Inchoate Offences: Conspiracy, Encouragement and Pre-emptive Liability Flashcards
where is statutory conspiracy found?
Criminal Law Act 1977 s1
how is conspiracy described under the CLA 1977 s1?
if a person agrees, with any other person/s that a course of conduct shall be pursued, that if the agreement is carried out in accordance with their intentions will:
amount to or involve the commission of any offence/s
or would do so if the circumstances hadn’t rendered the commission impossible
what can you conspire to do?
what can you not?
conspire to commit any offence
conspire to commit an impossible offence
cannot conspire to be complicit or a secondary party
what is meant by ‘agrees’ in conspiracy? X5
negotiations not enough - R v Walker
agreement to something that would amount to a criminal offence - R v Dang
agreement can be to a class of an offence/ not specific - R v Broad
agreement is irrelevant if MTMPA has been committed - R v Bolton
intended victims cannot be liable even if a party in agreement - R v Tyrell
what did R v Walker establish in relation to agreement?
negotiations are not enough
ex// discussion of robbery
what did R v Dang establish about agreement?
agreement must be to conduct that would amount to a criminal offence
what did R v Broad establish about agreement?
that agreement can be to a broad class of offence - does not need to specify the offence ex// agreement to produce Class A drugs, irrelevant that actual drugs were not specified
what did R v Bolton establish about agreement?
abandonment is irrelevant if more than merely preparatory act has been committed
withdrawal of intention is treated in the same way
what did R v Tyrell establish about agreement?
intended victims cannot conspire
ex// underage girl agreeing to have sex with an adult is not conspiracy to commit a sexual offence
what case established that exclusion of circumstances where they wouldn’t commit the offence, in their agreement, wouldn’t allow an escape from conspiracy liability?
R v Saik
‘a conspiracy to rob a bank tomorrow, if the coast is clear… is not any less of a conspiracy to rob’
what is meant by the agreement ‘necessarily’ amounting to the commission of the offence?
what case?
that if the agreement is carried out, in accordance with the plan, there would be the commission of the offence mentioned in the agreement
R v Jackson
what case established that there is no conspiracy to aid and abet?
R v Hollinshead
what case established that there was no requirement to prove that the conspirator intended the offence to be committed?
R v Anderson
it was irrelevant that D did not believe the plan/offence would work and go ahead
what ruling conflicts with R v Anderson (that intention for the offence is required for conspirators)?
R v Edwards
no intention to supply the harmful drugs, only the harmless power - no liability
what case established that there is no intention when the agreement is fantasy?
R v F
agreement online to rape a boy, no further steps involved, held as a ‘sexual fanatsy’
what case established that there is no conspiracy if only one party wanted the offence committed and the rest wish to have it frustrated?
Yip Chieu Cheung v The Queen
what case established that D must know and intend that they are involved in the commission of a criminal offence?
R v Saik
must have known AND intended that the money being exchanged was the proceeds of money laundering
what is the reasoning for the inchoate offence of conspiracy under a subjectivist approach?
people who agree to an offence are dangerous individuals
increased risk of criminal conduct from agreement
D has showed willingness to violate Vs rights
control dangerous individuals through earl intervention
prevent organised crime
what is the reasoning for the inchoate offence of conspiracy from an objectivist approach?
concern about agreement manifesting itself in the external world with criminal intentions
concerned by manifestly wrong conduct
where is the statutory footing found for the inchoate offence of encouragement?
Serious Crime Act 2007 s44
how is intentional encouragement defined under SCA 2007 s44?
intentionally encouraging or assisting an offences IF
they do an act capable of assisting/encouraging
they intend to assist/encourage
how does s44(2) articulate that encouragement liability cannot be found?
cannot be found to have intended to encourage/assist if such encouragement or assistance was a foreseeable consequence of the act
they must intend to do the act and it have the effect of assisting/encouraging
how does the AR for complicity and encouragement differ?
complicity - P goes on to commit the offence from Ds intended encouragement
encouragement - P does not have to go on to commit the offence after Ds intended encouragement
how can an omission be found to amount to encouragement?
s.65
failing to act when there is a duty to act which is capable of encouraging or assisting an offence where D intends to encourage/assist
what is meant by an impossible attempt to encourage?
there is no encouragement of impossible offences
thus, the encouragement is attempted
how else can an individual be found as liable for the inchoate offence of encouragement (without intention)?
s44/46
s44 - encouraging or assisting an offence with the belief it will be committed
s46 - encouraging or assisting offences with the belief that one or more will be committed (doesn’t matter what offence was believed to be committed)
what is required to prove intention of encouragement (under s47)?
belief that it would be committed with the same intention
OR reckless as to whether it would be committed with the same intention
what is required to prove belief of the effect of encouragement (under s47)?
believed that in the particular circumstances, the consequences would occur
reckless that the circumstances would amount to the circumstances
what offence of encouragement seems to widen the scope perhaps too far for inchoate liability?
s46 - encouragement of offences with the belief that one or more would be committed
is there a true and directed encouragement?
what are examples of pre-emptive offences?
going equipped
possession with intent
simple possession
remote encouragement
breach of preventive order
failure to report
where is the pre-emptive offence of going equipped found?
what is required for the offence?
