#3595 - Inchoate Offences - Criminal Law

Inchoate offences are ones that seek to deal with defendants who have taken steps towards the commission of an offence but who have no (yet) committed it.

• Inchoate = just begun/undeveloped.

• Note that the offence of incitement was abolished under the Serious Crime Act 2007.

• The offences are parasitic – they do not exist independent of a substantive crime, but that crime need not exist e.g. conspiracy to commit X.

Rationale for inchoate offences:

• Culpability – evident moral culpability.

• Potential harm – enough to intervene.

• State intervention at an early stage – public policy, enabling preventative measures from substantive crimes being committed.

• Ease of proof – often easy to prove because proof of s substantive crime can be difficult.

  ATTEMPT

Governed by s.1(1) Criminal Attempts Act 1981.

AR – D has done an act which is more than merely preparatory to the commission of the substantive offence.

MR – intention to commit the substantive offence. This can be more complicated where the crime has a strong circumstance requirement – in these cases, the offence will be committed if D is reckless to the circumstances, provided recklessness to circumstances is the requirement to commit the full offence.

Mens Rea

Key MR element is intent to produce the AR. In constructive crimes like murder, the intent to inflict GBH requirement will not suffice for the attempt.

The meaning of intent is governed by Pearlman and is the same as it is in the rest of the criminal/common law.

The circumstance debate:

Subjectivists argue that the attempt should have the same MR requirement as the offence proper. Objectivists think there should be an intention, to make up for the lower level of harm in the attempt.

Recklessness as to circumstantial aspects of the AR can sometimes be sufficient for an attempt. This is governed by two key cases:

• Khan – Ds were charged with attempted rape of a 16-year-old girl. They met at a disco and went to a house. Ds attempted, unsuccessfully, to have sex with the girl. The circumstantial element of the case regarded the consent of the girl. The trial judge directed that if Ds were reckless as to whether V would have consented, they could convict. This included a ‘could not care less’ approach. They were convicted. They appealed on the basis that the judge misdirected, and knowledge or intent regarding non-consent was required to convict.

  • Lord Justice Russell – a rape conviction can be secured on the basis of recklessness as to consent, therefore the attempted offence should be no different. Recklessness does not arise in the physical act, but in the mental state. The only different between rape and attempted rape is that intercourse takes place in one and not the other.

  • Note that Khan was decided before the SOA 2003 and consent laws are now more complex. Perhaps we should ask if the offence had been committed, what would D’s state of mind have been?

• AG’s Ref (No 3 of ’92) – Ds were charged of attempted aggravated arson. They threw petrol bombs at a car in which people were sitting. They missed and hit a wall. The judge, failing to convict, said that it had to be clear that Ds intended to endanger lives. AG appealed to the CoA:

  • Schiemann J – One way of thinking about it is that D was in a relevant state of mind to commit the full offence and did his best to supply what was missing from the completion of the offence. The recklessness in the offence did not apply to the damage to property, but to the endangerment of life. If D intended to damage property and was reckless as to the endangerment of life, he could be convicted. What was missing in Khan was sexual intercourse. What was missing in this case was damage to property – the mental state had everything necessary for a guilty verdict.

Some interpretations of MR:

• Recklessness as to circumstances but not consequences as was the case in Khan etc.

• Recklessness to circumstances or consequences test – reckless to either will suffice. This is interesting in the context of AG’s Ref, because the endangerment of lives could be circumstance of consequence.

• The missing element test – D must intend to supply the missing element of the offence. In Khan the missing element was sexual intercourse – if that had happened the full offence of rape would have been committed. Failure to provide rendered the attempt fulfilled.

  • On the facts of Khan, these three approaches would produce the same result. But they wouldn’t always.

    Conditional intent:

D intends to commit a crime but only in certain circumstance e.g. if he finds anything valuable after getting into the house.

