Inchoate offences

Question 1

Eagleton (1854) 5 Dears C.C. 515

attempts - more than merely preparatory - ‘last act’ doctrine

Answer 1

= only the last act constitutes an attempt.

Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are… on the statement in this case, no other act on the part of the defendant would have been required. It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt.

Question 2

Gullefer [1990] 1 W.L.R. 1063

attempts - more than merely preparatory

It is not necessary to apply the two conflicting lines of case law that precedes the 1981 Act, under which D must have reached a ‘point of no return’ in respect of the full offence, or must have done an act ‘forming part of a series of acts’ which constitute the crime

The 1981 Act provides a midway course between both different lines of authority: it does not require that D reach a point beyond retreat and ‘more than merely preparatory’ defines where the ‘series of acts’ begins

Answer 2

= no conviction
attempts ‘ begins when the merely preparatory acts come to an end and the defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular case. ‘

D climbed onto a greyhound racetrack in an attempt to stop a race
The dog on which he had placed a £18 bet was losing and he had hoped to recover his stake by stopping the race, the stewards decided not to stop the race
D was charged with attempting to steal the £18 from the bookmaker under s1(1) and s1(4) Criminal Attempts Act

Question 3

Jones [1990] 1 W.L.R. 1057

attempts - more than merely praparatory

We do not accept Mr. Farrer’s contention that section 1(1) of the Act of 1981 in effect embodies the “last act” test derived from Reg. v. Eagleton. Had Parliament intended to adopt that test, a quite different form of words could and would have been used…

Answer 3

convicted of attempt

= Clearly his actions in obtaining the gun, in shortening it, in loading it, in putting on his disguise, and in going to the school could only be regarded as preparatory acts. But, in our judgment, once he had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, there was sufficient evidence for the consideration of the jury on the charge of attempted murder. It was a matter for them to decide…

Jones’s wife left him with another. The gun had a safety lock and he had not removed it. T

Question 4

Campbell [1991] 93 Cr. App. R. 35

attempts - more than merely preparatory

contrast this narrow approach with Tosti

Answer 4

conviction quashed

‘If a person, in circumstances such as this, has not even gained the place where he could be in a position to carry out the offence, it is extremely unlikely that it could ever be said that he had performed an act which could be properly said to be an attempt.’

Was going to rob a post office. Was arrested in front of the post office. The police finds the sunglasses, a threatening note and a imitation firearm. But he had decided not to do it when he was arrested.

Question 5

Geddes (1996) 160 JP 697

Principle demonstrated = ‘there is no rule of thumb test’ (on a case by case basis)

Answer 5

D is not convicted.

Bingham draws a distinction between:
* a defendant has done an act which shows that he has actually tried to commit the offence in question
* a defendant who has only got ready or put himself in a position or equipped himself to do so.
= only the former shoul be culpable

Gone to the toilet and found various things in the backpack (rope, knife, tape). Suspected of kidnapping children.

Question 6

Tosti [1997] EWCA Crim J0128-1

attemps - more than merely preparatory.

Answer 6

= the question was effectively put to the jury
As we have said, there may be actions which are preparatory which are not merely so and which are essentially the first steps in the commission of the offence. In our judgment in this case the facts which were proved in evidence were sufficient for the judge to leave to the jury the question whether those acts were or were not merely preparatory and whether the offence had been attempted. For those reasons we would dismiss these appeals.

D Had driven in a car to a barn and examined the padlock

Question 7

MS [2021] EWCA Crim 600

attempts - more than merely preparatory

Answer 7

Put otherwise, when arrested, she was in the position of attempting to commit the offence in question, rather than simply getting ready or putting herself in a position to do so, and we have no doubt she had embarked “upon on the crime proper” (booking a ferry, forging an authorisation)

Divorced Mother of a child. Got into a relationship with a foreign national and then refused to bring the child out of the country. Orders were issued making it an offence to leave the country with the child. She booked tickets on a ferry. She had passports and was driving there though was not nearly close to the ferry(85 miles away). Were those acts more than merely preparatory

Question 9

Whybrow (1951) 35 Cr. App. R. 141

attempts - MR - intent to commit an offence

pre Act case but approved in Walker and Pac

Answer 9

attempted murder the mens rea must be intent to kill, and not merely intent to do GBH. (the MR is narrower)

Question 10

Mohan [1976] 1 Q.B.

attempts - MR - intent to commit an offence

Answer 10

The Court of Appeal in R v Mohan quashed D’s conviction, ruling that a conviction for an attempt to cause bodily harm by dangerous driving requires proof that D intended to cause harm by dangerous driving. It was not sufficient to prove that D did not care whether he hit the police officer when attempting to escape, nor that he knew it was likely.

