#15542 - Inchoate Offences - GDL Criminal Law

Crim revision, Inchoate offences

• Conspiracy & attempt are not mutually exclusive.

Conspiracy

• Statutory—Crim Law Act 1977, s1(1)

AR—agreement (between 2 or more people) to a course of conduct that will necessarily amount to/involve an offence ... [see statute book]

• What is ‘agreement’

  • Need a meeting of minds; More than mere discussion/negotiations (R v Walker) [[way to remember: beyond point of walking away—Walker]].

  • No need to agree all details (DPP v Nock) [[way to remember: ‘can be nocked down’]].

  • No need to take steps to carry out the agreement (DPP v Doot) [[way to remember: don’t have to ‘Do-It’/’Doot’]].

• Can’t conspire, s2(2) CLA: spouses (including civil partners); children under 1; an intended victim of the crime.

  • Unless 3^rd person involved, (R v Chrastny)—spouses, 3^rd person—all guilty of conspiracy.

MR—intention to agree:

• Issue 1—intention to agree that the offence actually be committed?

  • NOR v Anderson, MR = just require that D intends to play a part

  • Re: agreed with cell mate to help him escape from prison; said the escape plan was never going to work so never intended it to actually be committed.

  • Lord Bridge: no requirement of intention that offence actually be committed; only MR is intention to play some part in agreed course of conduct.

  • [[note: impossibility is not a defence in Crim Law Act, this was the point that should have come up in Anderson to prevent him getting off, was impossible to do the escape]].

  • YES, MR = intention that offence actually be committed:

  • R v McPhillips (N Ireland CA), re member of an IRA cell, tasked with planting a bomb on roof; charged with conspiracy to murder; he had planned to phone in a warning. Lowry LJ: need intention that the offence be actually committed.

  • R v Edwards (CA): re supplying amphetamine.

  • R v Ashton (CA): re conspiracy to murder, D said didn’t intend to carry out. CA—not builty.

  • Yip Chiu-Chung v R (PC, from HK): re conspiracy to traffic heroin, one of them as undercover agent.

• Issue 2—intention to take part in the course of conduct/to play a part in carrying out the agreement

  • R v Anderson: yes, need intention to play some part in the agreed course of conduct.

  • But problem: allowed kingpins/masterminds to get away, not guilty of conspiracy.

  • R v Siracusa (CA): broad interpretation of ‘taking part in course of conduct’, eg coming up with the plan, sanctioning others to do it, etc.

• SO summary of law as it stands:

  • Probably need intent that the offence be committed is required (McPhillips; Edwards; Ashton; Yip Chiu-Chung).

  • In the absence of such intention: possibly sufficient to have intent that D take part in course of conduct (Anderson); but interpreted very broadly (Siracusa).

  • Note, Draft Criminal Code, clause 48: requires intention that the offence by committed.

• R v Jackson: Conditional intent/agreement is sufficient for AR and MR (eg ‘If I’m convicted, I want you to break my leg’).

Impossibility & conspiracy

• 3 types of impossibility:

• (1) non-existence crime (is a defence)

  • Can’t transfer MR of a non-existence crime; cannot turn a lawful act into an unlawful act.

  • R v Taafe: charged with an attempted offence; smuggling of drugs; was actually cash, he thought was a crime to smuggle cash; not guilty, no crime of importing cash.

• (2) impossibility through inadequacy (not a defence to conspiracy)

  • No authority, an assumption. Should have been raised in Anderson.

• (3) Impossibility in fact (not a defence)

  • (a) physical impossibility.

  • (b) legal impossibility: absence of a particular element of AR, eg can’t be guilty of criminal damage to own property. But could be guilty of conspiracy/attempt?

  • S1(1)(b) CLA 1977: impossibility is not a defence to conspiracy

  • S1(2) & (3) Crim Attempts Act 1981 (for attempts): impossibility in fact is no defence.

Attempt

• Crim Attempts Act 1981, s1 [[makes it slightly easier than old common law to get prosecution]].

AR = an act which is more than merely preparatory towards the commission of an offence

• Question of Fact for jury, if judge is satisfied the actions are capable of being more than preparatory (s4(3)).

• If ‘embarking on the crime proper’ (Gullefer).

• If done last possible act before crime is committed, MR is satisfied: DPP v Stonehouse

• Gone beyond ‘mere prep’:

  • R v Tosti: re attempted burglary; burglars, had stopped a short distance from farm; hid cutting equipment in a hedge; walked to door of barn, examining the lock on the door deciding how best to break in; ran off when farmer made a noise. [[could be argued, attempted burglary occurs at point of entry, so by examining lock were trying to commit the offence?]]

  • R v Jones: re attempted murder, he climbed into victim’s car; got out a loaded pistol; pointed it at victim with intention to kill him. [the merely prep acts had been obtaining he gun, shortening it, loading it, putting on disguise, going to the school].

• Merely preparatory:

  • R v Gullefer: put bet on dog; jumping on the race track was merely preparatory to committing an offence of theft, by reclaiming stake from bookmaker.

  • R v Campbell: re attempt to rob a post office; carrying an imitation gun and threatening note; hadn’t gone inside the post office when arrested. A number of acts, re robbery, remained undone: entering, made a threat.

  • R v Geddes: re attempt to imprison someone; had entered a boy’s toilet in a school, had a large knife, some rope, masking tape; but had no contact/communication with any pupil. Bingham CJ: distinction between D ‘trying to commit the offence’, and only get himself in a position/equipped himself to do so. This was the latter.

MR—intent to commit the full offence

• Intention to act: intention to bring about the consequences required for the full offence (depends on MR of full offence).

• Must intend to bring about the missing element of AR.

• Result offences, where MR is intention/reckless as to the AR, where AR matches MR:

  • If the substantive offence has MR of either intention/reckless as to the AR, to convict of attempted offence you need intention (not reckless) to bring about the required consequences (Toole; Whybrow).

  • Whybrow—MR for attempted murder = intention to kill (not to cause GBH).

  • Can use oblique intent (Walker & Hayles), re attempted murder, threw victim from 3^rd floor...