Inchoate Offences Flashcards
An attempt
s1 Criminal Attempts act 1981
Attempting to commit an offence.
(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 the offence, he is guilty of attempting to commit the offence.
Essentially D does something that is more than merely preparatory to the commission of an offence with the intent to commit the offence
You cannot commit an attempt to:
1) Conspire
2) be an accessory (assist or encourage an offence)
- Gullefer (1986) [1990] 1 WLR 1063
D attends Greyhound racing stadium - during last race dog he bet on is losing - D goes on to track to try to disrupt race - only marginal effect - race remains valid - Bookies don’t have to pay bets back - D went on track to get money back this way
D convicted of attempted theft - conviction quashed on appeal - D’s acts held by CA to not be more than merely preparatory
Lord Lane CJ - “test is whether D had gone beyond the realm of mere preparation and had embarked upon the actual commission of the offence”
Case assert actus reus is more than merely preparatory - 2 conflicting lines of case law prior to 1981 act to be disregarded
- Jones [1990] 1 WLR 1057
D is a married man – starts an affair- she lived in Australia with him - but when she moves to England she began a relationship with V – continues to see D- later decides to break off relationship with D – D buys several guns – V is taking his daughter to school- after she leaves - D appears from bush – opens door and jumped in rear seat- t- they drive elsewhere – D Points gun at V – struggle – V breaks free and calls the police from nearby garage
Convicted of attempted murder
In interpreting s1(1) the correct approach is to look at the natural meaning of statutory words - this section should be given it’s natural meaning
also follows Gullefer
- Mohan [1976] QB 1
D – in response to a POs signal to stop- slowed his car down – then accelerated and drove the car at the police officer – PO jumped aside and D continued on his journey
Convicted of an attempt by wanton (deliberate and unprovoked) driving to cause bodily harm to the officer and dangerous driving - appeal against first conviction allowed - dangerous driving conviction remains
currently the mens rea for an attempt requires proof of specific intent, a decision to bring about, as far as it lies within the accused’s power, the commission of the offence which the accused had alleged attempted to commit
** Khan [1990] 1 WLR 813
D, without success, attempted to have sex with girl he met at daytime discotheque- followed by others – 3 youths succeeded in having sex- 3 others, the remaining Ds, attempted to but failed – the girl did not consent to any sexual activity in the house.
Ds convicted of attempted rape
mens rea for an attempted rape is that the defendant intended to perform sexual intercourse being reckless as to whether the victim was consenting or not
Where no state of mind other than recklessness exists in an offence, there can be no attempt to commit it – you do or don’t commit it – eg reckless driving
Russel LJ -
-With regard to section 1(1) CAA 1981 , D can intend to commit a crime where D intends the act but is reckless as to the circumstances if where recklessness suffices for the main offence – circumstances intent test
- contradicted in Pace and Rogers
TO NOTE
This case based on old definition of rape - where recklessness to consent was mens rea
2003 SOA - mesn rea for rape is proof that D did not reasonably believe victim consented
yet to see if mens rea for attempted rape will now follow 2003 SOA and be lack of reasonable belief in consent
** Pace and Rogers [2014] EWCA Crim 186
Thames Valley police undertook an investigation into scrap metal yards in their area - one is long-established scrap metal yard known as TR Rogers and Sons – owned by Rogers family and run by D (Rogers) and his father – Pace (other D ) was an employee at the yard – 2 undercover officers (UOs) made 10 visits to yard in 2 months – they produced a waste carriers license – on 9/10 occasions – one or more of the various D’s were involved in accepting items for purchase from them – UOs wore covert recording devices – visual and audio recordings
told Pace they had stolen the earthing tape(that they were selling to him) from the back of a van whilst one of them distracted the driver – Pace was, on the prosecution case, recorded saying he didn’t hear that so he wouldn’t get into trouble for buying stolen metal
Rogers greets them as dodgy and dodgier – they showed him plaque – he refused to buy it – they continued to describe it as genuinely stolen – said that plaque and lead came from the same place – according to UO’s all of this was said in presence of, and heard by Rogers – another man in the yard then completed the purchase of the lead without seeking proof of identity
D’s convicted of attempting to conceal, disguise or convert criminal property
Conviction quashed on appeal - needed intention rather than mere suspicion scrap metal was stolen property
[held that] an ‘intent to commit’ an offence in section1(1) CAA 1981 connoted an intent to commit all the elements of the offence
so even if substantive offence requires a lesser mens rea - an attempt to commit the substantive offence requires intent as to the requisite circumstances of substantive offence
Davis LJ also points out that in Khan - court made it clear it was not purporting to set out an approach that would apply to every offence
Arguments in favour of Pace and Rogers
Creates a higher level of culpability for attempt in comparison to substantive offence - this is justified as liability might rise where little/ if
any actual harm is caused
literal interpretation of statute - intent to commit crime should be intent to all the crime’s circumstances
Arguments against Pace and Rogers
Graham Virgo - decision has unduly restricted scope of attempt - case should instead be decided on ground that Ds didn’t believe scrap metal to be stolen so s1(3)(b) not met
M.Dyson - suggest it is a plausible interpretation of s1(1) bur for policy reasons shouldn’t be followed - eg to be charged with attempted rape D would have to intend V to refuse consent
Impossible attempts
s 1(2) Criminal Attempts Act 198
(2)A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible
Impossible conspiracies
s 1(1)(b) Criminal Law Act 1977
In summary, part B states that the impossibility of the offence when conspiring does not allow for the acquittal of the Ds, they are still guilty
……..