Trying the hurt the policeman with his car.

Question 11

Pearman (1985) 80 Cr. App. R. 259

attemps - MR - intention to commit an offence

Answer 11

= For an attempt, the prosecution must prove that the defendant intended (either in the purposive or oblique sense) to commit the primary offence. Recklessness is insufficient.
This is taken to be some evidence that the approach to intention endorsed in Nedrick and Woollin should be applicable in attempts as well as in murder

During a traffic stop, the defendant drunkenly swerved his car towards police officers. This knocked one officer into his police car. Another police officer avoided a collision by jumping behind the police car.

Question 12

Walker (1990) 90 Cr. App.

attempts - MR - intention to commit an offence

To avoid any misunderstanding, we repeat that in the great majority of cases of attempted murder, as in murder, the simple direction will suffice, without any reference to foresight. In the rare case where an expanded direction is required in terms of foresight, courts should continue to use virtual certainty as the test, rather than high probability.

Answer 12

appeal dismissed

D’s dropped a man from a balcony and he survived. They appealed their conviction for attempted murder on the basis that that the trial judge was confusing foresight of death with an intention to kill and should have directed the jury in the Nedrick terms of “virtual certainty”.

Question 13

Khan [1990] 1 W.L.R. 813

attempts - MR

at 819 per Russell LJ:

‘The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely, an intention to have intercourse plus a knowledge of or recklessness* as to the woman’s absence of consent.

… the attempt does not require any different intention on the part of the accused from that for the full offence of rape.’

Answer 13

For the purposes of s1(1) Criminal Attempts Act 1981, D intends to commit a crime where D intends the act and consequences and is at least reckless about circumstances where recklessness suffices for the main offence

Here there was no penetration, but the acts were clearly more than preparatory. How can you commit an offence that merely requires recklessness?

Question 14

Attorney-General’s Reference (No 3 of 1992) [1994] 1 W.L.R. 409

attemps - MR - similar to Khan

The ‘missing element test’

“One way of analysing the situation is to say that a defendant, in order to be guilty of an attempt, must be in one of the states of mind required for the commission of the full offence and did his best, as far as he could, to supply what was missing from the offence.”
Current case

The prosecution must prove that the defendant intended to supply missing physical elements of the completed offence
The endangerment of life is not a physical element of the substantive offence but a pure mental element since it is not necessary to show that anybody’s life has been endangered; it suffices that the defendant had unjustifiably foreseen the risk of such endangerment
Hence, intention to damage property and intent or recklessness to endangerment of life

Answer 14

D acquitted
Proposed the missing element test for mens rea of attempt: to be liable for attempt D must intend a missing physical (actus reus) element of the substantive offence to be present

D’s convicted of aggarvated crimnal damage unde s 1(2) of the CDA 1971 which requires recklessness as to endangerment of lives suffices for the substantive offence of aggravated arson

Question 15

Pace and Rogers [2014] EWCA Crim 186

attemps - MR

= much harder test for the prosecution to satisfy

These arguments have led some commentators to suggest that a distinction must be drawn between the two cases. One possibility is that Pace and Rogers was a case that involved an impossible attempt: the property was not stolen and so, whatever they did, the defendants could not commit the crime. Khan was not an impossible attempt, in that, had the defendants managed it, a penetration was possible.

Answer 15

‘as a matter of ordinary language and in accordance with principle, an “intent to commit an offence” connotes an intent to commit all the elements of the offence.’

charged under s. 1 of the Criminal Attempts Act 1981 with attempting to conceal, disguise, or convert criminal property (an offence under s. 327(1) of the Proceeds of Crime Act 2002). They worked at a scrap-metal yard and had bought what they suspected was stolen metal from two men (Andy and Kinger). In fact, these were undercover police officers, who were engaging in Operation Symphony, which was designed to test whether scrap-metal yards would accept stolen metal. The metal that Andy and Kinger offered was not stolen. The trial judge rejected the defendants’ submission of no case to answer. He held that suspicion as to the criminal nature of the property was sufficient for the mens rea of the attempt. Pace and Rogers appealed.

Question 16

Anderton v Ryan [1985] 1 A.C. 560

attempts - impossible attempts

Anderton v Ryan is not the law: it was overturned very soon afterwards in the following case

Answer 16

The HoL: holds that they cannot be guilty of an attempt because it is not an offence to buy a video cassette recorder that is not stolen.

Cf. the umbrella example + other examples

Ds has bought a video recorder and they thought that it was a stolen item (when in fact it was not).

