1.3 Incomplete Offences

Question 1

When may the defendants conduct be dealt with using incomplete offences?

Answer 1

There are circumstances where defendants are interrupted or frustrated in their efforts to commit an offence, perhaps as a result of police intervention or as a result of things not going as the defendants had hoped.

Question 2

Can you conspire, aid or abet an incomplete offence?

Answer 2

No-There are, as ever, limited exceptions to this rule.

It should be noted that most incomplete offencescannotbe mixed, and that mostcannotbe attempted.

Question 3

What does S.44 The Serious Crime Act 2007 state?

Answer 3

(1)
A person commits an offence if—

(a)
he does an act capable of encouraging or assisting in the commission of an offence; and

(b)
he intends to encourage or assist its commission.

(2)
But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.

Question 4

Explain the Offence- Intentionally Encouraging or Assisting an Offence—Serious Crime Act 2007, s. 44?

Answer 4

• Triable in the same way as the anticipated offence
• Where the anticipated offence is murder, the offence is punishable by life imprisonment
• In any other case, a person is liable to any penalty for which he/she would be liable on conviction of the anticipated offence

Section 44 involves the defendant intentionally encouraging or assisting an offence. To commit the offence, the defendant must actually do an act capable of encouraging or assisting the commission of an offence and intend to encourage or assist in its commission.

Question 5

Provide an example of Section 44 The Serious Crime Act 2007?

Answer 5

D might supply P with a weapon with the intent that P will use it to kill or seriously injure another person. Alternatively, D might simply offer verbal encouragement to P to commit the offence.

Question 6

What does The Serious Crime Act 2007, s. 45 states?

Answer 6

A person commits an offence if—

(a)
he does an act capable of encouraging or assisting in the commission of an offence; and

(b)
he believes—

(i)
that the offence will be committed; and

(ii)
that his act will encourage or assist its commission.

Question 7

Explain the offence Offence- Encouraging or Assisting an Offence Believing it will be Committed—Serious Crime Act 2007, s. 45?

Answer 7

• Triable in the same way as the anticipated offence
• Where the anticipated offence is murder, the offence is punishable by life imprisonment
• In any other case, a person is liable to any penalty for which he/she would be liable on conviction of the anticipated offence

This covers the situation where the defendant may not intend that a particular offence is committed, but he/she believes both that it will be committed and that his/her act will encourage its commission. For example, D supplies a weapon to P believing P is going to commit murder with the weapon but being quite indifferent as to whether or not P will do so as it is D’s sole concern to make a profit from the sale of the weapon.

Question 8

What does S.46 The Serious Crime Act 2007 state?

Answer 8

(1)
A person commits an offence if—

(a)
he does an act capable of encouraging or assisting the commission of one or more of a number of offences: and

(b)
he believes—

(i)
that one or more of those offences will be committed (but has no belief as to which); and

(ii)
that his act will encourage or assist the commission of one or more of them.

(2)
It is immaterial for the purposes of subsection (1)(b)(ii) whether a person has any belief as to which offence will be encouraged or assisted.

Question 9

Explain Offence Encouraging or Assisting Offences Believing One or More will be Committed—Serious Crime Act 2007, s. 46?

Answer 9

• Triable on indictment
• Where the reference offence is murder, the offence is punishable with life imprisonment
• In any other case, a person is liable to any penalty for which he he/she would be liable on conviction of the reference offence

This covers a situation where D may not intend that a particular offence is committed but believes that one or more offences will be committed and that his/her act will encourage or assist the commission of one or more of those offences.

Question 10

Explain an ‘ACT’ in relation to Section 46 Serious Crime Act 2007?

Answer 10

An ‘act’ may take a number of different forms, including a course of conduct or a failure to discharge a duty. It includes threatening another person or putting pressure on another person to commit the offence (s. 65).

Question 11

What of the situation where, rather than approaching others, an undercover police officer is approached to take part in a proposed offence?

