Incomplete Offences

Question 1

What are incomplete offences?

Answer 1

Deals with behaviour PRIOR to the commission of an actual crime.

Circumstances where defendants are interrupted or frustrated in their efforts to commit an offence, perhaps as a result of police intervention or as a result of things not going as the defendants had hoped.

Question 2

Intentionally Encouraging or Assisting an Offence—

Answer 2

s44 The Serious Crime Act 2007

(1) A person commits an offence if—
(a) he does an act capable of encouraging or assisting in the commission of an offence; and
(b) he intends to encourage or assist its commission.

(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.

Penalty:
- Triable in the same was as the anticipated offence.

Question 3

Give an example of s44 Intentionally Encouraging or Assisting an Offence

Answer 3

John says that he wants to burn down the local church as he absolutely hates the priest. Trevor, his friend, agrees and gives John £5 and says, “you know that they are having a sale on firefighters at the garden centre.”

Trevor has directed him to buy the firefighters and given him £5 to pay for them (encouraging and assisting)

Question 4

Encouraging or Assisting an Offence BELIEVING it will be Committed—

Answer 4

The Serious Crime Act 2007, s. 45 states:

(1) A person commits an offence if—
(a) he does an act capable of encouraging or assisting in the commission of an offence; and

(b) he believes—
(i) that the offence will be committed; and
(ii) that his act will encourage or assist its commission.

Penalty:
- Triable in the same was as the anticipated offence.

Question 5

Give an example of s45 Encouraging or Assisting an Offence BELIEVING it will be Committed

Answer 5

Ted hates Mary. Ted tells his friend Stan that if he got the opportunity to kill her he would. Stan says that he has a lovely chainsaw for sale (he has and has been advertising it for weeks). Stan says that Ted can have it for £100, he believes that Ted will use it to kill Mary.

Stan has no intention of Ted carrying out the offence, but he believes it will carry it out. He assists/ encourages him in carrying it out. Stan doesn’t care he just wants profit.

Question 6

Encouraging or Assisting Offences BELIEVING ONE OR MORE will be Committed—

Answer 6

The Serious Crime Act 2007, s. 46 states:

(1) A person commits an offence if—
(a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences: and

(b) he believes—
(i) that one or more of those offences will be committed (but has no belief as to which); and
(ii) that his act will encourage or assist the commission of one or more of them.

(2) It is immaterial for the purposes of subsection (1)(b)(ii) whether a person has any belief as to which offence will be encouraged or assisted.

Penalty:
- Triable in the same was as the anticipated offence.

Question 7

What are s44, 45 and 46 of the The Serious Crime Act 2007?

Answer 7

• s44: Intentionally Encouraging or Assisting an Offence.
• s45: Encouraging or Assisting an Offence BELIEVING it will be Committed.
• s46: Encouraging or Assisting Offences BELIEVING ONE OR MORE will be Committed

Question 8

OFFENCE Statutory Conspiracy—

Answer 8

The Criminal Law Act 1977, s. 1 states:

1. An agreement between at least two people, and, if so,
2. If the agreement was carried out, would it lead to the commission of an offence by one or more of the parties? Doesn’t matter if impossible.

Penalty:
- Indictment – Murder = Life, In other cases, sentence is the same as for completed offence.

Question 9

Conspiracy – Key Points

Answer 9

• Offence is complete at time of agreement.
• Each conspirator must be aware of overall common purpose.
• Can be committed with an unknown (to the police) person.
• You cannot attempt to conspire.
• You cannot conspire to aid and abet.

Question 10

For there to be a conspiracy there must be…

Answer 10

an agreement—a ‘meeting of minds’.

Therefore there must be at least two people (two minds) involved.

Consequently, A cannot be guilty of a conspiracy with B (if B is the only other party to the agreement) if B intends to frustrate or sabotage it; there would not be a ‘meeting of minds’ in terms of an agreement to carry out an offence.

Question 11

A defendant cannot be convicted of a statutory conspiracy if the only other party to the agreement is:

Answer 11

• his/her spouse or civil partner
• a person under 10 years of age
• the intended victim (Criminal Law Act 1977, s. 2(2)).

Question 12

Can a corporation be a party to a conspiracy?

Answer 12

A corporation may be a party to a conspiracy but a company and one of its directors cannot be the only parties to a conspiracy because there can be no ‘meeting of minds’ (R v McDonnell [1966]).

Question 13

What if a defendant enters into an agreement with another person to commit an offence but that other person is in fact a police officer?

Answer 13

Under normal circumstances, forming an agreement with another person to carry out an offence is a conspiracy.