Question 17

R v Shivpuri [1987] AC 1

attempts - impossible attempts

‘I am satisfied on further consideration that the concept of “objective innocence” is incapable of sensible application in relation to the law of criminal attempts. ‘

issues with this case:
* how far should it go: believer in voodoo were to stick a pin in a figure of their enemy, believing to kill him ? Many commentators take the view that there comes a point at which the facts as the defendant believes them to be are so far from reality that the Shivpuri principle should not apply
* in Shivpuri, it was suggested that Ryan may not have been guilty of attempting to handle stolen goods because she suspected, rather than believed, that the goods were stolen and her intent was only to obtain a cheap video player. The problem is that Shivpuri could have said a similar thing: his intent was to make money; he suspected that the package contained drugs, but he did not really care about that. The line between suspicion and knowledge or intent is a fine one, and may prove problematic in future cases.

Answer 17

= The actus reus of an attempt was doing an act that was more than merely preparatory to the commission of the offence. In a case of an ‘impossible attempt’, where, on the actual facts, it was not physically possible to complete the offence, the question was whether, on the facts as the defendant believed them to be, they were doing an act that was more than merely preparatory to the commission of the full offence

Pyare Shivpuri was convicted of attempting to be knowingly concerned in dealing with heroin (a controlled drug) contrary to s. 1(1) of the Criminal Attempts Act 1981. On a visit to India, Shivpuri was approached by a man who offered to pay him £1,000 if he delivered a package of drugs. When he met the man, the defendant was arrested. He was found by police carrying a package with powdered substance and more of the substance was found in his flat. In fact, analysis showed the substance to be a vegetable material and not an illegal drug at all.

Question 18

Easom [1971] 2 Q.B. 375

attempts - conditional intent

also linked to theft

Answer 18

not convicted
= concerned the question of whether intention to steal anything which the defendant considered worth taking amounted to a present intention to steal it was decided that it did not. The court also held that Easom could not be convicted of attempted theft of those items for the same reasons.

he defendant picked up a handbag left in a cinema, rummaged through the contents and then, uninterested, replaced the handbag without having taken anything.

Question 19

Husseyn (1978) 67 Cr. App. R. 131:

attempts - conditional intent

Answer 19

To establish attempted theft, the prosecution had to prove that the defendant had a ‘present’ intention to steal the equipment when he performed the more than merely preparatory act. A conditional intention to steal something only if there are valuables is not a present intention to steal the specific property. The judge’s direction had therefore been incorrect and the conviction was unsafe.

The police spotted the defendant standing in the middle of the road by a parked van, looking up and down. Moments later, an alarm went off. At that point, the police realised that another person was tampering with the van’s back door. When a police officer approached the van, both men fled. Inside the van was some valuable equipment. convicted of attemted theft

Question 20

Attorney-General’s Reference (1 and 2 of 1979) [1980] 1 Q.B. 180

attempts - conditional intent.

compare with Husseyn and Easom

Answer 20

the Court of Appeal decided that if a defendant had a conditional intent ( i.e. intended stealing if there was anything worth stealing) he could be charged with an attempt to steal.

Question 21

AG Ref (1 of 1975) [1975] 1 Q.B. 773

complicity - accessorial liability

We approach section 8 of the Act of 1861 on the basis that the words should be given their ordinary meaning, if possible. We approach the section on the basis also that if four words are employed here, “aid, abet, counsel or procure,” the probability is that there is a difference between each of those four words and the other three, because, if there were no such difference, then Parliament would be wasting time in using four words where two or three would do.
= this is not necessarily today’s view

Answer 21

= there is no requirement of meeting of the minds
= To procure means to ‘produce by endeavour’, there need not be agreement or discussion between the person committing the offence and the person procuring it

D added alcohol to P’s drink without P knowing
P was convicted for drink driving.
The judge dismissed the case against D for procuring P’s offence as there was no shared intention between D and P

Question 22

Rahman [2008] UKHL 45

‘plain vanilla’ joint entreprise

At one stage the exact relationship of this to Section 8 of the Accessories and Abettors Act 1861 was slightly unclear, but it is of no consequence no

Answer 22

= convictions upheld
= if in the course of a joint enterprise to inflict unlawful violence a principal party killed with an intention to kill which was unknown to and unforeseen by a secondary party, the principal’s intention was relevant ( : the anwer is no)

After a history of violence a group of men, including the four defendants, chased and attacked another group including V. The weapons used in the attack included knives, metal bars, pieces of wood and baseball bats, and V was killed by deep stabs to the back. The principal attacker was probably one of those who escaped arrest. R and others were convicted of joint enterprise murder and appealed.
On appeal to the House of Lords, the question certified was whether, if in the course of a joint enterprise to inflict unlawful violence a principal party killed with an intention to kill which was unknown to and unforeseen by a secondary party, the principal’s intention was relevant: (i) to whether the killing was within the scope of a common purpose to which the secondary party was an accessory; (ii) to whether the principal’s act was fundamentally different from the act or acts which the secondary party foresaw as part of the joint enterprise.

