Inchoate Offences

Question 1

1. Attempts

Answer 1

Inchoate offences: Inchoate means unfinished or incomplete. An inchoate offence occurs when the defendant takes some steps towards committing a crime but the full offence is not committed. We have inchoate offences to prevent harm, to people or property for example. It allows the police to arrest a person for attempted criminal damage for example, before any damage actually occurs.

Question 2

1.1 When does an inchoate offence occur?

Answer 2

Merely thinking you will commit a criminal offence is not enough to be liable for an inchoate offence. The defendant’s conduct must reach a certain threshold that warrants criminal liability. If you thought about punching a colleague (a battery) but you don’t act on that thought, you won’t be criminally liable for an inchoate offence. Even if you tried to find out where that colleague is in your building and thought about how to avoid the video cameras, this preparation and planning won’t make you criminally liable for an offence. Once you take steps to do so then an inchoate offence occurs (an attempt), as the safety of your colleague is at risk.

Question 3

Attempt to commit a crime

Under s 1 Criminal Attempts Act 1981 (CAA):

Answer 3

(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 an offence, he is guilty of an attempt to commit that offence.
(2) A person may be guilty of an attempt 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.

Question 4

2 Actus reus

Answer 4

’An act which is more than merely preparatory.’ The question of whether the actions of the accused are more than merely preparatory is one of fact to be decided by the jury, providing the judge is satisfied that the actions are capable of being more than merely preparatory (s 4(3) CAA). There are no clear rules on whether conduct is merely preparatory (not an attempt) or more than merely preparatory (an attempt) so we must look to case law for guidance.

Question 5

Key case: R v Gullefer [1990] 3 All ER 82

Answer 5

Lord Lane CJ stated: An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offence.

Question 6

2.1 Examples: Not an attempt - merely preparatory

Answer 6

Key case: R v Campbell (1990) 93 Cr App R 350

Facts: The defendant was convicted of attempted robbery of a post office. He was stopped before he entered by a police officer and was found to have a threatening note and imitation gun.

Held: His appeal was allowed. His acts were seen to be merely preparatory.

Question 7

Key case: R v Geddes [1996] Crim LR 894

Answer 7

Facts: The defendant was found in a school toilet, with a large knife and rolls of tape. He was convicted of attempted false imprisonment.

Held: His appeal was allowed. As there were no school children, his action was held to be merely
preparatory.

Question 8

2.2 Examples: Attempt - more than merely preparatory

Key case: R v Jones (1990) 91 Cr App R 351

Answer 8

Facts: The defendant bought a shot gun, climbed into a car with the victim inside, pointed the gun
at the victim and said: ‘You are not going to like this’. The safety catch was on the gun, but it was unclear whether the defendant had his finger on the trigger. The victim grabbed the gun and there was a struggle. The victim managed to escape unharmed. The defendant was convicted of attempted murder and he appealed against his conviction.

Held: The judge was right to allow the case to go to the jury, and the appeal against conviction was dismissed. His acts were seen to be more than merely preparatory.

Question 9

Key case: R v Tosti [1997] Crim LR 746

Answer 9

Facts: The defendants were found examining the padlock of a door of a barn. Hidden in a hedge nearby, was some oxyacetylene equipment. Two cars were parked in the lay-by with their engines still warm. The defendants were convicted of attempted burglary. They appealed against conviction on the ground that there was no evidence upon which the jury could have found that
an attempted burglary had been committed.

Held: Their appeals were dismissed; their acts were enough to amount to more than merely preparatory.

Question 10

3 Mens rea

Answer 10

The accused must intend to bring about the consequences required for the full offence. This can be illustrated by the case of R v Whybrow [1951] 35 Cr App R 141. The mens rea of murder is intention to kill or intention to cause grievous bodily harm. Here, the charge was attempted murder and therefore it was necessary to prove that the defendant intended to kill.
Intention to cause grievous bodily harm was not enough for attempted murder.

Question 11

Key case: R v Toole [1997] EWCA Crim 2163 Judgement

Answer 11

Held: If the substantive offence has the mens rea of either intention or recklessness as to the actus
reus, to convict of the attempted offence proof of intention is required.
The charge in this case was attempted arson and no property was burnt. It was necessary to
show an intention to damage property by fire.

Question 12

3.1 Oblique intent

Answer 12

Key case: R v Walker & Hayles (1989) 90 Cr App R 226
Facts: This case was on attempted murder. The appellants threw the victim from a third-floor
balcony.

Held: The court held that the jury may (but do not necessarily have to) [find] intention where they
are satisfied that the defendant foresaw the result as a virtual certainty.

Question 13

3.2 Conditional intent

Answer 13

A conditional intention counts as an intention. So where a defendant only intends to commit an offence subject to certain condition(s), the defendant will still have the sufficient mens rea for an attempt (AG’s Ref (Nos 1 & 2 of 1979) [1980] QB 180). An example of this type of intention is where D picks up a bag and looks through it but decides that there is nothing worth taking. D could be convicted of attempted theft as they have the
intention to steal.

Question 14

3.3 Intention to achieve only what is missing from the full offence

Answer 14

What if the mens rea of the offence includes an element which does not relate to the actus reus? The mens rea for an attempt to commit this offence is then an intention to achieve that what is missing from the actus reus, plus the mens rea for the full offence. This principle applies to
attempted aggravated criminal damage. This is illustrated as follows.

