Inchoate Offences

Question 1

Race Relations Board v Applin:

Answer 1

held that the AR of incitement requires proof that A encouraged, persuaded, pressured or threatened another to engage in illegal conduct/commit a crime.

Question 2

Marlow:

Answer 2

A authored a book on the cultivation & production of Cannabis. Approximately 500 books were sold and several purchasers followed the book’s instructions.
A convicted, inter alia, of incitement to commit an offence contrary to S 19 of the Misuse of Drugs Act 1971. A, on appeal argued there existed no evidence he’d incited anyone to commit an offence. CA rejected his argument and held that A can incite not just individuals or the public but the whole world.
Incitement is often verbal but can also be in writing thereby inciting the public or indeed the whole world.

Question 3

Most:

Answer 3

Incitement need not be directed towards a specific person and can be to the whole world.
A published an article in a London newspaper urging readers around the world to follow the example of Russia and assassinate their Heads of States. Held: this was incitement to murder contrary to S4 of the OAPA 1861.

Question 4

Invicta Plastics Ltd v Clare:

Answer 4

Incitement may be implicit. Illustrated ad in motoring magazine showed a device used for detecting police radar traps contrary to statute. Per Parker J: “It is plain that readers were… incited to use the device.”

Question 5

Mens Rea of Incitement

Answer 5

To be guilty of incitement, a person must intend the offence incited to be committed and recklessness to the circumstances can sometimes suffice. Prosecution must prove this intent and D’s use of persuasion or pressure to bring about the offence, and the offence need not actually take place. D must intend or assume the person he incites will act with the MR required for that offence.

Question 6

Mohamed Musa v R:

Answer 6

The offence is complete upon the communication reaching its intended recipient even if it fails to influence him in the commission of the offence incited. Appellant charged with inciting others to evade local tax and encouraging collectors to abandon their duties. Appellant had petitioned the Resident Minister on behalf of himself & others in his chiefdom expressing their unwillingness to pay taxes until a Regent Chief was elected. Charged and convicted with incitement. On appeal the presiding judge (allowing his appeal on lack of evidence A had made any such communication) stated: “In a charge of incitement there must be a communication with some person whom the offender wishes to incite…”

Question 7

Whitehouse (1977):

Answer 7

A convicted of inciting his 15yr old daughter to commit incest with him. Had intercourse taken place, A would have been guilty of incest but a girl under 16 wouldn’t be committing a crime in permitting it. Thus, since it was not a crime for a girl under 16 to commit incest, it could not be a crime for the father to incite her to do it. Conviction quashed.

Question 8

Mulcahy

Answer 8

It can only be committed when two or more people agree although where an accused’s co-conspirators’ identities remain unknown, the single accused can still be charged and convicted.

Question 9

Phillips:

Answer 9

while it must be proved there existed an agreement b/w D and another, that other need not be identified.

Question 10

Kamara v DPP:

Answer 10

HoL held that agreement to commit tort of trespass, if accompanied by an intention to cause more than nominal damage, amounted to criminal conspiracy.

Question 11

Mawji:

Answer 11

where the only parties to an agreement to commit an offence are husband & wife, they cannot be guilty of conspiracy.

Question 12

WhiteHouse (1852):

Answer 12

Husband & wife can be convicted of conspiracy where a 3rd party is also involved.

Question 13

Robinson:

Answer 13

H&W can be convicted where the agreement was made before they were wedded.

Question 14

Actus Reus of Conspiracy

Answer 14

1. Agreement
   The main part of the AR of Conspiracy is satisfied if the party agrees with another/others to pursue a course of conduct which, if successful, will amount to/involve the commission of an offence. Course of conduct must’ve been agreed, although where several co-conspirators are involved, the offender need only have agreed with one of them, providing they’re not his spouse, a child or the intended victim.
2. Overt Act
   Under SL law, there must exist proof of an overt act(s) - an act which manifests the criminal intention and tends towards the criminal object.

Question 15

Walker:

Answer 15

D’s had discussed w/ others a proposal to carry out a robbery. His conviction was quashed as it hadn’t been demonstrated the parties had gone beyond discussing the possibility of committing the ulterior offence or had come to a definite decision to follow through. There is no conspiracy if negotiations don’t result in firm agreement nor will A & B be co-conspirators merely because each has conspired separately with C.
Once there’s an agreement and an act, A loses the defence of not participating.

Question 16

Anderson:

Answer 16

D agreed to be paid to help a cellmate facing serious charges to escape prison. Following his release D was paid for his role even though he hadn’t participated further in the plan. Arguing he lacked the MR of conspiracy, D put forward the argument that he neither believed the enterprise could succeed nor had he participated in its execution.
D’s conviction was upheld by HoL who had to consider whether a person who agreed with others to pursue a course of conduct which they intended to carry out but reneged could be found guilty of conspiracy. It was firmly decided:
D did not really need to fully intend a crime to be part of criminal conspiracy or believe it possible to be a party to it;
It is sufficient (and necessary) that he intended to play some part in the agreed course of conduct when the agreement was made;
That no longer wishing to be a part of the conspiracy was not an excuse to having been a party to it.
It is possible to conspire where some parties have never met others. What’s important is that the acts of the accused were done in pursuance of a common criminal purpose.

