Unit 8: Attempts & Accomplice Liabiltiy Flashcards
What are the two scenarios in which an attempt of a crime is considered an offence?
- Incomplete attempt - not done all the acts necessary to bring about the offence
- Complete attempt - the def has done all the acts but the desired result has not followed.
Where can you find and what is the definition of ATTEMPT as an offence?
S1(1) Criminal Attempts Act (CAA) 1981 which provides:
○ (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.
- Almost all indictable offence can be subject of an attempt charge, but S1(4) CAA 1981 specifies certain offences which cannot:
○ For our purposes the most important exclusion is that a defendant cannot be charged with attempting to be an accomplice.
○ Summary only offences are excluded by the act - There are some where the statute creating the summary only offence specifically created an attempt, e.g. attempting to drive a motor vehicle over the prescribed limit of alcohol.
what are come case law examples for how the courts will apply “more than merely preparatory” to the offence of attempt?
R v Gullefer [1987] - Lord Lane said to satisfy the test the accused need to be ‘on the job’ and this ‘begins when the merely preparatory acts have come to an end and the def embarks on the crime proper’
Boyle and Boyle (1987) - Ds charged with attempted burglary - damaged the door of a house which they intended to burgle
- Geddes [1996] D’s conviction for attempted false imprisonment - found on school premises, in a lavatory - no right to be there, confronted by police, left school, discarded a rucksack nearby which contained a large kitchen knife, some rope, and masking tape. ○ CoA acknowledged that there was evidence of intention to kidnap a child but held that conduct amounted to mere preparation. - said to be largely based upon the fact that the defendant ‘had never had any contact or communication with any pupil; he had never confronted any pupil at the school in any way’.
What are the MR requirements for an Attempt Offence?
- must intend to commit the specific offence they are attempting.
- must intend the act which constitutes the more than preparatory steps and he must intend all of the elements of the full offence - Pace [2014]
- Result crime - the defendant must intend the result even if a ‘lesser’ MR would satisfy the full offence
- Therefore DIRECT (R v Maloney) or INDIRECT (R v Woollin) will satisfy
- No recklessness is allowed even if the full offence allows this.
- Attorney-General’s Reference (No 3 of 1992) [1994] - held that on a charge of attempted aggravated criminal damage, the defendant must intend the damage BUT can be reckless as to whether life is endangered - so recklessness will suffice as to the ulterior element of the mens rea in an attempted offence.
how does the IMPOSSIBILITY of a crime effect the liability of the defendant ?
WILL NOT PREVENT THE ESTABLISHMENT OF AR of attempt because S1(2) CAA 1981 provides:
○ A person may be guilty of attempting to commit an offence to which this section applied even though the facts are such that the commission of the offence is impossible.
- Mens rea is covered by S1(3) CAA 1981 which states: ○ (3) In any case where - § (a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence; but § (b) if the facts of the case had been as he believed them to be, his intention would be so regarded, ○ Then for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence. ○ So on the facts which they believed to be true, they will be assessed.
- R v Shivpuri [1987] - def arrested carrying a package from India which he believed to contain either heroin or cannabis - really the substance was harmless and not illegal - held by the House of Lords that he was guilty of attempting to be knowingly concerned in dealing with or harbouring a controlled drug, even though that was impossible on the facts as the substance was harmless.
what is the common law history of the impossibility of an attempted offence?
- Haughton v Smith [1975] - D could not be guilty of attempting to handle stolen goods where the goods were not stolen.
- Anderton v Ryan [1985] threw confusion - HoL ruled D who had purchased a video recorder believing it to be stolen could not be guilty of attempting to handle stolen goods.
○ House refused to apply S1(2) of the Criminal Attempts Act 1981 and applied the old law under Haughton v Smith
○ Overruled by the House of Lords in the case of Shivpuri [1987] D appealed against his conviction for attempting to be knowingly concerned in dealing with and harbouring prohibited drugs under S170 of the Customs and Excise Management Act 1979 as drug was a harmless vegetable substance.
§ HoL overruled the decision in Anderton v Ryan and held that impossibility was no defence to an attempt.
What statute is the criminal liability laid out in ??
S8 Accessories and Abettors Act (AAA) 1861
how may the defendant satisfy the MR of an accomplice offence ?
may satisfy the AR in 4 diff ways: aiding, abetting, counselling and procuring - Meaning of these is discussed in case law - Attorney-General’s Reference (No 1 of 1975) - COA confirmed that the words were to be given their ordinary meaning - four words must mean something different otherwise there was little point in using different terms.
