#4615 - Incohate Offences - GDL Criminal Law

When the D takes some steps towards the commission of a crime (unfinished/incomplete)

Statutory Conspiracy

• 2 types of conspiracy:

1. Statutory contrary to S 1 Criminal Law Act 1977; and

2. Common law conspiracy to:

   • Defraud

   • Corrupt public morals

   • Outrage public decency

Section 1(1) Criminal Law Act 1977:

Subject to the following provisions of this part of the Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

1. Will necessarily amount to or involve the commission of any offence, or

2. Would do so but for the existence of facts which render the commission of the offence or any of the offences impossible

He is guilty of conspiracy to commit the offence or offences in question

AR:

• Offence is complete as soon as the parties agree and will only terminate on completion by performance, abandonment or frustration

• No need for parties to have taken steps to carry out their agreement : DPP v Doot

• R v Nock - D need not have settled all the details of offence in question – but most go beyond merely discussing the offence – must have actually agreed to commit it

• R v Walker – D’s conviction quashed because it could not be proved that parties had gone beuond negotiation stage

• Certain people excluded : CLA 1977 s2(2):

1. An accused cannot conspire with a person who is his spouse at the time of the agreement

2. An accused cannot conspire with a child under 10 years old

3. An accused cannot conspire with an intended victim of the crime

• Prohibition in s2(2)(a) does not prevent the conviction of a person who conspires with their spouse and others – R v Chrastny

MR

• Difficult to discern a precise mens rea – difficult to distinguish from the AR –

1. Intention to agree

• The AR requirement that the parties agree in itself implies an intention to reach an agreement

• Two different proposals have been made – that the parties must have intention that the offence be committed OR intention to play a role in the crime

2. Intention that the offence be committed?

• HL case R v Anderson – controversial

  • Conspiracy to effect an escape from prison – D agreed to take part by providing equipment to cut through the cell bars –he argued in his defence that he never intended the plan to be carried out and that he did not believe that it could succeed

  • HL said that this was irrelevant : Lord Bridge – parliament could not have intended such a person to escape liability on the basis of lack of intent

  • ‘the necessary mens area of the crime is, in my opinion, established if and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required

  • No requirement that the D intend that the offence is committed

• However: Law Commission Consultation Paper No 183 – Conspiracy and Attempts (2007)- criticises Anderson:

1. No reason, in terms of statutory language or policy, for insisting that D must intend to play some part in implementing agreement

2. an agreement to commit an offence implies an intention that it should be committed, as section 1(1) of the 1997 Act seems to make clear

• CA seem to have ignored Lord Bridge’s dicta on numerous occasions

  • R v McPhillips: D had joined in a conspiracy to plant a bomb timed to explode on the roof of a hall at 1 am when a disco would be at its height – he claimed that unknown to his accomplices, he intended to give a warning enabling the hall to be cleared

    • ‘the guilty act is the agreement that the crime contemplate will be committed; the guilty mind is the intention that the crime will be committed’

    • Distinguished from R v Anderson – guilt already proved as he had already supplied ‘diamond lace’ to help prisoner let himself out – ‘he could be said to have agreed to help and to have actually helped in the escape and to have contemplated that, if the conspiracy went according to plan, the object would be achieved and the offence of prison breach would be committed’

    • ‘R v Anderson is not an authority for the proposition that someone who at all times intends to frustrate the commission of the crime ‘agreed upon’ is guilty of conspiracy to commit that crime or of aiding and abetting such a conspiracy’

    • ‘The appellant was not guilty of conspiracy to murder either as a principal offendor or as an accomplice because his mind did not go with his acts, but on the contrary was directed towards frustrating the conspiracy to murder’

  • R v Edwards: D agreed to supply amphetamine but it may have been that he did not intend to carry out the agreement – held that the judge had rightly directed the jury that D could not be convicted unless he intended to carry out the agreement to do so

  • R v Ashton: A and W were charged with conspiracy to murder – W recruited a to find someone ti kill C – person that A found went to the police and recorded conversations with both A and W – A said that though there was an agreement to kill C, he was motivated by friendship with W and did not intend to carry out the agreement – Court held that A was not guilty of conspiracy – without giving reasons

• The PC have also refused to follow Lord Bridge in R v Anderson:

  • Yip Chiu-Cheung v R: appellant had been convicted of conspiracy to traffic in heroin – vs common law and s4 Dangerous Drug Ordinance – conspiracy concerned an agreement btw Y and an American undercover drug enforcement agent that would meet Y in HK – plan was that Y would supply heroin to the agent who would then take it to Australia. HK authorities were aware of plan and had agreed not to preent the agent from proceeding to Australia as his plan was to identify others in the drugs ring – unfortunately the agent missed his flight to HJ and the plan was abandoned – Y argued that the agent couldn’t be a co-conspirator as didn’t have mens rea – Lord Griffiths in PC:

    • ‘the crime of conspiracy requires an agreement btw 2 or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence’

    • On this basis – even though the agent was acting ‘courageously’ – he intended to commit the offence of drug trafficking – the fact that he would not be prosecuted didn’t meant that he wouldn’t have committed the crime and thus he had the necessary mens rea and so was the appellant’s co-conspirator

3. Intention to play a part in carrying out the agreement?

• In R v Anderson – Lord Bridge, having rejected requirement of intention that the offence be carried out - suggested a different form of mens rea

  • ‘beyond the mere fact of agreement, the necessary mens area of the crime is, in my opinion, established if and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required’

• However:

  • This has been interpreted very broadly by the CA in R v Siracusa:

    • Mass importation of cannabis and heroin from Thailand and Kashmir to Canada via England – drugs were hidden in secret compartments in specially constructed furniture -D was involved in the operation and was charged with conspiracy to contravene the Customs and Excise Management Act 1979 s 170(2)(b) (conspiracy to import controlled drugs) contrary to the Criminal Law Act 1977 s1(1)

  • D was convicted and appealed

  • O’Connor LJ – ‘we think it obvious that Lord Bridge cannot have been intending that the organiser of a crime who recruited others to carry it out would not himself be guilty of conspiracy unless it can be proved that he intended to play some active part himself thereafter’

    • ‘Participation in a conspiracy is infinitely variable: it can be active or passive’

    • Consent, that is the agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity

  • Thus the judge interpreted Lord Bridge’s dicta very loosely – implication that the D has to take an active role was ignored – held that a D could intend to play an active OR a passive part in the offence and that even failing to stop the unlawful activity would be sufficient

4. Conditional Intent

• Where the parties agree that they will commit to criminal offence only if certain circumstances occur, this is sufficient to establish both the actus reus and the mens rea of conspiracy – R v Jackson

Summary:

• Probably, subject to Anderson – an intention that the offence is committed is required

• In the absence of such intention – following Anderson – an intention to play a role in the offence will be required, but this can be interpreted very broadly

Attempt

• Former common law replaced by the Criminal Attempts Act 1981 (CAA)

CAA 1981 s1:

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 an offence, he is guilty of an attempt to commit that offence

2. A person may be guilty of an attempt to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible

3. In any case where:

1. Apart from this subsection a person’s intention would not...