Question 17

Lansana & 11 Others v R:

Answer 17

CA stressed the pivotal role of the overt act doctrine in the context of conspiracy in respect of the offences created by S. 3&4 of the Treason & State Offences Act, 1963

Question 18

*The State v Mohamed Forna & 14 others:

Answer 18

Same was stressed emphasising the importance of the doctrine.
In contrast, English law cares only about the agreement; it is immaterial whether an overt act has been done in pursuance of it.

Question 19

Mens Rea of Conspiracy

Answer 19

It is enough to establish guilt if an accused and at least one other co-conspirator had knowledge of any relevant circumstances necessary for the success of the offence. I.e. Intention to execute the unlawful purpose or perform a lawful act by unlawful means.

Question 20

Churchill v Walton:

Answer 20

HoL established that conspiracy at common law involves MR in the full sense of intention (recklessness/negligence do not apply).

Question 21

*Thompson:

Answer 21

prosecution must demonstrate both that existed a pact to effect an unlawful purpose and an intention on the part of each conspirator to bring about the unlawful purpose.

Question 22

DPP v Nock:

Answer 22

Accused were not guilty of conspiracy to extract cocaine from a substance which did not contain cocaine.

Question 23

*Haughton v Smith:

Answer 23

legal and factual impossibility may be a defence as long as it is not based on the inadequacy of the means employed.

Question 24

Actus Reus of Attempt

Answer 24

AR of attempt is mired in complexities especially from the Proximity Doctrine and will arise or exist where the party performs an act which is more than preparatory to the commission of the crime.

Question 25

*Robinson:

Answer 25

Jewellery merchant, in an attempt to commit insurance fraud, staged a robbery in his store and was apprehended before he could claim his losses from the insurance co. His conviction for attempting to defraud the insurers was dismissed because of his apprehension before he could lodge the claim.

Question 26

*Campbell:

Answer 26

Armed with a fake gun, D came within a yard of a post office he’d intended to rob but never drew the weapon. It was held there was insufficient evidence to prove his acts went beyond mere preparation.

Question 27

*Jones:

Answer 27

D bought 4 guns and climbed into the car of the man for whom his mistress had left him while the man was dropping his child at school. He pointed the loaded gun at the man saying “you’re not going to like this” and in the ensuing struggle was disarmed by the man. Arguing against his conviction, D claimed his intention was to commit suicide and that he had 3 more steps to complete before he could be said to have been ready to kill anyone; removing the safety catch, putting his finger on the trigger & pulling the trigger.
CA held the acts of obtaining the gun, loading it, donning a disguise and going to the school were merely preparatory to the commission of the offence. However, once he had entered the car and aimed the loaded gun at the victime with the intention to kill him, he had gone beyond preparation and was sufficient evidence for jury consideration of the charge of attempted murder. His appeal was dismissed.

Question 28

*O’Brien v Anderton,

Answer 28

Per Kerr, LJ: “acts which are merely preparatory cannot amount to attempts; they must be more than merely preparatory.”

Question 29

Mens Rea of Attempt
Impossibility of Attempt
If it is impossible for the accused to succeed in committing the offence, at common law, no offence of attempt could be committed.
*Anderton v Ryan: the accused could not be guilty of attempting to handle stolen goods where the goods were not stolen. Mrs. Ryan had received a video-cassette recorder she believed to have been stolen. In fact it was not stolen and her charge could not stand since it required proof that she handled property that was stolen knowingly or believing it to be stolen.
HoL quashed her conviction as handling non-stolen property wasn’t an offence and merely believing property to be stolen could not render the person liable for attempted handling.

Answer 29

Intention is the main element of any crime of attempt as laid down in *Pearman. Prosecution must ordinarily prove the accused acted with specific intent to commit the crime attempted, even if the offence is one of strict liability.

Question 30

Impossibility of Attempt

Answer 30

If it is impossible for the accused to succeed in committing the offence, at common law, no offence of attempt could be committed.

Question 31

*Anderton v Ryan: the accused could not be guilty of attempting to handle stolen goods where the goods were not stolen. Mrs. Ryan had received a video-cassette recorder she believed to have been stolen. In fact it was not stolen and her charge could not stand since it required proof that she handled property that was stolen knowingly or believing it to be stolen.
HoL quashed her conviction as handling non-stolen property wasn’t an offence and merely believing property to be stolen could not render the person liable for attempted handling.