Question 15

Aggravated criminal damage (full
offence)

Answer 15

Actus reus:
* To destroy or damage property belonging to another.
Mens rea:
* Intention or recklessness as to destroying or damaging property belonging to
another.
* Intention or recklessness as to
endangering life by the destruction or
damage.

Question 16

Attempted aggravated criminal
damage

Answer 16

Actus reus:
* Doing an act which is more than merely preparatory.
Mens rea:
* Intention to destroy or damage property belonging to another.
[Intention to achieve what is missing from the actus reus. D must intend to bring about the consequences required for the full offence. Recklessness is not enough for
this part of the mens rea.]
* Intention or recklessness as to
endangering life by the destruction or
damage. [Mens rea which does not relate to the actus reus. Mens rea for the full offence. Recklessness is sufficient for this part of
the mens rea.]

Question 17

Key case: Attorney General’s Reference (No 3 of 1992) [1994] 2 All ER 121

Answer 17

Facts: The respondents were in a moving car from which a lighted petrol bomb was thrown at an
occupied car, beside a pavement on which persons were standing. The bomb passed over the car and hit a wall adjacent to the pavement. The wall was not damaged. They were charged with attempted aggravated arson contrary ss 1(2) and (3) Criminal Damage Act 1971. The mens rea for the full offence is:
(a) Intention or recklessness as to damaging property by fire; and
(b) Intention or recklessness as to endangering life by the fire damage.

Question 18

Actus reus

Answer 18

The actus reus of this offence is damaging property by fire. There is no need for life to be endangered. The trial judge ruled that there was no evidence on which the jury could find an intent to endanger life so the respondents were not liable.

Question 19

Held

Answer 19

The Court of Appeal held that for an attempt to commit aggravated arson (ss 1(2) and (3) Criminal Damage Act 1971), it was only necessary to prove an intent to achieve what was missing from the full offence, together with the other mens rea required for the offence. In the present case, what was missing to prevent a conviction for the completed offence was damage to the property by fire. Therefore, for an attempt it must be shown that D had an intention to damage property by fire and the remaining state of mind required for the offence of aggravated arson – that is recklessness as to whether life was thereby endangered. It was said that another way of putting it is that the defendant had the state of mind for the full offence and they intended to do the physical element which was missing.

Question 20

4. Impossibility

Answer 20

Where a defendant sets out to commit a crime, which is in fact impossible to commit, can the
prosecution nevertheless seek D’s conviction for an attempt or will the impossibility of committing
the full offence provide a defence?
There are three main types of impossibility:
* Non-existent crime;
* Through inadequacy; and
* In fact.

Question 21

4.1 Non-existent crime

Answer 21

This arises where the accused believes that what they are doing is an offence, whereas it is in fact
lawful. You cannot turn a lawful act into an unlawful act. Therefore a prosecutor, seeking to convict a
defendant of an offence, relying on the defendant’s intent to do something else which is not in
itself a crime, will not succeed (R v Taaffe).

Question 22

Key case: R v Taaffe [1983] 2 All ER 625

Answer 22

Facts: Taaffe was caught importing illegal drugs into the United Kingdom. He thought the bag containing the drugs contained currency and he mistakenly thought that it was an offence to import this currency into the UK.

Held: Taaffe could not be convicted of an attempt to import currency into the UK, because there is no such offence.

Question 23

4.2 Impossibility through inadequacy

Answer 23

Impossibility through inadequacy arises where the crime itself is perfectly feasible, but the
defendants adopt, or seek to adopt, a method that cannot work, eg ‘poisoning’ someone with a
substance that, unknown to them is harmless, or trying to open a bombproof safe with explosives
which cannot blow it open.

Logic clearly shows that such an argument cannot succeed in any situation: a defendant who
sets out to kill should not get off simply because they choose a method that is doomed to fail.
Such a defendant will be convicted of an appropriate inchoate offence such as attempted murder.

Question 24

4.3 Impossibility in fact

Answer 24

Sections 1(2) and (3) in relation to statutory attempt have reversed the common law position on impossibility in fact. This is now no longer a defence to attempt. So, for example, if D stabs V, but V is already dead, then D will be liable for attempted murder. This is illustrated in the House of Lords case of R v Shivpuri

Question 25

Key case: R v Shivpuri [1987] AC 1

Answer 25

Facts: D was arrested with a suitcase. He admitted that it contained illegal drugs. It turned out that the contents of the suitcase were not drugs.

Held: He was convicted of attempting to knowingly be concerned in dealing with a prohibited drug contrary to s 1(1). The conviction was upheld by the House of Lords

Question 26

5. Summary

Answer 26

The actus reus element of an attempt is ‘an act which is more than merely preparatory’. The jury will decide if the defendant’s conduct was more than merely preparatory. There are no clear rules on whether conduct is merely preparatory (not an attempt) or more than merely preparatory (an
attempt).

Question 27

Not an attempt

Answer 27

Being outside a post office with a threatening note and fake gun (not attempted robbery, Campbell)

Question 28

Attempt

Answer 28

Getting into a car with a loaded gun and pointing it at the victim (attempted murder, Jones)

Question 29

Mens rea element

Answer 29

The mens rea element of an attempt is an intention to commit the full offence eg with attempted murder, the defendant must have an intention to kill. Impossibility through inadequacy and in fact is no defence to an attempt (ss 1(2) and (3) Criminal
Attempts Act 1981) eg if you try to poison someone with a substance that unknown to you is harmless you could still be criminally liable for attempted murder. However, a defendant cannot be convicted for attempting a non-existent crime (Taaffe).