Inchoate Offences

Question 1

Define inchoate

Answer 1

Incomplete

Question 2

What is meant by ‘attempted x’

Answer 2

D is criminalised for attempting x

Question 3

What is meant by ‘conspiracy to x’

Answer 3

D is criminalised for agreeing with another to commit x

Question 4

What is meant by ‘assisting or encouraging x’

Answer 4

D is criminalised for assisting or encouraging P to commit x (do not confuse with aiding and abetting = participation)

Question 5

Define ‘Attempt’ - as per the statute

Answer 5

Criminal Attempts Act 1981 s. 1(1): if, with intent to commit an offence to which this section applies, a person does an act which is more that merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence

Question 6

Actus Reus of ‘attempts’

Answer 6

An act which is more than merely preparatory to the commission of an [indictable] offence.

Question 7

What are the 3 tests for the AR for ‘attempts’

Answer 7

1) Last Act Test:
R v Gullefer [1990]: ‘embarked on the crime proper’
R v Jones [1990]: ‘the last act which lay in his power towards the commission of the offence’
R v Stonehouse [1978]: ‘where D has crossed the Rubicon and burned their boats’

2) Series of the Acts Test
If D’s acts were part of a series which would result in the commission of the offence if not interrupted = incomplete attempt

3) Criminal Attempts Act 1981 Test: More than merely preparatory acts: sufficient evidence of attempt. A midway between 1 and 2?

Question 8

Concerns about the tests for AR of Attempts

Answer 8

1) Is the AR of attempt applied too narrowly?

2) Are the tests applied inconsistently?

Question 9

Define Legal Impossibility in regard to attempts

Answer 9

D believes her / his actions amount to a crime, when it doesn’t (e.g. act not criminal) - no attempt

Question 10

Define Factual Impossibility in regard to attempts

Answer 10

D tries to commit a crime through inadequate / insufficient means (e.g. gun not loaded) - always an attempt

Question 11

Define Impossible Attempts regarding attempts - as per the statute

Answer 11

Criminal Attempts Act 1981, s. 1(2): A person may br guilty of attempting to commit and offence to which this section applies even though the facts are such that the commission of the offence is impossible

Question 12

Mens Rea of Attempts

Answer 12

Criminal Attempts Act 1981, s. 1(1): intent to commit the full offence (look at notes for more on MR)

Question 13

Define Conspiracy

Answer 13

Where 2 or more people agree to commit an offence

Question 14

Define ‘statutory conspiracy’

Answer 14

s. 1 Criminal Law Act 1977 (as amended by s. 5 of the Criminal Attempts Act 1981):
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 parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any offences impossible

AR: conduct, circumstance and result
MR: intention to pursue x2, ulterior MR x2 (meeting of minds)

Question 15

Actus Reus of Statutory Conspiracy

Answer 15

Need to prove that the parties have reached an agreement to a course of conduct

Question 16

Who cannot be parties to a conspiracy

Answer 16

1) An agreement only between husband and wife or between civil partners is not a conspiracy (CLA 1977, s. 2(2)(a))
2) An agreement between a person and a person under the age of criminal responsibility is not a conspiracy (CLA 1977 s. 2(2)(b))
3) An agreement between D and the intended victim is not a conspiracy (CLA 1977, s. 2(2)(c))

Question 17

Define ‘imprecise agreement’

Answer 17

one must agree to the offence, do not need details

Question 18

Define ‘conditional agreement’

Answer 18

satisfies AR, e.g., agree to rob the bank if the ‘coast is clear’

Question 19

Define ‘impossible agreement’

Answer 19

s. 1(1)(b) CLA 1977 (factual: yes, legal: no)

Question 20

Mens Rea for Statutory Conspiracy

Answer 20

s. 1 CLA 1977: the parties intent to do the act which is required for the offence, and intend or know that the circumstances within the actus reus exist. Intention that the plan will be carried out.

Question 21

Define ‘inchoate liability’ - in regard to assisting or encouraging

Answer 21

Liability for the encouragement. It does not matter whether P does kill V (Serious Crime Act 2007)

Question 22

Define ‘derivative liability’ - in regard to assisting or encouraging

Answer 22

D is only liable if P does kill V (Accessories and Abettors Act 1861). D’s liability depends on what P does.

Question 23

What are the inchoate offences under the Serious Crime Act 2007

Answer 23

1) s. 44 intentionally encouraging or assisting an offence
2) s. 45 encouraging or assisting an offence believing it will be committed
3) s. 46 encouraging or assisting offences believing one or more will be committed
4) s. 47 on mens rea

Question 24

Define the offence of Intentionally encouraging or assisting an offence - as per the statute

Answer 24

s. 44, Serious Crime Act 2007:
(1) A person commits an offence if -
(a) he does an act capable of encouraging or assisting 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 25

What is the Ulterior Mens Rea under s. 47 Serious Crime Act 2007

Answer 25

(5) In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence -

(a) if the offence is one requiring proof of fault, it must be proved that -
(i) D believed that, were the act to be done, it would be done with that fault
(ii) D was reckless as to whether or not it would be done with that fault; or
(iii) D’s state of mind was such that, were he to do it, it would be done with that fault and

(b) If the offence is one requiring proof of particular circumstances or consequences (or both), it must be proved that -
(i) D believed that, were the act to be done, it would be done in those circumstances or with those consequences, or
(ii) D was reckless as to whether or to it would be done in those circumstances or with those consequences

Question 26

Define the offence of encouraging or assisting an offence believing it will be committed

Answer 26

s. 45 Serious Crime Act 2007:
(1) A person commits an offence if -
(a) He does an act capable of encouraging or assisting the commission of an offence; and
(b) He believes -
(i) The the offence will be committed; and
(ii) That his act will encourage or assist its commission

Situation: where D believed P will carry out the conduct element, but doesn’t intent / want P to do it. D sells P a gun, believing P will use it to kill someone, but not intending her to do so.

Question 27

Define the offence of encouraging or assisting offences believing one or more will be committed - as per the statute

Answer 27

s. 46 Serious Crime Act 2007:
(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 these offences will be committed (but has no belief as to which); and
(ii) That his act will encourage or assist the commission or one or more of them

Situation: D sells P a gun, believing she will (or may)use it to do something criminal with it.

Question 28

Define the ‘defence of acting reasonably’

Answer 28

s. 50 Serious Crime Act 2007
D is not guilty of the offences (s. 44 - s. 47) if she / he can prove that she / he either knew or reasonably believed certain circumstances existed, and that it was reasonable for her/ him to act as she / he did in those circumstances as she / he believed them to be

Question 29

Define the ‘defence when D assists or encourages where she is the intended victim’

Answer 29

e.g. D (12) encourages P (16) to have sex with her - D has a defence.

Question 30

What is the max. penalty for inchoate offences

Answer 30

The penalty for the anticipated offence (life imprisonment if murder)