Auxiliary Offences Flashcards
Baxter v HMA
It is an offence to incite another person to commit a criminal offence, intending that the principal offence be committed.
Charged of inciting another man to commit murder after a conversation regarding potential methods and the possible fee that would be paid if it was to be carried out.
No actual instruction to carry out the killing.
Accused said he never intended it to be carried out.
Court didn’t accept this.
Held it is important to have a serious intention that the crime will be committed, but not requirement to instruct that the crime be committed.
Evidence that he had previously threatened the intended victim.
• Encouraging / requesting a person to commit a crime
• Instruction to commit the crime not required
• Must be serious intention that crime will be committed
• If the offence is committed then would more likely be art and part guilt (possible to charge incitement and the completed offence)
Maxwell v HMA
Conspiracy
“[The crime of conspiracy] is constituted by the agreement of two or more persons to further or achieve a criminal purpose. A criminal purpose is one which if attempted or achieved by action on the part of an individual would itself constitute a crime by the law of Scotland. It is the criminality of the purpose and not the result which may or may not flow from the execution of the purpose which makes the crime a criminal conspiracy.”
• There are two essential ingredients: ;
i). there has to be an agreement between 2 or more persons
ii). that agreement has to be to further a criminal purpose.
Coleman v HMA
Conspiracy
A group charged with conspiring to assault some men. In furtherance of this, alleged to have equipped themselves with weapons and went to the house. Prior to this, they had met at the house of one of their girlfriend’s and made the agreement. One of the appellants wasn’t at the house when the agreement was made. When he came back, they were on their way. He was handed a baton and tagged along. On route, the appellant also was engaged in bullying some other members who didn’t want to be involved in the assaults. He argued that because he wasn’t there when the agreement was made, he couldn’t be charged with conspiracy. Court said even though he hadn’t expressly agreed, his agreement could be inferred from his actions. Unsuccessful appeal.
HM Adv v Wilson, Latta and Rooney
Conspiracy
• Acts done in pursuance of conspiracy are often crimes in themselves – potential confusion where charged together
Court decided jury could acquit the accused of the alleged conspiracy but still convict him of the crimes in pursuance of the conspiracy. Court treated the issues of conspiracy and events leading up to it separately
Sayers v HMA
Conspiracy
case tells us that the situation will be different If the alleged crimes done in pursuit of the conspiracy are the only things which make the alleged conspiracy a crime. Unlawfully acquiring firearms. Accused with trying to further the means of the organization by criminal means. Problem was that the different criminal means were either deleted from the charge or he was acquitted of them. In the absence of these various criminal means, the alleged conspiracy itself was no longer criminal. So didn’t make sense to convict him of the conspiracy. Conviction overturned.
Howitt v HMA
Conspiracy: the requirement for one or more parties
this requirement usually isn’t a problem, but it can be a problem if one or more of the alleged conspirators isn’t charged or acquitted and you are left with just one conspirator. 2 men charged with conspiring to set fire to a house and murder the inhabitants. The men were tried separately. Before the first trial, the accused plead guilty to the charge but only after the reference to conspiracy had been deleted – he didn’t conspire to murder to inhabitants, only burn the house. 2nd trial, accused found guilty of the full conspiracy. This accused said he couldn’t be convict of conspiring if the alleged co conspirator has not been proven to have done this. Appeal court didn’t accept this – held that in deciding the accused’s guilty, the fate of his co-conspirator was irrelevant and the 2nd accused could still be found guilty. This requirement is because the facts proven in each trial stand alone.
HMA v Camerons
Actus reus: Attempt
2 accused charged with attempted fraud. The charge was that they had insured a necklace for £6,500. They didn’t own this necklace.
They then falsely reported to the police that the necklace had been stolen – and they intended to use this report for a false claim on the insurance.
In the course of the evidence in the trial it was never proved that they had made a claim on the insurance.
Accused claimed that they could not be convicted of attempted fraud – they were not close enough o actually committing the crime.
HELD: it had tobe founf that there had been progression from preparation to perpetration. IT was admitted that this was a vague test. It was a question of fact for the jury in each individual case.
Morton v Henderson
Actus reus: attempt
Attempted fraud. Accused had tried to influence the outcome of a greyhound case – asked one of the owners of the greyhound to administer a drug to impair the dog’s performance.
Their request had no effect, the dog was entered into the race normally.
The accused appealed against their charge on this.
HELD: The line from preparation to perpetration had not been crossed here. The appeal was quashed – they had merely requested, rather than attempted to commit the crime.
This could have been incitement, but because it was an attempt case a different test applied.
Guthrie v Friel
Actus reus: attempt
Attempting to drive whilst under the influence of drink / drugs.
Accused was found in his car at 3am about 50 yards from the club he had been drinking in. He was unconscious, but had his seatbelt on and the engine was running.
No proof that he had tried to drive the car.
There was some evidence claiming that the accused was just intending to sleep in his car after the night out.
HELD: On appeal, the stage of perpetration had not yet been reached. If he had taken the handbrake off or something, this would have constituted perpetration.
HMA v Baxter
Involved someone charged with attempting to procure an abortion. The accused supplied abortion drugs to someone who requested an abortion. The drugs were sent in the post with instructions as to how to use them.
They were never used – the post never got there.
Originally charged.
HELD: On appeal that the charge was irrelevant – the accused had time to repent, he could try to undo the effects of what he had done.
Samuel Tumbleson
Guy poisoned someone’s food. This was the last thing the accused could have done, so he was charged with attempt.
BUT, these tests imply various things. E.g. attempted bombing. If you had your finger on the detonator, these tests imply that you could not be charged until you actually pressed the button.
Cawthorne v HMA
Wicked recklessness – you had someone who fired randomly into a room where the door was closed. No one was killed but he was prosecuted with attempted murder.
Issue on appeal – no proof that he intended to kill anyone.
HELD: he was wickedly reckless. It was also ruled that wicked recklessness also suffices as the mens rea for intended murder.
Strachan v HMA
Case of attempted murder
Accused charged with having menaced police officers with a machete
Convicted of attempted murder
Appealed saying In the absence of any evidence that he had hit them, he should be guilty of attempted murder
Court held jury were entitled to convict him of this.
Docherty v Brown
Impossibility in inchoate offences: attempts
Involved someone charged with the attempted possession of controlled drugs – he bought a number of tablets that he thought were controlled drugs, but they weren’t.
Tried to appeal against his charge arguing that he shouldn’t be charged because the tablets were not actually controlled drugs.
Full bench of high court convened.
HELD: Attempt liability involves having the relevant mens rea and an act at the stage of perpetration of the offence rather than mere preparation. These can be present even where commission of the actual offence would have been impossible. Impossibility is no defence.
Maxwell and others v HMA
Impossibility in inchoate offences: conspiracy
Impossibility is not a defence e in conspiracy
Bribe to the licensing board
Decision no longer in the hands of the licensing board
Court held it didn’t make the conspiracy charge irrelevant
