Inchoate offences
Manjida Ahamed
[email protected]
Learning Outcomes…
To understand the AR and MR of Inchoate
offences-
Encouraging and assisting offences
Conspiracy
Attempts
Introduction
There are three types of inchoate offence:
Encouraging or assisting offences: Serious
Crime Act 2007 replaced incitement with
3 new offences
Conspiracy
Attempts
Introduction
The charge - crime
Note the that D is charged
relationship with with attempting
parties etc must be
specified
The mens rea of
an inchoate
offence depends
upon the full
offence attempted
or conspired.
Encouraging or assisting offences
S.44 Intentionally encouraging or
assisting an offence
S.45 Encouraging or assisting an
offence believing it will be
committed
S.46 Encouraging or assisting
offences believing one or more
will be committed
s.44
Actus Reus
‘doing an act capable of encouraging or assisting the
commission of an offence’
Refer to S. 65 SCA 2007 (AR includes threatening, putting
pressure, seeking to inhibit the prosecution of offences, failure
to act when under a duty to act i.e omission )
Encouraging would include that which is
express or implied
Targeted at a particular person or addressed
to the world at large
Assisting e.g. providing a tool or advice to X.
s.44
Actus Reus
See notes in handbook.
S.65 (2) (a) An act capable of… includes
“taking steps to reduce the possibility of
criminal proceedings being brought in
respect of the offence.”
- is an act done prior to the commission of the
offence.
E.g. acts as a look out or intimidates potential
witnesses
S.65 (2) (b) covers also “D failing to take
reasonable steps to discharge a duty.”
Law Comm example is of security guard
failing to turn on security alarm deliberately
intending to assist X to burgle premises.
D may indirectly encourage or assist where
arrange for another D2 to do an capable of
encouraging or assisting X to commit an
offence- and D2 does that. D treated as
having done D2’s act: s.66.
Home Office notes give example of a gang
leader D instructing D2, a member of gang, to
encourage another person X to kill V.
Mens Rea
s.44: ‘intend to encourage or assist’ the
commission of an offence
s. 47 (5)(a): D must intend or be reckless as
to whether X would have the relevant MR for
that offence or
S.47 (5)(a) (iii) D’s state of mind was such
that, were he to do it, it would be done with
that fault:
- designed to cover where X lacks MR but D
would have the MR had he done the act
himself, D maybe liable. Will be an
exceptional case.
s.47 (5)(b): D is guilty under s 44 if he intends
or is reckless that the person encouraged (X)
will act in the required circumstances, or
Mens Rea
Direct intent only- not oblique intent
E.g. Supply of knife with intent X use it to kill
or offer verbal encouragement to X to commit
offence
s.45
Covers where D may not intend offence
be committed but he believes it will be
committed and his act will encourage or
assist its commission e.g. indifference or
could not care less attitude.
Actus Reus- Doing an act capable of
encouraging or assisting the commission of
an offence
Mens Rea-
Believing:
That the offence will be committed, and
That his act will encourage or assist its
commission.
s.46
Covers where D may not intend
commission of a specific offence but he
believes both one or more offences will be
committed and his act will assist or
encourage the commission of one or more
of them.
E.g. assists X with belief X will commit
one of a range of offences (see next
lecture on parties for comparison cases).
Actus Reus- Doing an act capable of
encouraging or assisting the commission of
one or more of a number of offences.
Mens Rea-
Believing:
One or more of those offences will be
committed (but has no belief as to which),
and
That his act will encourage or assist the
commission of one or more of them.
Sadique (2013)- S supplied cutting agents
knowing would assist drug dealers in the
supply of Class A or Class B drugs, but did
not know which.
CA held sufficient that D believes one of the
offences he anticipates might be committed
will be committed.
Attempt
Where D sets out to commit a crime but does
not complete it
Governed by the Criminal Attempts Act
1981 which replaces the old common law
offence
Attempt
Actus Reus
Old common law test was ‘proximity’ to the
full crime i.e. the D’s act had to be
immediately connected with the full offence.
Test looked backward from offence.
CAA 1981 S.1 (1)- test is whether the conduct
is more than merely preparatory to the
commission of the offence
Q of fact for the jury. This test looks forward
from the point of preparatory acts to see
whether acts have gone beyond preparation.
See handbook for selection of cases
e.g. Jones (1990). D’s conviction for
attempted murder upheld. CA said look at
statutory words and don’t fit previous case
law tests to new section.
Attempt
Mens Rea
Intention to bring about any
results specified in the actus
reus of the full offence
If the full offence specifies any
circumstances then D must
know or believe that they exist
MR cont’d
D must intend to commit the full offence &
intend the consequences of his act R v
Whybrow [1951] 35 Cr App R 141
For attempted murder intention to kill must be
proved not intention to cause GBH.
MR cont’d
For substantive offences with mens rea of
either intention or recklessness, only
direct intent is sufficient for attempt –
recklessness is not enough
Virtual certainty provisions (oblique
intent- Woollin) can be used to assist the
jury to determine whether D did have
intent R v Walker & Hayles (1990) 90 Cr
App R 226.
See other cases in handbook
Conspiracy
Since the Criminal Law Act 1977, most
conspiracies are statutory. There are three
residual forms of common law conspiracy that
we are not concerned with here:
Conspiracy to defraud
Conspiracy to corrupt public morals
Conspiracy to outrage public decency
Conspiracy
Actus Reus
1. Agreement-Agreement between 2 or
more people
The Ds must have passed beyond mere
negotiation and have agreed upon the
nature of the conduct
Actus Reus complete at the point of the
agreement: DPP v Nock (1978)
Others may join and become parties to it
Unnecessary for all parties to be in contact
as long as all have a common purpose
Conspiracy
2. Between two or more persons
Note there are certain groups of people that
are excluded from liability:
Spouses
Minors
Victims
Lack of mens rea- if D1 agrees with D2, who
lacks mens rea, neither is guilty since
there is no real agreement
3. Course of conduct- the agreed course of
conduct if pursued in accordance with their
intentions must amount to or involve the
commission of an offence by one of the
conspirators
Conspiracy
Object of the conspiracy
The term ‘statutory conspiracy’ refers to the
offence defined in s.1 Criminal Law Act
1977, as amended by s.5 Criminal
Attempts Act 1981
R v Ayres (1984) Lord Bridge defined
statutory conspiracy as being where the
agreement will involve the commission of
an offence by one of the parties to the
agreement
Conspiracy
Mens Rea
There must be an intention to agree on pursuing
a course of conduct, which if carried out in
accordance with their intentions, will amount
to or involve a crime.
Key cases are Anderson (1985), Siracusa (1989)
and Yip Chiu Cheung (1994)- see handbook
Conspiracy
Ds must intend any result specified in the actus
reus of the offence
If the crime specifies any circumstances, s 1 (2)
CLA 1977-at least two conspirators must know
or believe that the circumstances will exist at
the time of the agreement.
R v Saik [2006] UKHL 18
HL confirmed that D and at least one other
party must intend or know that the fact or
circumstance shall or will exist at the time
when the conduct is to take place
Impossibility & attempts
May arise from -
inadequate means
physical impossibility
and legal impossibility
Attempt- see the Criminal Attempts Act 1981
and the key cases Anderton v Ryan (1985)
and now Shivpuri (1986) is the law.
S.1(2) Criminal Attempts Act 1981 – D is
guilty of an attempt even if it is impossible to
commit the criminal act.
Impossibility & conspiracy
S.1(1)(b) Criminal Law Act 1977 – D is
guilty of conspiracy even if it is impossible
to commit the criminal act.
