Inchoate Offences

Question 1

What are inchoate offences?

Answer 1

• an additional way in which criminal liability can be determined
• usually constituted by a series of events, all relating to series of events that occur before the completion of a baseline criminal offence

Question 2

what type of offences are inchoate offences and what does this mean

Answer 2

they are all backward-looking offences, looking at the moment before the commission of an offence

Question 3

Why do we criminalise the preparation of offences?

Answer 3

Dangerousness, risk of harm, preventive functions of the criminal law

Question 4

what is the pathway to the completion of an offence

Answer 4

Incitement – conspiracy – attempt – crime

Question 5

what is incitement

Answer 5

• an attempt to form a conspiracy
• Usually through an invitation from the accused to another to enter a criminal conspiracy, or to participate in the perpetration of a crime
• Very early on, before a crime has been committed, that moment of e.g. ‘we should go rob a bank’
• Must be dangerous enough to justify legal intervention

Question 6

what was confirmed in Baxter v HM Advocate

Answer 6

incitement doesn’t require the final instruction to commit the crime, it’s enough to ask another person to constitute to criminal liability

Question 7

what is conspiracy

Answer 7

• Constituted by the agreement of two or more persons to further, or achieve, a criminal purpose
• the actual agreement, along with the planning

Question 8

what is the actus reus of conspiracy

Answer 8

entering into the agreement

Question 9

what is the mens rea of conspiracy

Answer 9

intention demonstrated by agreeing to a criminal purpose

Question 10

what is a criminal purpose

Answer 10

that if attempted or achieved by action on the part of an individual would itself constitute a crime

Question 11

what was held in Coleman v HM Advocate 1999

Answer 11

the agreement to a conspiracy need not to be express

Question 12

what was held in Sayers v HM Advocate 1981

Answer 12

criminal conduct of the conspiracy must be specified precisely

Question 13

Why do we criminalise conspiracies?

Answer 13

Instrumental preventive criminalisation - power to intervene at an early stage

Question 14

what are attempts

Answer 14

Criminalisation of an endeavour to commit a crime, even if the specific harmful or wrongful result doesn’t come to pass

Question 15

what are the two types of attempts

Answer 15

• Complete attempts
• Incomplete events

Question 16

what are complete attempts

Answer 16

Act correctly designed to bring about crime, but the chain of events is interrupted by an unforeseen event

Question 17

what are incomplete attempts

Answer 17

Act incorrectly designed to bring about crime, because of a mis-judgement or mistake of the perpetrator

Question 18

Why do we criminalise attempts;

Answer 18

‘The criminal had gone so far as to do his best to execute a wicked intention’

Question 19

What is the mens rea of an attempted crime?

Answer 19

The same as that of the relevant substantive or completed crime

Question 20

what were the two things established in S294 of the criminal Procedure Act 1995

Answer 20

• Attempt to commit any indictable crime is itself an indictable crime
• Attempt to commit any offence punishable on complaint shall itself be an offence punishable on complaint

Question 21

what are the two theories as to how to draw the line between a criminal and a non-criminal preparatory act for a substantive crime

Answer 21

• Last Act Theory
• Perpetration Theory

Question 22

what is the Last Act Theory

Answer 22

• attempt is committed once the accused has done everything required of them to commit the crime
• Associated to an ‘irrevocability’ test – conduct of an accused can be inferred as preparatory much before the ‘last’ act has been done, implies that the police can’t intervene until the last act has been done

Question 23

what is the Perpetration Theory

Answer 23

• The accused has committed an act which is sufficiently proximate to the commission of the completed crime
• Accused must have passed ‘from mere preparation to perpetration’