Theft Act 1968 s25
carrying an article outside of the home for the commission of an offence
what are other examples of preparations for offences that generate pre-emptive liability? x3
preparation of terrorism acts - Terrorism Act 2006, s5
facilitating child sex offences - Sexual Offences Act 2003, s14
making or adapting any article for use in fraud - Fraud Act s7(1)
what case established pre-emptive liability for facilitating child sexual offences?
R v R
liable for the act of asking a prostitute to find D an underage girl to have sex with
what offences of pre-emptive liability exist under the scope of possession with intent?
Firearms Act 1968, s16
Criminal Damage Act 1971, s3
Fraud Act 2005, s6(1)
Forgery and Counterfeitting Act 1981, s17
Terrorism Act 2000, s57(1)
what is the rationale for possession generating liability?
how is this challenged?
possession could be seen as a form of preparation to commit an offence
the fact that the thing is still ‘possessed’ means the offence has not been committed
what is the AR for possession?
what case?
the article is ‘in the custody of the defendant or subject to his control’
R v Lambert 2002
what is the MR for possession?
what case?
D must know they are in possession of the article
no requirement that D is aware the possession is illegal
Warner v Met Police Commissioner 1969
what are examples of simple possession liability?
what do none of them require?
firearms without a license - Firearms Act 1968, s1
offensive weapon in public - Prevention of Crime Act 1953, s1
article with a blade or a point in public - CJA 1988, s139
NONE of them require intention
what is the rationale for simple possession?
to act as a deterrent
preventive measure
what are examples of remote encouragement as a pre-emptive offence?
glorifying terrorism - Terrorism Act 2006 s1
handling stolen goods - Theft Act 1968 s22
money laundering - Proceeds of Crime Act 2002
where can there be inchoate liability for failure to report?
failure to report:
terrorism
money laundering
OR allowing the death of a child or vulnerable adult
what is the rationale for imposing liability for failure to report?
failing to report increases the likelihood of the offence
D can be found to pre-empt the offence by not reporting
what are examples of preventive orders that do not require prior conviction?
what order has been repealed?
football banning order
drink banning order
sexual risk order
serious crime prevention order
REPEAL of the anti-social behaviour order
what are examples of preventive orders that can be imposed post-conviction?
drug treatment and testing order
criminal behaviour order
how does the Serious Crime Act 2007, s1 (1) describe the policy aim of preventive orders?
reasonable grounds to believe that the order would PROTECT THE PUBLIC by preventing, restricting or disrupting the individual from committing the crime
how are the preventive orders decided?
what is the result of breach of a preventive order, without reasonable excuse?
HL has discretion over what constitutes a serious offence and thus deserves an order
also has discretion over what restrictions to impose
imprisonment for up to 5 years and/or a fine
what case exhibited the functioning of a preventative order for a counterfeiting offence?
what issues did it highlight?
Hancox 2010
prohibited from owning a printer, foiling materials, device that could make a CD/DVD copy
highlighted that the acts themselves are not criminal
any other person would be able to legally do the things D has been prevented from doing
creates an individualised criminal law
how did the O’Neill case highlight the restrictions of a preventive order after committing a sexual offence?
required to notify the police of the name, age and address of any woman he intended to have sex with 24 hours in advance
what is the effect of creating pre-emptive offences?
discounts chance to repent
promotes early intervention
thinning of requirement of conduct element
pessimistic view of human nature
what does Horder argue there is a key difference when prohibiting a moral wrong?
highlights a key difference in preventing a moral wrong simply because it is morally wrong and preventing a moral wrong because it is intimately bound up with the threatening of harm
how does Cornford justify the intrusion on liberty that generates from pre-emptive liability?
to prevent harm and promote security
‘surely plausible that they may be obliged to surrender a small amount of liberty for a comparable preventive end’
what are key criticisms of the anticipatory perspective that enables pre-emptive liability?
attenuation of AR
removal of true autonomy
slippery slope argument - why wait for act or possession ex//search history
legitimisation of surveillance - ‘pre crime’
conflict with presumption of innocence
what statute could be seen to support a surveillance state?
Police and Criminal Evidence Act s24(1)(c)
arrest ‘anyone whom he has reasonable grounds for suspecting to be about to commit a criminal offence’
how does Fletcher describe the subjectivist rationale to the imposition of inchoate offences?
‘the individual pits himself against the community’
‘the person who reveals his hostility towards the rights of others becomes too dangerous to tolerate’