(b)would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question
- Shivpuri [1987] AC 1
D was carrying a package containing a powdered substance + more substance was found in his flat – D admits to believing the packages were drugs – types his own confession statement + stated he thought the package contained drugs – analysis proves it to be merely vegetable material akin to snuff
convicted on counts of attempting to be knowingly concerned with and harbouring a controlled drug, namely, heroin
held that A mistaken belief by D that he was committing an illegal act that was in fact innocent, can render him liable for an attempt, even if the act was not in fact illegal
Overruled Anderson V Ryan - Lord bridge states that in that case HL had been misled by prosecution on LC’s opinion in its 1980 report
Assisting or encouraging an impossible offence
s 49(1) Serious Crime Act 2007
supplemental provisions
(1)A person may commit an offence under this Part whether or not any offence capable of being encouraged or assisted by his act is committed
Statutory conspiracy
Criminal Law Act 1977 s1-5
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 of the parties to the agreement, or
(b)would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question
- Anderson [1986] AC 27
D and A share a cell in prison for one night - D to be released on bail shortly - agrees to help break A out for £20,000- released in bail - paid £2,000 of the 20,000 - injured in car accident - plays no part in scheme - - he admittedly intended to acquire diamond wire capable of cutting through metal bars and give it to another participant
Convicted of conspiracy to effect the escape of a prisoner - appeals against conviction dismissed by CA + HL
Held that mens rea for conspiracy does not require D to intend that their agreement actually be carried out
- OVERRULED
Decision criticised by Herring
-applying this logic - could be said that parties conspired to commit a crime even if none of them intended it to be carried out
- Siracusa (1989) 90 Cr App R 340
Smugglers moving heroin from Thailand and cannabis from Kashmir to Canada via England - on 2 occasions customs officers seized drugs - total value of around £15.5 Million - Ds (M,L,S, and D) arrested
Ds convicted of 2 counts of conspiracy to contravene section 170(2)(b) of the Customs and Excise Management Act 1979 – count 1 related to cannabis – count 2 to heroin
Participation in a conspiracy is infinitely variable: it can be active or passive
Liability for conspiracy is limited to the intended consequences of D’s actions
Yip Chiu-Cheung [1995] 1 AC 111 (PC)
D met with an undercover agent N and also another man H, series of meeting in Thailand between D and N – H present at one- arranged that N would act as a courier to carry 5kg of heroin from HK to Aus – N missed flight to HK and so did not go in the end – proceeded no further with plan
D was convicted of conspiracy to traffic in a dangerous drug
“The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence”
doesnt OVERRULES Anderson [1986] as it is privy council case - but is contrasting to anderson
- Saik [2006] UKHL 18
D operated a bureau de change in London – – prosecutions case was that he had converted sterling – which were the proceeds of crime – into foreign currency – his defence was he only suspected but did not know it was stolen
D convicted of conspiracy to launder money - conviction quashed by HL on appeal
Lord Nicholas:
there are 3 mental elements to conspiracy
1) mental element involved in making an agreement
2) intention to pursue course of conduct that will necessarily involve commission of a crime
3) intention or knowledge that a fact/circumstance necessary for commission of substantive offence will exist
So even if substantive offence does not require knowledge of circumstances necessary for it’s commission - conspiracy to commit that offence does require such knowledge under s1(2) CLA 1977
Assisting or encouraging Crime
S44-46 Serious Crime Act 2007
44- intentionally encouraging or assisting an offence
45- Encouraging or assisting an offence believing it will be committed
46- Encouraging or assisting offences believing one or more will be committed
s-50 - defence of acting reasonably
- Sadique [2013] EWCA Crim 1150
Crown alleged that D used his national distribution business to supply drug dealers with chemical agents – which could be sold lawfully – but the dealers used to cut drugs
No dispute that D was in the supply of chemicals to others and that what he supplied was capable of assisting in the manufacture of drugs of class A or class B- Judge directs the jury that D could only possibly be convicted of one of the counts
D convicted of assisting in the supply of controlled drugs of classes A and B
for the mens rea of section 46 SCA 2007 to be sufficed the D must believe that his conduct will assist in the commission of one or more offences, but does not have to believe that a precise offence will be committed
Case criticised as it effectively renders s46 redundant and a duplicate of s45