Question 23

Chan Wing-Siu [1985] AC 168

parasitic joint liability

overruled in Jogee

Answer 23

= …a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight. (note that the threshold is really low)

Three Ds broke into the victim’s home, with two Ds killing him and one slashing his wife with knives
Ds claim that they had the purpose of reclaiming a debt that the victim owed to one of them
All three Ds were convicted of murder and wounding with intent to do grievous bodily harm
Ds appealed on the basis that Ds not only had to foresee a probable risk of the primary offence, not just a possible risk or that the risk was too remote

Question 24

Powell and English [1999] 1 A.C. 1.

‘fundamental departure’.

most of this is overruled with Jogee

Answer 24

= in these cases where the primary offender used a much more dangerous weapon than that foreseen by D2, so that crime B became a ‘fundamental departure’ from the common purpose:

Question 25

*Jogee [2016] UKSC 8

accessorial liability - simplest account of the current rules

Note that in this case, the Court failed to take into account the
[6] The purpose of section 8 [of the Accessories and Abettors Act 1861, quoted above] was to simplify the procedure for the prosecution of secondary parties. It did not alter the substance of the law governing secondary liability…

The effect of the language of section 8 was accurately summarised by the Law Commission in its report on Participating in Crime (2007) (Law Com 305), paragraph 2.21:

“Disregarding ‘procuring’, it is generally accepted that these specified modes of involvement cover two types of conduct on the part of D, namely the provision of assistance and the provision of encouragement.” …

[8] The requisite conduct element is that D2 has encouraged or assisted the commission of the offence by D1.

[9] Subject to the question whether a different rule applies to cases of parasitic accessory liability, the mental element in assisting or encouraging is an intention to assist or encourage the commission of the crime and this requires knowledge of any existing facts necessary for it to be criminal…

[92] In cases of secondary liability arising out of a prior joint criminal venture, it will also often be necessary to draw the jury’s attention to the fact that the intention to assist, and indeed the intention that the crime should be committed, may be conditional. The bank robbers who attack the bank when one or more of them is armed no doubt hope that it will not be necessary to use the guns, but it may be a perfectly proper inference that all were intending that if they met resistance the weapons should be used with the intent to do grievous bodily harm at least.

Answer 25

= The correct rule is that foresight is simply
evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper
mental element for establishing secondary liability
= Does parasitic accessorial liability still exist ? (this case seems to indicate that no)

= In ‘Crime A, Crime B’ scenarios, Jogee did away with the rule in Chan Wing-Siu (overturns the case)
= D2 must have knowledge of any facts necessary for D1’s conduct to be criminal
= on conditional intent [92] : (+Haynes[2019])

= formally D2 need not intend D1 do the crime. For example, if D2 believes V to be absent, D2 may intend to encourage D1 to kill V without intending D2 to kill V. Or D2 might be an arms supplier, as suggested below:

D was convicted for a murder that was committed by another on the basis that D had foreseen that murder would be committed as part of a criminal joint enterprise. The judge directed the jury that the appellant was guilty of murder if he took part in the attack on Mr Fyfe and realised that it was possible that Hirsi might use the knife with intent to cause serious harm.

Question 26

National Coal Board v Gamble [1959] 1 Q.B. 11

‘If one man deliberately sells to another a gun to be used for murdering a third, he may be indifferent about whether the third man lives or dies and interested only in the cash profit to be made out of the sale, but he can still be an aider and abettor. To hold otherwise would be to negative the rule that mens rea is a matter of intent only and does not depend on desire or motive.’

Answer 26

= the question of motive is irrelevant
= it was suggested that if someone gives you something that you’re lawfully entitled to require, it does not give rise to accessorial liability

Truck driver was allowed to carry an excess load of coal by an employee of the National Coal Board (D)
The truck driver was convicted of contravening the Motor Vehicles (Construction and Use) Regulations, 1955
D was tried as accessory to the offence and convicted
D appealed on the basis that it had no motive to encourage the commission of the principal offence

Question 27

Bainbridge [1960] 1 Q.B. 129

accessory libaility - suspicion

Answer 27

‘there must be not merely suspicion but knowledge that a crime of the type in question was intended, and that the equipment was bought with that in view. ‘ = the accessory must have knowledge of the intention of the principal to commit an offence of the type that was actually committed.