If, however, one of only two conspirators is an undercover officer who has no intention of going through with the agreement, there is a strong argument that there can be no ‘true’ conspiracy as the only other person had no intention of going through with the plan (Yip Chiu-Cheung v The Queen [1995])

In conspiracies, the intention of at least two parties is the basis of the whole offence. So, in cases where the only other ‘conspirator’ is a police officer, encouraging an offence may be a more appropriate charge.

Question 14

Conspiracy to Defraud—

Answer 14

. . . an agreement by two or more [persons] by dishonesty to deprive a person of something which is his or to which he is or would or might be entitled [or] an agreement by two or more by dishonesty to injure some proprietary right [of the victim] . . . 

Penalty:
- Indictment – 10 years and/or fine.

Question 15

Give an Example of Conspiracy to Defraud—

Answer 15

Tim and his friend Mike work in a cinema at the food counter. They recognise that food prices are astronomically high and as such bake their own cookies for the late screenings.

They sell their own cookies at a reduced rate, instead of selling the cinema popcorn. They then pocket the money depriving the cinema of selling their own products.

Question 16

What is the difference that Conspiracy to Defraud has with Statutory Conspiracy?

Answer 16

Although the requirement for an agreement between at least two people is the same, this offence is broader than statutory conspiracy. There is no requirement to prove that the end result would amount to the commission of an offence, simply that it would result in depriving a person of something under the specified conditions or in injuring his/her proprietary right.

You must show intent to defraud a victim (R v Hollinshead [1985] AC 975).

You must also show that a defendant was dishonest as set out in Barlow Clowes and Royal Brunei Airlines.

Question 17

Clearly there will be circumstances where the defendant’s behaviour will amount to both a statutory conspiracy and a conspiracy to defraud.

What happens then?

Answer 17

The Criminal Justice Act 1987, s. 12 makes provision for such circumstances and allows the prosecution to choose which charge to prefer.

Question 18

What is a ‘Criminal Attempt’?

Answer 18

s1 The Criminal Attempts Act 1981

(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.

• A defendant’s actions must have gone further than mere preparation.
• Whether they did is a question for a magistrate or jury.
• To prove an attempt you must show the intention of the defendant.

Question 19

Would an omission to act create liability for an attempt?

Answer 19

An attempt requires an act—an omission to act would not create liability for an attempt (e.g. a refusal to call an ambulance for a person who is gravely ill cannot amount to attempted murder).

A defendant’s actions must be shown to have gone beyond mere preparation towards the commission of the substantive offence.

Question 20

To prove an ‘attempt’ you must show…

Answer 20

…an intention on the part of the defendant to commit the substantive offence.

This requirement means a higher level or degree of mens rea may be required to prove an attempt than for the substantive offence.

For instance, the mens rea required to prove an offence of murder is the intention to kill or cause grievous bodily harm whereas the mens rea for attempted murder is nothing less than an intent to kill (R v Whybrow (1951) 35 Cr App R 141).

In R v Jones [1990] 1 WLR 1057, the defendant was charged with attempted murder. He climbed into the car of the victim and drew a loaded gun with the intention of killing him, but was disarmed in a struggle that followed. The Court of Appeal held that it was open to a jury to regard this as attempted murder.

Question 21

Difficulties have arisen where, despite the efforts of the defendant, his/her ultimate intention has been impossible (such as trying to extract cocaine from a powder which is, unknown to the defendant, only talc).

Impossibility is dealt with by…

Answer 21

…s. 1(3) of the Criminal Attempts Act 1981 and its interpretation through the courts. It differs however in some incomplete offences.

Question 22

Attempting the Impossible…

Answer 22

You can conspire or attempt to commit the impossible.

e.g attempting to steal a painting in an art gallery that has been moved.

Question 23

Question: A hypnotist conducts private sessions. He puts under a female patient who wants to quit smoking and is there for that purpose. As she is put under, he tells her that she will have sex with him and his friend. The hypnotist callis his friend, tells him what he has done and to come over and have sex with the female whilst he watches. The friend refuses outright.

Has a s44 Serious Crime Act offence been committed.?

Answer 23

Yes, it has.

Question 24

Question: Steve, an undercover officer is being asked by Steward to supply him with child pornography. Steve was clearly never going to supply it.

Has the offender committed an encouraging offence?

Answer 24

Yes, he has.

Question 25

A Husband and wife agree to steal a car with their friend Jim.

Has a conspiracy taken place?

Answer 25

Yes, it has, were it just husband and wife they could not commit the offence.

Question 26

What is a defence to ss 44 to 46?

Answer 26

In the circumstances he/she was aware of, or in the circumstances he/she reasonably believed existed, it was reasonable to act as he/she did.

Question 27

Statutory Conspiracy

If there are only two parties, and one of them is an undercover police officer (who does not intend to go ahead with the agreement) would you have an offence of conspiracy?

Answer 27

No, no meeting of minds.

Question 28

What offences can you not attempt?

