Incomplete Offences Flashcards
What are incomplete offences?
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.
Intentionally Encouraging or Assisting an Offence—
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.
Give an example of s44 Intentionally Encouraging or Assisting an Offence
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)
Encouraging or Assisting an Offence BELIEVING it will be Committed—
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.
Give an example of s45 Encouraging or Assisting an Offence BELIEVING it will be Committed
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.
Encouraging or Assisting Offences BELIEVING ONE OR MORE will be Committed—
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.
What are s44, 45 and 46 of the The Serious Crime Act 2007?
- 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
OFFENCE Statutory Conspiracy—
The Criminal Law Act 1977, s. 1 states:
- An agreement between at least two people, and, if so,
- 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.
Conspiracy – Key Points
- 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.
For there to be a conspiracy there must be…
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.
A defendant cannot be convicted of a statutory conspiracy if the only other party to the agreement is:
- his/her spouse or civil partner
- a person under 10 years of age
- the intended victim (Criminal Law Act 1977, s. 2(2)).
Can a corporation be a party to a conspiracy?
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]).
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?
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.
Conspiracy to Defraud—
. . . 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.
Give an Example of Conspiracy to Defraud—
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.
What is the difference that Conspiracy to Defraud has with Statutory Conspiracy?
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.
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?
The Criminal Justice Act 1987, s. 12 makes provision for such circumstances and allows the prosecution to choose which charge to prefer.
What is a ‘Criminal Attempt’?
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.
Would an omission to act create liability for an attempt?
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.
To prove an ‘attempt’ you must show…
…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.
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…
…s. 1(3) of the Criminal Attempts Act 1981 and its interpretation through the courts. It differs however in some incomplete offences.
Attempting the Impossible…
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: 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.?
Yes, it has.
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?
Yes, he has.
