Inchoate Offences and Parties to a Crime Flashcards
What is an inchoate offence?
Satisfy the mens rea with no valid defence AND ’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.
The accused must intend to bring about the consequences required for the full offence
Does conditional intent count as intention?
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.
What are the three types of impossibility?
Non-existent crime;
Through inadequacy; and
In fact.
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.
Who is the principal?
The principal (P) is the person who, with appropriate mens rea, commits the actus
reus of the offence. It is always possible to have more than one principal: if Fred and Mary break into a house together and both have an intention to steal they will be joint principals for the burglary.
Who are innocent agents?
In certain circumstances, a person may be guilty of an offence as a principal, even if another person actually performs the actus reus. This occurs where the person acting can be described as an ‘innocent agent’.
Who are secondary parties?
Whosoever shall aid, abet, counsel or procure the commission of any offence whether the same be an offence at common law or by virtue of any Act passed, shall be liable to be tried, indicted and punished as a principal offender.
To aid
To abet
To counsel
To procure
To be a party to a joint enterprise
What is aiding?
This is perhaps the easiest term to understand. It requires the accessory to give help, support or assistance to the principal offender in carrying out the principal offence.
Examples include:
* Supplying materials or tools to commit the offence (Thambiah v R [1966] AC 37)
* Giving information which helps the principal to commit a crime (AG v Able [1984] QB 795)
* Holding down a victim in assault (R v Clarkson [1971] 3 All ER 344)
What is counselling?
This has been held to mean giving advice or encouragement before the commission of the offence.
Key case: R v Calhaem [1985] QB 808
Held that ‘there is no implication that there should be any causal connection between the counselling and the offence’. There need be no causal link eg but for the counselling, the crime would not be committed.
However, there must be contact between the parties and a connection between the counselling and the offence. The act done must be within the scope of the advice and the principal offender must know of the counselling, ie there must be consensus.
Key case: R v Jogee [2016] UKSC 8
Once encouragement or assistance is proved to have been given the prosecution does not have to go so far as to prove that it had a positive effect on P’s conduct or on the outcome
What is abetting?
This is defined in the Oxford English Dictionary as ‘to incite, instigate or encourage’.
Devlin J in NCB v Gamble [1959] 1 QB 11 suggested that it means encouraging at the time the offence is being committed. This is in contrast to counselling which is encouraging before the commission of the offence.
As with counselling, there need be no causal link and there must be communication. The principal must know they are being abetted.
Mere presence at the scene of the crime
This is not necessarily enough to count as abetting.
Where D has the right or duty to control the actions of another and deliberately refrains from exercising it, D’s inactivity may be a positive encouragement to the other to perform an illegal act and would therefore be abetting.
What is joint enterprise?
A joint enterprise is where two or more people are committing a crime together.
In a joint enterprise case, at the time of the accessorial offence, the accomplice was committing another offence with the principal. In a simple case of aiding, abetting etc, the accomplice is not committing an offence as a principal.
To be liable under this principle there is no need to show that D2 aided or encouraged the offence.
It is enough that D2 was a party to the joint enterprise and had the relevant mens rea for an accessory.
An important requirement is that crime B must be committed in the course of or be incidental to crime A. If D1 and D2 got to a house to beat up a man and on the way home together D1 throws a brick through the window of a house, D2 cannot be liable for this criminal damage.
A party cannot be liable for any offences committed before they join the enterprise.
What is the mens rea for joint enterprise?
An intention to assist or encourage the principal’s conduct.
* If the crime requires a mens rea, an intention that the principal will do the actus reus with that mens rea. (Procuring would appear to be an exception to this rule.)
* Knowledge of existing facts or circumstances necessary for the offence to be criminal.
Does accessory liability apply where there is conditional intention?
It was accepted in Jogee that it is enough that D has a conditional intent that P will commit a crime with the necessary mens rea. For example, if D supplies P with a gun to use in a burglary and intends P to use it to cause serious harm only if disturbed in the burglary, then D intends P to use the gun to cause serious harm.
This is particularly helpful in cases of joint enterprise. If D and P set out on a burglary and D intends that P will use a weapon to cause serious harm to someone if they are disturbed, D will be liable for the serious harm P causes when they are disturbed.
It was made clear in Jogee that to establish conditional intent in such a case more was required than foresight that P might cause serious harm if the condition arose. On the other hand, it cannot be required that D must know P would definitely cause serious harm as per oblique intent.
The court gave little guidance on when it is possible to find conditional intent based on foresight, merely saying that conditional intent could be inferred from foresight, but need not be.
Herring suggests that the best guidance for the jury would be to consider what D’s attitude would be if P did commit the crime. If D is pleased or accepting of the fact that P acted that way, then the jury should find D has conditional intent the crime would be committed. If D is dismayed that P has committed the crime, then the jury cannot find conditional intention. In cases where P is dismayed, only oblique intention will suffice.
Does accessory liability apply where the mens rea does not correspond to the actus reus?
It was stated in Jogee that if D1 intends D2 to do serious harm to the victim, D1 will be liable for murder when D2 injures the victim with intent to do serious harm and the victim dies as a result. This will be despite the fact that D1 could not be said to have intended murder to be committed. Presumably the same rule applies to s 47 and s 20 Offences Against the Person Act 1861.
What knowledge of the facts or circumstances does the defendant need to be guilty of accessory liability?
If the offence requires goods to be stolen, D needs to know that they are stolen.
If the offence requires lack of consent, D must know that the victim does not consent.
It is also enough to know that the principal may commit any one of a number of crimes including the crime which the principal does in fact commit.
Knowledge here includes wilful blindness; a defendant who deliberately shuts their eyes to the obvious will be deemed to have knowledge (R v J F Alford Transport).
D need not know the exact details of the crime which will be committed. D does not need to know the identity of the victim or the day on which the crime will be committed.
Jogee: If a person is party to a violent attack on another, without an intent to assist in the causing of death or really serious harm, but the violence escalates and results in death, that person will be not guilty as an accessory to murder but can be guilty as a principal for the crime of manslaughter.
When is it seen that a secondary party may withdraw their help or encouragement?
A secondary party may change their mind and want to withdraw their help or encouragement.
The general rule is that it is not enough to just have a change of mind. Something must be done and, at the very least, the withdrawal must be communicated to the principal or a law enforcement agency. Further acts may be required depending on the circumstances of the case.
For assistance, the relevant time for the mens rea is at the time of the act of assistance, not at the time when the principal commits the crime. Therefore, the withdrawal must take place, before the act of assistance. Where D has supplied the principal with the means of committing the crime and has given assistance, this will be less easily neutralised than where D has just given advice.
This is ultimately a question of fact and degree for the jury. Account will be taken
inter alia of the nature of the assistance and encouragement already given and how imminent the infliction of the fatal injury or injuries is, as well as the nature of the action said to constitute withdrawal.
Lord Justice Lloyd held that the minimum which was required was unequivocal
communication of his intention to withdraw. It may be that further steps would have been necessary to neutralise his actions, but as the minimum was not there, the court did not consider what else would be required.
Roskill LJ stated, obiter, that a point of
time might be reached when the only way he could effectively withdraw so as to free himself from joint responsibility for any act C thereafter did in furtherance of the common design, would be physically to intervene so as to stop C attacking the victim, by interposing his own body between them or somehow getting in between them.