Answer 11

In relation to this activity, s. 49(1) would still apply as there is no need for the person encouraged to have any intention of going on to commit the offence. In a case involving incitement (the predecessor of these offences), the Divisional Court held that there is no requirement for ‘parity ofmens rea’ between the parties (DPPvArmstrong[2000] Crim LR 379). In that case, the defendant had approached an undercover police officer asking him to supply child pornography. At his trial, the defendant argued that as the officer in reality had no intention of supplying the pornography, there was no offence of incitement. On appeal by the prosecutor, the Divisional Court held that incitement, like conspiracies and attempts, was an auxiliary offence where criminal liability was attributed to the defendant where the full offence had not been committed. Consequently, the intent of the person incited (in this case, an undercover police officer) was irrelevant.

Question 12

Can A person can be convicted of more than one of these offences (s. 44, 45 or 46) in relation to the same act (s. 49(3))?

Answer 12

Yes.

Question 13

What is Section 50 Serious Crime Act 2007?

Answer 13

Section 50 of the Act sets out that it will be a defence to the offences under ss. 44, 45 and 46 if the person charged acted reasonably; that is, in the circumstances he/she was aware of, or in the circumstances he/she reasonably believed existed, it was reasonable to act as he/she did.

Question 14

What is Section 51 Serious Crime Act 2007?

Answer 14

Section 51 limits liability by setting out in statute the common law exception established inRvTyrrell[1894] 1 QB 710. A person cannot be guilty of the offences in ss. 44, 45 and 46 if, in relation to an offence that is a ‘protective’ offence, the person who does the act capable of encouraging or assisting that offence falls within the category of persons that offence was designed to protect and would be considered as the victim.

Question 15

Do the offences under ss. 44, 45 and 46 apply to the offence of corporate manslaughter? Yes or no?

Answer 15

No.

Question 16

What can Conspiracies be divided into?

Answer 16

Statutory

Common Law

Question 17

What does S.1 The Criminal Law Act 1977 state?

Answer 17

(1)
Subject to the following provisions of this Part of this 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—

(a)
will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b)
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.

Question 18

Explain the Offence- Statutory Conspiracy—Criminal Law Act 1977, s. 1?

Answer 18

• Triable on indictment
• Where conspiracy is to commit murder, an offence punishable by life imprisonment or any indictable offence punishable with imprisonment where no maximum term is specified—life imprisonment
• In other cases, sentence is the same as for completed offence

A charge of conspiracy can be brought in respect of an agreement to commit indictable or summary offences. Conspiracy is triable only on indictment even if it relates to a summary offence (in which case the consent of the DPP will be required). Offences of conspiracy are committed at the time of the agreement; it is immaterial whether or not the substantive offence is ever carried out.

Question 19

Explain ‘AGREEING WITH ANOTHER’ in relation to Offence- Statutory Conspiracy—Criminal Law Act 1977, s. 1?

Answer 19

For there to be a conspiracy, there must be an agreement—a ‘meeting of minds’. Therefore there must be at least two people (two minds) involved. Consequently, A cannot be guilty of a conspiracy with B (if B is the only other party to the agreement) if B intends to frustrate or sabotage it; there would not be a ‘meeting of minds’ in terms of an agreement to carry out an offence.

Each conspirator must be aware of the overall common purpose to which they all attach themselves. If one conspirator enters into separate agreements with different people, each agreement is a separate conspiracy (R v Griffiths [1966] 1 QB 589).

Question 20

Can A person be convicted of conspiracy even if the actual identity of the other conspirators is unknown?

Answer 20

Yes. (as to the affect of the acquittal of one party to a conspiracy on the other parties, see the Criminal Law Act 1977, s. 5(8)).

Question 21

A defendantcannotbe convicted of a statutory conspiracy if the only other party to the agreement is?

Answer 21

• his/her spouse or civil partner;
• a person under 10 years of age;
• the intended victim (Criminal Law Act 1977, s. 2(2)).

Question 22

What does Conspiracy to defraud involve?

Answer 22

. . . an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would or might be entitled [or] an agreement by two or more by dishonesty to injure some proprietary right [of the victim] . . . 

(Scott v Metropolitan Police Commissioner [1975] AC 819)

Question 23

Explain Offence Conspiracy to Defraud—Common Law?

