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Criminal > Inchoate Offences: Conspiracy, Encouragement and Pre-emptive Liability > Flashcards

Inchoate Offences: Conspiracy, Encouragement and Pre-emptive Liability Flashcards

1
Q

where is statutory conspiracy found?

A

Criminal Law Act 1977 s1

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2
Q

how is conspiracy described under the CLA 1977 s1?

A

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

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3
Q

what can you conspire to do?

what can you not?

A

conspire to commit any offence
conspire to commit an impossible offence

cannot conspire to be complicit or a secondary party

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4
Q

what is meant by ‘agrees’ in conspiracy? X5

A

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

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5
Q

what did R v Walker establish in relation to agreement?

A

negotiations are not enough

ex// discussion of robbery

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6
Q

what did R v Dang establish about agreement?

A

agreement must be to conduct that would amount to a criminal offence

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7
Q

what did R v Broad establish about agreement?

A 
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
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8
Q

what did R v Bolton establish about agreement?

A

abandonment is irrelevant if more than merely preparatory act has been committed
withdrawal of intention is treated in the same way

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9
Q

what did R v Tyrell establish about agreement?

A

intended victims cannot conspire

ex// underage girl agreeing to have sex with an adult is not conspiracy to commit a sexual offence

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10
Q

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?

A

R v Saik

‘a conspiracy to rob a bank tomorrow, if the coast is clear… is not any less of a conspiracy to rob’

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11
Q

what is meant by the agreement ‘necessarily’ amounting to the commission of the offence?

what case?

A

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

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12
Q

what case established that there is no conspiracy to aid and abet?

A

R v Hollinshead

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13
Q

what case established that there was no requirement to prove that the conspirator intended the offence to be committed?

A

R v Anderson

it was irrelevant that D did not believe the plan/offence would work and go ahead

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14
Q

what ruling conflicts with R v Anderson (that intention for the offence is required for conspirators)?

A

R v Edwards

no intention to supply the harmful drugs, only the harmless power - no liability

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15
Q

what case established that there is no intention when the agreement is fantasy?

A

R v F

agreement online to rape a boy, no further steps involved, held as a ‘sexual fanatsy’

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16
Q

what case established that there is no conspiracy if only one party wanted the offence committed and the rest wish to have it frustrated?

A

Yip Chieu Cheung v The Queen

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17
Q

what case established that D must know and intend that they are involved in the commission of a criminal offence?

A

R v Saik

must have known AND intended that the money being exchanged was the proceeds of money laundering

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18
Q

what is the reasoning for the inchoate offence of conspiracy under a subjectivist approach?

A

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

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19
Q

what is the reasoning for the inchoate offence of conspiracy from an objectivist approach?

A

concern about agreement manifesting itself in the external world with criminal intentions
concerned by manifestly wrong conduct

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20
Q

where is the statutory footing found for the inchoate offence of encouragement?

A

Serious Crime Act 2007 s44

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21
Q

how is intentional encouragement defined under SCA 2007 s44?

A

intentionally encouraging or assisting an offences IF

they do an act capable of assisting/encouraging
they intend to assist/encourage

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22
Q

how does s44(2) articulate that encouragement liability cannot be found?

A

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

23
Q

how does the AR for complicity and encouragement differ?

A

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

24
Q

how can an omission be found to amount to encouragement?

A

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

25
Q

what is meant by an impossible attempt to encourage?

A

there is no encouragement of impossible offences

thus, the encouragement is attempted

26
Q

how else can an individual be found as liable for the inchoate offence of encouragement (without intention)?
s44/46

A

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)

27
Q

what is required to prove intention of encouragement (under s47)?

A

belief that it would be committed with the same intention

OR reckless as to whether it would be committed with the same intention

28
Q

what is required to prove belief of the effect of encouragement (under s47)?

A

believed that in the particular circumstances, the consequences would occur
reckless that the circumstances would amount to the circumstances

29
Q

what offence of encouragement seems to widen the scope perhaps too far for inchoate liability?

A

s46 - encouragement of offences with the belief that one or more would be committed
is there a true and directed encouragement?

30
Q

what are examples of pre-emptive offences?

A

going equipped

possession with intent

simple possession

remote encouragement

breach of preventive order

failure to report

31
Q

where is the pre-emptive offence of going equipped found?

what is required for the offence?

A

Theft Act 1968 s25

carrying an article outside of the home for the commission of an offence

32
Q

what are other examples of preparations for offences that generate pre-emptive liability? x3

A

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)

33
Q

what case established pre-emptive liability for facilitating child sexual offences?

A

R v R

liable for the act of asking a prostitute to find D an underage girl to have sex with

34
Q

what offences of pre-emptive liability exist under the scope of possession with intent?

A

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)

35
Q

what is the rationale for possession generating liability?

how is this challenged?

A

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

36
Q

what is the AR for possession?

what case?

A

the article is ‘in the custody of the defendant or subject to his control’

R v Lambert 2002

37
Q

what is the MR for possession?

what case?

A

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

38
Q

what are examples of simple possession liability?

what do none of them require?

A

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

39
Q

what is the rationale for simple possession?

A

to act as a deterrent

preventive measure

40
Q

what are examples of remote encouragement as a pre-emptive offence?

A

glorifying terrorism - Terrorism Act 2006 s1

handling stolen goods - Theft Act 1968 s22

money laundering - Proceeds of Crime Act 2002

41
Q

where can there be inchoate liability for failure to report?

A

failure to report:

terrorism

money laundering

OR allowing the death of a child or vulnerable adult

42
Q

what is the rationale for imposing liability for failure to report?

A

failing to report increases the likelihood of the offence

D can be found to pre-empt the offence by not reporting

43
Q

what are examples of preventive orders that do not require prior conviction?

what order has been repealed?

A

football banning order

drink banning order

sexual risk order

serious crime prevention order

REPEAL of the anti-social behaviour order

44
Q

what are examples of preventive orders that can be imposed post-conviction?

A

drug treatment and testing order

criminal behaviour order

45
Q

how does the Serious Crime Act 2007, s1 (1) describe the policy aim of preventive orders?

A

reasonable grounds to believe that the order would PROTECT THE PUBLIC by preventing, restricting or disrupting the individual from committing the crime

46
Q

how are the preventive orders decided?

what is the result of breach of a preventive order, without reasonable excuse?

A

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

47
Q

what case exhibited the functioning of a preventative order for a counterfeiting offence?

what issues did it highlight?

A

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

48
Q

how did the O’Neill case highlight the restrictions of a preventive order after committing a sexual offence?

A

required to notify the police of the name, age and address of any woman he intended to have sex with 24 hours in advance

49
Q

what is the effect of creating pre-emptive offences?

A

discounts chance to repent

promotes early intervention

thinning of requirement of conduct element

pessimistic view of human nature

50
Q

what does Horder argue there is a key difference when prohibiting a moral wrong?

A

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

51
Q

how does Cornford justify the intrusion on liberty that generates from pre-emptive liability?

A

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’

52
Q

what are key criticisms of the anticipatory perspective that enables pre-emptive liability?

A

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

53
Q

what statute could be seen to support a surveillance state?

A

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’

54
Q

how does Fletcher describe the subjectivist rationale to the imposition of inchoate offences?

A

‘the individual pits himself against the community’

‘the person who reveals his hostility towards the rights of others becomes too dangerous to tolerate’

Criminal (15 decks)

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