Answer 28

S ummary only offence (apart from simple damage & low value shoplifting.
P rocure/ Counsel/ Aid/ Abet an offence
A ssist offender/ Conceal relevant offence
C onspiracy
E ncourage/ assist suicide

Question 29

Ollie sees Paul pull into a public car park towing another car. Paul gets out of the car and walks towards Ollie. Ollie says to him ‘car trouble mate’. Paul replies ‘Yeah the towed car is knackered, engine blown, towing it to the scrapyard after I get a coffee’. Paul then goes into the café. Ollie walks over to the towed car and leans in through the window (pushing it slightly down) seeing if there is anything inside worth stealing. There isn’t, so Ollie walks off.

Considering the offence of Vehicle Interference (Section 9 of the Criminal Attempts Act 1981) has an offence been made out? If so when?

Answer 29

The offence is made out as soon as Ollie leans through the window looking for something to steal.

A person who interferes with a motor vehicle or trailer or anything carried in or on it with the intention that they or another commit a specified offence. Those offences being the theft of the motor vehicle or trailer or part of it, theft of anything carried in or on the motor vehicle or trailer, or taking a conveyance.

Question 30

David sees a van and trailer parked in the car park. He approaches the trailer which has unknown items covered by tarpaulin. David lifts up the corner of the tarpaulin to see if there is anything worth stealing underneath. In fact there is nothing but old sheets underneath therefore he replaces it and walks off.

Considering the offence of Vehicle Interference (Section 9 of the Criminal Attempts Act 1981) has an offence been made out?

Answer 30

David is guilty of vehicle interference as he interfered with the trailer with the intention to steal something held in it.

Question 31

Steven intends to kill Lucy. Lucy has no idea Steven intends to murder her. He is aware that Lucy is goes clay pigeon shooting every Sunday and routinely at 11am she will remove her shotgun from her gun cabinet with ammunition. Steven attends her address at 10.58hrs and makes his way in. He sees the shotgun on the side, puts in a shotgun cartridge, picks it up and points it directly at Lucy’s head, he says ‘time to die’ and pulls the trigger but nothing happens. What Steven doesn’t know is that Lucy was not going shooting that Sunday but rather taking her broken shotgun to the repairers. Lucy runs out of the house.

Has he committed attempted murder?

Answer 31

Steven has attempted to murder Lucy as he had the intention and he believed he had the means.

Steven had the intention to kill and if the shotgun was working he would have done so. Saying the words and pulling the trigger is clearly an act more than merely preparatory.

Question 32

Ben and Jim discuss Jude’s new car. Ben says that he knows where the keys are and they should take it for a spin. Jim stops Ben and says that he has a better idea. There is a funfair at Southend at the weekend and he is aware that Jude will be at work and as such she will get the train in. Ben adds that he knows that she hides her car keys in the tumble dryer in the garage at the weekend and they will be easy to get. They agree that Ben will get the keys at 9am, Jim will drive the car to Southend and then they will return the car and the keys by 3pm before Jude gets home.

Considering the offence of ‘Conspiracy’ when it comes to a ‘summary offence’ has an offence been made out?

Answer 32

A conspiracy has taken place and must be tried in Crown Court.

A charge of conspiracy can be brought in relation to either summary or indictable offences. Therefore in the circumstances you can conspire to commit a summary offence such as TWOC. Conspiracy though is triable on indictment only (Crown Court) regardless if it is a summary offence or not.

Question 33

Stan and Terrence have been drinking in the pub. Stan says that he hates his neighbour who is making his life hell by playing loud music. Terrence says that after their pints he will drive Stan to his neighbours place of work where he can ‘sort the situation out’ once and for all. Terrence believes that Stan will assault his neighbour or smash his car up. Terrence drives Stan to the neighbour’s place of work, Stan gets out of the car and murders his neighbour by stabbing him in the neck.

Considering the offence of Encouraging or Assisting Offences Believing One or More will be Committed (Serious Crime Act 207, s.46) has an offence been made out?

Answer 33

Terrence is guilty of the offence as he believed that one or more offences would be committed and he has encouraged this.

Question 34

Perry 17 years old, plans to rob a local drug dealer, Steve. Perry speaks to Tash who agrees to enter into a plan to help him commit the offence. Tash is 9 years old.

Considering the offence of Statutory Conspiracy contrary to section 1 of the The Criminal Law Act 1977, who if either person commits the offence in these circumstances?

Answer 34

The answer is D.

Statutory Conspiracy contrary to section 1 of the The Criminal Law Act 1977, is committed as when two people enter into an agreement to commit an offence. A person cannot be convicted if the only other person is his/her spouse, under 10 years old or the intended victim. Tash is under ten years old, so all bets are off. No conspiracy. Perry being under 18 matters not.