Inchoates Flashcards
What is an inchoate offence?
An inchoate offence occurs when the defendant takes some steps towards committing a crime but the full offence is not committed.
“attempted offences”
When does an inchoate offence occur?
It occurs once you take steps to do so.
You must have an intention to commit the full offence and commit an act which is more than merely preparatory to the commission of the offence.
It will not occur by:
- merely thinking about it: the defendant’s conduct must reach a certain threshold that warrants criminal liability
What is the actus reus of an attempted offence?
An act which is more than 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.
Examples of an attempt:
- getting into a car with a loaded gun and pointing it at the victim (attempted murder)
- looking at a padlock with cutting equipment in the hedge (attempted burglary)
Not an attempt:
- being outside a post office with a threatening note and fake gun
- being in school toilets with a knife and rope but no schoolchildren
What is the mens rea?
The accused must intend to bring about the consequences required for the full offence.
example: even though the mens rea of murder is intention to kill or intention to cause grievous bodily harm: for attempted murder it must be necessary to prove that the defendant intended to kill.
Can have oblique intention: jury may find intention where they are satisfied that the defendant foresaw the result as a virtual certainty.
Conditional intent: Where a defendant only intends to commit an offence subject to certain conditions, the defendant will still have the sufficient mens rea for an attempt. E.g. where D picks up a bag and looks through it but decides that there is nothing worth taking - could still be convicted of attempted theft.
Intention to achieve only what is missing from the full offence
If there are elements of the mens rea that do not relate to the actus reus, then those must also be shown in order to convict.
E.g. Aggravated criminal damage
must show mens rea of:
- intention or recklessness as to damaging property (related to the act)
AND
- intention or recklessness as to endangering life by the damage (does not relate to the act)
Must show all of it in order to convict.
What are the three types of impossibility?
- Non-existent crime
- Through inadequacy
- In fact
Can someone be convicted for a non-existent crime?
No. You cannot be convicted where no offence exists.
Note: there is no error as to fact in this case (except for thinking that what you are doing is illegal - but it is the case that the activity you are doing is not illegal. different from a situation where you believe what you are doing is a crime but because you make a mistake about the contents (eg not actually drugs).
Can someone be convicted for impossibility through adequacy?
Yes.
This arises where the crime itself is perfectly feasible but the defendant chooses a method that cannot work e.g. poisoning someone with a substance that unknown to them is not harmful.
Can someone be convicted for impossibility through fact?
Where the defendant makes an error as to facts of the crime i.e. stabbing someone who is already dead, or smuggling drugs but it turns out they are not actually drugs.
