Inchoates and secondary participation Flashcards
Criminal liability for an attempt
Criminal Attempts Act 1981 s 1:
Actus reus - An act which is more than merely preparatory to the commission of an offence
Mens rea - An intention to commit the full offence e.g. for attempted murder, the defendant must have intention to kill
Absence of a valid defence - A defendant cannot be convicted for a non-existent crime (R v Taaffe)
Attempt - actus reus explained
- ‘An act which is more than merely preparatory.’
- A question 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 1981)
- R v Gullefer: ‘An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offence.’
Examples of offences that are not an attempt (are merely preparatory)
- Being outside a post office with a threatening note and fake gun (not attempted robbery, Campbell)
- Being in school toilets with a knife and rope but no schoolchildren (not attempted false imprisonment, Geddes)
Examples of offences that are an attempt (are more than merely preparatory)
- Getting in a car with a loaded gun and pointing it at the victim (attempted murder, Jones)
- Looking at a padlock with cutting equipment in the hedge (attempted burglary, Tosti)
Attempt - mens rea explained
- The accused must intend to bring about the consequences require for the full offence.
- R v Whybrow - The mens rea of murder is intention to kill or intention to cause GBH. For a charge of attempted murder, it is necessary to prove the defendant intended to kill. Intention to cause GBH was not enough for attempted murder.
- R v Toole - If the substantive offence has the mens rea of either intention or recklessness as to the actus reus, to convict of the attempted offence proof of intention is required.
Attempt - mens rea: use of oblique intent
R v Walker & Hayles - The jury may find intention where they are satisfied that the defendant foresaw the result as a virtual certainty.
Attempt - mens rea: conditional intent
A conditional intent counts as 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 (AG’s Ref (Nos 1 & 2 of 1979)
Attempt: mens rea: intention to achieve only what is missing from the full offence
- If the mens rea includes an element which does not relate to the actus reus, the mens rea for an attempt to commit this offence is then an intention to achieve what is missing from the actus reus, plus the mens rea for the full offence.
- e.g. Aggravated criminal damage. Actus reus: damage to property. Mens rea: intention or recklessness as to damaging property, intention or recklessness as to endangering life by the damage.
- Attempted aggravated criminal damage. Actus reus: more than merely preparatory act. Mens rea: Intention to damage property, intention or recklessness as to endangering life by the damage.
Attempt - three types of impossibility
(1) non existent crime
(2) through inadequacy
(3) in fact
Attempt - Impossibility: non-existent crime
Where the accused believes that what they are doing is an offence, whereas it is in fact lawful. You cannot turn a lawful act into an unlawful act
R v Taaffe - Taaffe was caught importing illegal drugs into the UK. He thought the bag containing the drugs contained currency and he mistakenly thought that it was an offence to import this currency into the UK. Taaffe could not be convicted of an attempt to import currency into the UK because there is no such offence.
Attempt - Impossibility: through inadequacy
Where the crime itself is perfectly feasible, but the defendants adopt, or seek to adopt, a method that cannot work, e.g. ‘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.
Such an argument cannot succeed in any situation: a defendant who sets out to kill cannot get off simply because they choose a method doomed to fail. Such a defendant will be convicted of an appropriate inchoate offence/attempt e.g. attempted murder.
Attempt - Impossibility in fact
- No longer a defence to an attempt (s 1(2) & (3) Criminal Attempts Act 1981)
- e.g. if D stabs V, but V is already dead, D will still be liable for attempted murder.
- R v Shivpuri - D was arrested with a suitcase. He admitted it contained illegal drugs but it turned out it did not. He was convicted of attempting to knowingly be concerned in dealing with a prohibited drug.
Principal offender - definition
The person who, with appropriate mens rea, commits the actus reus of the offence. It is possible to have more than one principal.
Innocent agent - definition
- A person may be guilty of an offence as a principal, even if another person actually performs the actus reus. The person acting can be described as an innocent agent.
- Includes where the person carrying out the actus reus is under the age of criminal liability or is deceived as to what they are doing.
R v Michael - A woman gave a child a dose of poison and the child gave it to the victim. The woman was the principal offender.
R v Stringer and Banks - An employer told his employees to make accounting transactions which (unknown to them) resulted in fraudulent transfers. The employer was the principal and the employees were innocent agents.
Being an accessory to a crime - statutory reference
‘Whosoever shall aid, abet, counsel or procure the commission of any offence …shall be liable to be tried, indicted and punished as a principal offender.’ (Accessories and Abettors Act 1861, s 8)
Case that sets out the principles for joint enterprise
R v Jogee - the principles governing those who set out on joint enterprise are the same as for those who aid, abet, counsel or procure.
5 ways in which someone can be liable as an accessory to a crime
(1) To aid
(2) To abet
(3) To counsel
(4) To procure
(5) To be a party to a joint enterprise
Accessorial liability - actus reus
Any of the following 5 ways -
- To aid P in committing the offence
- To abet P in committing the offence
- To counsel P in committing the offence
- To procure P to commit the offence
- To be a party to a joint enterprise with P regarding one offence and during the enterprise P commits a second, different offence
Accessorial liability - mens rea
- 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 be an exception to this rule)
- Knowledge of existing facts or circumstances necessary for the offence to be criminal.
Accessorial liability - withdrawal general rule
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.
Accessorial liability - withdrawal cases
R v O’Flaherty - ‘mere repentance does not suffice…a person must do enough to demonstrate that he or she is withdrawing from the joint enterprise…ultimately a question of fact and degree for the jury. Account will be taken…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.’
R v Rook - Rook and another were recruited by a man to kill his life and paid money to do so. Rook recruited a fourth man to help. The fourth man killed her. Rook never turned up and claimed he never intended to be involved in the killing. Held that the minimum which was required was unequivocal communication of his intention to withdraw.
R v Beccera - Becerra had broken into a house with C and G, intending to steal. B gave a knife to C to use on anyone interrupting them if necessary. When the tenant came, B encouraged C to leave with them. CoA held that something ‘vastly different and vastly more effective’ was required for a sufficient communication of withdrawal – there came a point of time where the only way to effectively withdraw would be to physically intervene.
Accessorial liability - withdrawal; timing considerations
- 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.
Accessorial liability - withdrawal from spontaneous violence
R v Mitchell and King - It was suggested that the test is less onerous for acts of spontaneous violence. A fight broke out in which A, B and D assaulted two customers. The fight continued outside, and D returned later to beat the victim further and killed him. CoA held that communication of withdrawal was required only in cases of pre-planned violence, not like this situation. This case was confined to its facts in R v Robinson, but then in R v O’Flaherty, the CoA said obiter that communication was not necessary for withdrawal from spontaneous violence.
Conviction of secondary party and acquittal of principal
- Conviction of a secondary party and acquittal of the principal is possible and could occur when the principal has been acquitted due to insufficient evidence or the principal could not be found.
- Another situation where D can be convicted and the principal acquitted is where the principal has done the actus reus with the mens rea, but has a defence e.g. R v Bourne: Bourne procured his wife to do the actus reus with the mens rea, but she had the defence of marital coercion.
- The general rule is that if it cannot be proved which of two people committed the crime, both must be acquitted. If it can be proved that the one who did not commit the crime as the principal was a secondary party to the crime, then both can be convicted.
R v Russell and Russell - Both parents of a 16 month old daughter were convicted of manslaughter after she died from a massive dose of methadone. It did not matter that it could not be proven which parent had given her the dose, as long as the other had been there when it happened, so had abetted the offence.