Answer 23

• Triable on indictment
• 10 years’ imprisonment and/or a fine

You must show intent to defraud a victim (R v Hollinshead [1985] AC 975).

You must also show that a defendant was dishonest as set out in Barlow Clowes and Royal Brunei Airlines (see para. 1.14.2.3).

Example- Buffet car staff selling their own home-made sandwiches on British Rail trains thereby depriving the company of the opportunity to sell their own products (R v Cooke [1986] AC 909).

Question 24

What does S.1 The Criminal Attempts Act 1981 state?

Answer 24

(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 the offence, he is guilty of attempting to commit the offence.
(2) A person may be guilty of attempting 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—

(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention would be so regarded, then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.
(4) This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than—
(a) conspiracy (at common law or under section 1 of the Criminal Law Act 1977 or any other enactment);
(b) aiding, abetting, counselling, procuring or suborning the commission of an offence;
(c) an offence under section 2(1) of the Suicide Act 1961 (c 60) (encouraging or assisting suicide);
(d) offences under section 4(1) (assisting offenders) or 5(1) (accepting or agreeing to accept consideration for not disclosing information about a relevant offence) of the Criminal Law Act 1967.

Question 25

Explain S.1 The criminal Attempts Act 1981?

Answer 25

Most attempts at committing criminal offences will be governed by s. 1. Although some statutory exceptions apply, the sentence generally for such attempts will be:

• for murder—life imprisonment;
• for indictable offences—the same maximum penalty as the substantive offence;
• for either way offences—the same maximum penalty as the substantive offence when tried summarily.

If the attempted offence is triable summarily only, it cannot be an offence under s. 1. However, if the only reason the substantive offence is triable summarily is because of a statutory limit imposed in some cases (e.g. in cases of low-value shoplifting (see chapter 1.13) or criminal damage to property of a low value (see chapter 1.15)), the offence can be attempted.

If the offence attempted is triable only on indictment, the attempt will be triable only on indictment. Similarly, if the offence attempted is an ‘either way’ offence, so too will the attempt be triable either way (s. 4(1)).

Question 26

In relation to Section 1 The Criminal Attempts Act 1981 explain ‘An Act which is More than Merely Preparatory?’

Answer 26

A defendant’s actions must be shown to have gone beyond mere preparation towards the commission of the substantive offence. Whether the defendant did or did not go beyond that point will be a question of fact for the jury/magistrate(s).

Question 27

In relation to Section 1 The Criminal Attempts Act 1981 explain ‘Mens Rea for Attempt?’

Answer 27

To prove an ‘attempt’ you must show anintentionon the part of the defendant to commit the substantive offence.

This requirement means a higher level or degree ofmens reamay be required to prove an attempt than for the substantive offence. For instance, themens rearequired to prove an offence of murder is the intention to killorcause grievous bodily harm, whereas themens reafor attempted murder is nothing less than anintentto kill (RvWhybrow(1951) 35 Cr App R 141).

In proving an ‘attempt’ it is enough to show that defendants were in one of the states of mind required for the substantive offence and that they did their best, so far as they were able, to do what was necessary for the commission of the full offence (Attorney-General’s Reference (No. 3 of 1992)[1994] 1 WLR 409).

Question 28

Impossibility is dealt with by s. 1(3) of the Criminal Attempts Act 1981 and its interpretation through the courts. Provide an example?

Clue: If a person tries to handle goods which are not in fact stolen, the following rules would apply:

Answer 28

A defendant couldnotbe guilty of encouraging another or of common law conspiracy to defraud in these circumstances. Thephysicalimpossibility (the goods are not actually stolen) of what the defendant sought to do would preclude such a charge.

A defendantcouldbe guilty of a statutory conspiracy with another to handle ‘stolen’ goods and also of attempting to handle ‘stolen’ goods under these circumstances. The physical impossibility would not preclude such charges as a result of the Criminal Attempts Act 1981 and the House of Lords’ decision inRvShivpuri[1987] AC 1 (you can conspire and/or attempt to commit the impossible). The only form of impossibility which would preclude liability under the Criminal Attempts Act 1981 or for a statutory conspiracy would be thelegalimpossibility.