○ However, in reality, charge will usually allege that the defendant aided, abetted, counselled or procured, and no one term will be singled out.
how does presence at the scene affect liability/AR in accomplice liability?
R v Allen [1965] - mere presence at the scene of a crime is not in itself., sufficient to amount to the AR.
EXCEPT some cases presence at the scene of the crime, without any obvious evidence of encouragement, has been found to be sufficient.
This applies where the defendant is present at an illegal event - Wilcox v Jeffrey [1951] - said that paying to attend an illegal event could amount to encouragement of the crime and so establish the actus reus of accomplice liability.
R v Russell and Russell (1987) - failure to intervene by one parent to protect their child from ill-treatment by the other amounted to encouragement of the offence and led to accomplice liability - the passive parent was under a duty to act and their failure to do so encouraged the crime.
summary, a person will satisfy the actus reus requirements of accomplice liability if either:
what is the position on whether there must be a meeting of minds between the PO and ACC throughout the offence (accomplice)?
- most situations they have no difficulty in establishing this link but maybe occasionally.
PROCURING - Attorney-General’s Reference (No 1 of 1975) [1975] Lord Widgery CJ expressed no need for a mental link, indeed any contact - because procuring meant ‘producing by endeavour’ or setting out to ensure that something (in this case a crime) happens and taking the appropriate steps to achieve this and there were plenty of instances in which a person may do this without being at the scene
COUNSELLING AND ABETTING
- does need to be a meeting of minds at some stage between accomplice and principal, as it is difficult to argue that the accomplice advised or encouraged the principal in the commission of the offence if the principal is not aware of this.
- Confirmed in R v Calhaem [1985]
effect of principle liability on accomplice liability?
A) the commission of the PO?
B) when the PO has a defence?
C) PO is not prosecuted?
D) using an Innocent agent?
A) established law that a person cannot be convicted as an accomplice unless atlas the AR of the principle offence is committed - confirmed by R v Dias [2002]
B) In the event that the principle offender has a defence the accomplice may still be convicted - R v Cogan and Leak [1976]
C) (few reasons PO may not be prosecuted: cant be found e.g.) - in this even the accomplice can still be convicted - R v Gnango
D) IA - someone who commits the AR but who is not guilty of the offence because they either lack the MR or they have a specific defence - R v Cogan and Leak - Michael (1840)
- Law will usually charge the instigator of the crime a the PO rather than the accomplice.
What MR is required of an accomplice ?
Must show def intentionally did the act that assisted, encouraged or procured the commission of the offence, or intentionally spoke the words that did these things - even if the def did not wish for the crime to be committed - National Coal Board v Gamble [1959]
two aspects to this:
1. an intention to aid (proved by a positive act of assistance voluntarily done); and 2. knowledge of the circumstances (considered later in this chapter).
how would the argument that the act was under contractual obligation effect liability in accomplice liability?
considered in Garrett v Arthur Churchill (Glass) Ltd and Another [1969] - Lord Parker CJ found that: albeit there was a legal duty in ordinary circumstances to commit the act once the agency was determined, I do not think that an action would lie for breach of that duty if the duty would constitute the offence of being knowingly concerned in its exportation
- In other words, the criminal law will take precedence over the civil law,
what standard are we looking at for (2) Def had within their contemplation all the circumstances of the principal offence/ ??
Webster [2006] CoA held in order to establish secondary liability, the prosecution must prove that the defendant ‘foresaw the likelihood’ that the principal would perform the actus reus of the offence.
○ The Court confirmed that this is a subjective test
○ Moses LJ: said this knowlege had to be proved not just merely that he ought to have foreseen.
Statement is true even if the principal offence is one involving negligence or strict liability - Callow v Tillstone (1900)
What extent of knowledge of the offence must the accomplice have ?
FULL KNOWLEDGE - second limb of the MR will be established easily.
KNOWLEDGE OF AN OFFENCE - R v Bainbridge [1960] - accomplice must know of a ‘crime of the type in question was intended’ - awareness only that they were going to commit some illegal act is insufficient & Maxwell v DPP for Northern Ireland [1978] - if a defendant, charged as an accomplice, had a range of offences within their contemplation, they were liable for whichever of those offences the principal chose to commit.
