There is a greater risk to society where two or more people come and plot together.

S.1(1) of the Criminal Law Act 1977: crime to agree to pursue a course of which will necessarily amount to the commission of an offence.

• Still a crime if the final offence is in fact impossible (s.1(1)(b))

• No such thing as conspiracy per se, must be conspiracy to…

There are also three common law conspiracies:

• Conspiracy to Defraud

• Conspiracy to Corrupt Public Morals

• Conspiracy to Outrage Public Decency.

AR

• An agreement between two or more people

• This is distinct from mere negotiation/discussion

  • R v Walker [1962] – D discussed with others plan to commit a robbery (stealing with force). Conviction was quashed as prosecution had failed to demonstrate that the parties had gone beyond a mere discussion of the possibility of committing the offence.

• Must be an agreement on a particular course of conduct not just an agreement as to the final result (R v Barnard (1980))

• There is no possibility of withdrawal

  • R v El Ghazal [1986] AR of a conspiracy is there as soon as an agreement is reached. It is irrelevant if after the agreement a party decides to abandon it.

AR of Common Law Conspiracy of Corrupting Public Morals/Outraging Public Decency:

• Shaw v DPP [1962] – Ds published ladies directory of names/numbers of prostitutes. Lord Reid dissenting. Common law crime of conspiring to commit public morals – onus is on the jury.

• Knuller v DPP [1973] - Males invited readers to meet advertisers for homosexual activities. Established crime of conspiring to outrage public decency. Lord Simon: Outrage is a strong word not a weak word. We do still have to remember we live in a tolerant society. Need to ask the jury

• NB this applies to individuals, need not conspire with others:

  • R v Gibson [1991] Defendant exhibited ‘human earrings’ made of frozen human fetuses, corrupt public morals. Lord Simon: “Conduct which a jury might find to be destructive of the very fabric of society”

  • R v Hamilton (2008) – Barrister convicted of using a camera to ‘upskirt’ women in the queue. No one knew about it. But was found guilty as it is an objective question of outraging public decency.

AR of Common Law Conspiracy to Defraud

• Exists at common law even though defrauding is still a statutory crime too.

• Scott v MPC [1975] – conspiracy to deprive a person of something to which they are entitled/have a proprietary right to.

  • Still fulfils important function as statutory crimes may be hard to establish.

  • Protected by s.5(2) CLA 1977.

Parties to a Conspiracy

• Marital exemption. But this only exists between husband and wife.

  • As soon as anyone (inc a child over 10) is brought in this is lost Midland Bank v Green [1979]

• If person you conspire with is under ten then you haven’t conspired as our age of criminal responsibility is 10.

• A non-exempt party can conspire with a party exempt from the charge (e.g. parent may be exempt from the full offence of child abduction).

  • R v Burns (1984) – Father may be exempt from abduction charge, but not exempt from conspiracy charge.

• If tried at the same trial and co-conspirator acquitted, then D need only be acquitted if not doing so is inconsistent with acquittal of the other person

  • R v Roberts (1984) - Where the trial judge believes the evidence against both is relatively proportionate then the trial judge should direct the jury to convict/acquit both. If the evidence if different may leave it to the jury.

• Where the parties to a conspiracy are tried separately there is no problem at all for one party to be acquitted and another party to be convicted (R v Shannon [1975])

MR of Conspiracy

• CLA 1977 s.1(2) parties must intend or know that the offence be committed.

• Recklessness is not sufficient.

  • R v Prince (1870) Taking girl under 16 out of the lawful possession of her parents. He thought she was 19. Strictly liable for offence but could not be liable for conspiracy.

  • R v Mer (1994) A, B, and C come together. Plot for A and B to have sex with C’s wife. C said she would be excited. At that point A & B do not know of consent so lacked MR for conspiracy.

• Merely suspecting is not sufficient

  • This was initially unclear with respect to money laundering.

  • R v Saik [2006] Lord Nicholls confirmed that there can only be a conspiracy at the time of agreement where the parties can be shown to intend that the circumstances exist, or know that they will exist at the time the offence will take...