In Husseyn, D was charged with attempting to steal sub-aqua equipment after opening a bag to see if there was anything worth stealing in it. The correct charge would be attempting to steal ‘some or all of the contents of a holdall’; Smith and Hogan suggest ‘attempting to steal from a holdall’.

The authority for this comes from AG’s Ref Nos. 1 and 2 of ’79, which made clear that if the indictment was drafted carefully, conditional intent could suffice.

Actus Reus

Doing an act which is more than merely preparatory to the commission of the substantive offence.

There are different views of when liability should arise:

• Last act – criminal liability does not arise until the last moment

• Unequivocable act – unequivocally demonstrates that D intends to commit the crime.

• Substantial step test – requires proof that D has not simply started the plan but is significantly down the path to committing the offence.

• Dangerous proximity – requires proof that D is proximately close to committing the offence

• More than merely preparatory – difference between preparation and embarking on the offence proper.

• First act test – D has done something. Most view this as too harsh.

Clarkson - Where we draw the line depends on what the underlying rationale for the offence should be, and how serious we want to make the offence. Some of the rationale for inchoate offences is discussed above. Clarkson suggests that the primary rationale for a reformulated test should be punishing those who consider to be morally similar to completers.

‘Merely’ is important – some preparation is clearly permitted, but it is difficult to establish where to draw the line.

Judicial direction is limited and it is a matter of fact to be decided on a case by base basis – the words are to be given their normal meaning.

• Geddes – D entered a boys’ toilet in a school. He had a cider can, a knife, some rope and a roll of masking tape. The prosecution claimed he intended to kidnap a boy. He argued that none of his actions had been more than merely preparatory. He was convicted and appealed:

  • Bingham – referred to the case of Campbell where a man’s appeal had been allowed for attempted robbery after he had been standing shiftily outside a post office and was found to have a note demanding money on his person. Common sense tells us that he did not attempt to rob that post office – his acts had been merely preparatory. The same was true in this case and D’s appeal was allowed – no attempted kidnap.

Some points that may be inferred from previous case law:

• If the last act has been done before the commission of the offence, the attempt has been made.

• Often the last act will not need to arise before the offence has been committed and there may be several steps left. Judges have described the AR as ‘on the job’ (Osborn) and ‘embarks on the crime proper’ (Gullefer)

• In violent crimes, unless face to face with the victim, it is unlikely the attempt will have been fulfilled (except, for example, planting a bomb or something).

The Act suggests that an attempt cannot be committed by omission, but we can imagine a situation in which a mother watches her child drowning before a rescuer comes at the last minute. The mother would be criminally liable if the death occurred, so why not for the attempt?

NOTE: you can still be convicted of an attempt even if you were successful in committing the offence.

What cannot be attempted?

Conspiracy

Aiding, abetting, counselling or procuring.

Summary only offences.

Manslaughter

Impossibility

D attempts to commit an offence which he cannot complete. Subjectivists would support holding them liable because they are morally blameworthy, but the situation tends to be less straightforward.

Legal impossibility:

• D believes his act is illegal but it is not.

• Taaffe – D believed he was importing foreign currency into the country. He believed that it was illegal to important foreign currency, which it was not. He could therefore not be convicted of the attempt because there was no substantive offence in the first place.

Impossibility through ineptitude:

• D attempts to commit a crime but fails e.g. not putting enough poison in someone’s tea. He is undoubtedly guilty.

Physical impossibility:

• D tries to commit a crime that cannot physically be committed e.g. killing a dead person.

• This is governed by s.1(2) and (3) of the Criminal Attempts Act 1981. The facts are to be taken as D believed them – if he believed he could shoot someone with a carrot, he could be guilty of attempted murder.

• Shivpuri – D confessed to dealing illegal drugs after being arrested by a customs officer. When his suitcase was inspected it was found that the material was snuff and vegetable matter, not drugs. He was convicted but appealed on the basis that he did not have illegal drugs in his possession. HoL dismissed his appeal on the basis that he thought he was committing an offence with what he had and there was...