= D’s appeal dismissed. knowledge of the specific date and location of the crime is not required

A bank was broken into by means of oxygen cutting equipment, sold by D
D was charged with being an accessory
D admitted that he had suspected that the equipment was wanted for something illegal but denied that he had knowledge that the equipment was to be used for any such purpose as it was used.

Question 28

Bourne (1952) 36 Cr. App. R. 125

accessory liability- the innocent agent doctrine

see also Cogan and Leak [1976] 1 Q.B. 217
Leak (D1) forced his wife (V) to have sex with his friend, Cogan (D2). D2 was acquitted on the basis that he genuinely believed V to have consented. D1 was convicted of aiding and abetting rape and appealed for acquittal = appeal dismissed

Answer 28

= The fact that D1’s liability was excused under duress was therefore irrelevant to D2’s. It was also irrelevant that he was not present when the offence was committed.
= Bourne was nonetheless convicted of the offence as having aided, abetted, counselled, or procured it. Here the offence was completed and Bourne was liable.

The defendant was convicted of aiding and abetting his wife to commit buggery (a now defunct offence) with a dog after he excited the animal and coerced his wife into the sex act. The defendant appealed his conviction on two grounds. The first was that he was not present at the time of the sex act. The second was that his wife was not guilty of any criminal offence, since she had the defence of duress, and it is not possible to aid and abet a crime where the principal is not guilty.

Question 29

Gnango [2011] UKSC 59

accessory liability - the victim’s fault )-

limits the Tyrell rule: in R v Tyrrell…(= in that case they held that the intended victim could not be convicted)

Answer 29

= conviction upheld
= a victim can be an accessory of a crime of which they are the intended victim

woman was walking through a car park when she was shot in the head and killed. The shot was fired in an exchange of fire in the car park between two gunmen, ‘B’ and Mr Gnango, neither of whom had been aiming at Magda. They had been shooting at each other. The single bullet to Magda’s head had come from B’s and not Mr Gnango’s gun. B was clearly
guilty of murder under the doctrine of ‘transferred malice’.
Mr Gnango was charged with and convicted of murder. On his appeal, the Court of Appeal overturned his conviction. The Supreme Court was asked the following question: “If D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause GBH to the other and each foreseeing that the other has the reciprocal intention, and if D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V?”

Question 30

The rule in Gillick’s case

The case is an important one dealing with the competence of children to obtain treatment and advice without parental consent. One interpretation of Gillick was that the doctor lacked intention, the other was as explained in Powell:
*I would first refer to the rejection of another argument advanced … to the effect that whether or not a doctor who gives contraceptive advice or treatment to a girl under the age of 16 years could be guilty of aiding and abetting the commission of unlawful sexual intercourse would depend on his intention. The Court of Appeal rejected this argument in this case on the grounds that Gillick was a case where there was a civil claim for a declaration and the situations considered were remote from a common enterprise culminating in murder. My Lords, I agree, and I consider that a doctor exercising bona fide his clinical judgment cannot be regarded as engaging in a joint criminal enterprise with the girl. *

Answer 30

= not convicted

doctor helping a child obtain contraception

Question 31

see Becerra (1975)

withdrawal - complicity

Answer 31

withdrawal might negate criminal liability

where running off and shouting ‘Let’s go’ were not sufficient).

Question 32

R v N [2019] EWCA Crim 2280

post jogee case - complicity

3 example situations:
(1) If the person’s presence assists P in the commission of the crime. In R v N, the principals might have found it easier to attack the victim if the defendant was willing to help if necessary. For example, they did not need to check if other people might intervene or worry about being overpowered by the victim. If the person’s presence effectively encourages P, then this may amount to being an accessory, but only if the accomplice is aware that P is encouraged by their presence. ( ex. Jogee)

(3) If under the normal law on omissions you are under a duty to protect a person in peril and you fail to do so.

(4) Where a person has a legal power to intervene to prevent a crime and fails to do so they may be responsible as an accessory.

Answer 32

you can have accessorial liability for an omission if the defendant intended “by his presence to help or encourage the others to commit the crime by either giving moral support to them or by contributing to the force of numbers involved”.

N was driving a car with two other people inside. The two others got out of the car and attacked the victim with a knife. The prosecution claimed that N and the two others were part of the ‘Anyone Can Go’ gang and that the attack was on members of a rival gang. N claimed that he was not part of the attack and did not know that the two others were going to attack anyone. The key issue on appeal was whether the judge had given the correct direction on when a person present at an attack, but not part of it, can be an accomplice.