Week 6- inchoate offences Flashcards
What is an inchoate offence and how does it differ to accessorial liability?
- Inchoate offences are those which include attempts, conspiracy, assisting or encouraging, and are said to be crimes in their early stages, far removed from the level of harm which would actually be caused from the planned or attempted offence.
- Crimes of attempt per se do not exist, only attempts at substantive offences eg robbery or murder.
- Inchoates differ from accessorial liability- in accessorial liability Ds liability derives from Ps commission of the full offence, whereas in inchoates, these offences are committed before the commission of any full offence. Implications include inability to ‘withdraw’ from an inchoate offence, whereas with secondary liability there is the possibility that someone withdraws and neutralises their involvement.
What does s1(1) and s1(3) of the CAA 1981 say (repeals common law of attempts)
1(1) “if, with intent to commit an offence to which the 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”
1(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,
(IMPOSSIBILITY)
What does the CAA suggest is the requisite MR towards the AR of the substantive offence (for attempts), as re-affirmed in Pace and Rogers?
INTENTIONAL CONDUCT: D must intend to perform the relevant act that goes beyond merely preparatory, which therefore can render it to be considered as a purposive intent, oblique intent or recklessness cannot suffice.
-When the substantive offence requires proof as to the result or consequence, the offence of attempt will require proof of an intention as to that consequence. This is straightforward when the MR of the substantive offence is also intention eg murder, however some require less than intention ie recklessness eg manslaughter. Clearly yo cannot have an intention to be reckless towards killing someone.
What does the law/ Pace and Rogers say about the MR of the circumstances relating to the offence eg consent?
- There must also be intention or knowledge as the facts rendering the AR guilty ie when someone attempts to handle stolen goods, they must be aware that the goods are in fact stolen, he cant be guilty of an attempt to do so by mere recklessness, where he recognises that the circumstances could render his intentional actions illegal but he is not intending that they are.
- In this case they foresaw the metal might be stolen, but in fact it was owned by the police, and therefore did not intend that it was stolen and were subsequently not liable.
What are the facts and significance of Pace and Rogers?
Facts-The facts of Pace and Rogers is that DD were convicted of attempting to conceal, disguise or convert criminal property. They ran a scrap metal business and were approached by undercover police officers attempting to sell them metal, which they suspected might be stolen (reckless as to circumstances) but was in fact not stolen. If it had been stolen, they would’ve committed the substantive offence, so long as they knew or suspected it to be stolen. There was only proof of recklessness towards the metal being stolen, and their appeals were allowed as a result.
Principle- CA took a strict approach, saying even if recklessness was the necessary MR towards the circumstance rendering it illegal, anyone who attempts it must intend that these circumstances are the case. This therefore differs to the wider view held in A-Gs reference, in which the MR of the substantive offence must be held by he who attempts the commission of the offence, even if that MR is mere recklessness
What was the principle which Lord Davis attempted to create in Pace and Rogers, and why is it not universally applicable.
“Turning, then, to s1(1) we consider that, as a matter of ordinary language and in accordance with principle, an ‘intent to commit an offence’ connotes an intent to commit all the elements of the offence. WE can see no sufficient basis, whether linguistic or purposive, for construing it otherwise”
-Perhaps as a matter of law, LJ Davis is correct, but as a matter of morality, this cannot be a principle which applies to every case ie attempted rape.
What were the facts and principle in Khan??
Facts- charged with the attempted rape of a 16-year-old girl, B. A had unsuccessfully tried to engage in sexual intercourse with B. The trial judge directed the jury that the issues relevant to the mens rea for attempted rape were the same as for a charge of rape. It was therefore directed that the offences of both rape and attempted rape require 1) an intention to have sexual intercourse, and 2) knowledge of, or recklessness as to, the absence of consent. The men were convicted and appealed.
Principle-CA held that unless intention was the necessary MR towards the circumstances rendering it illegal, then foresight or recklessness would suffice. So if the substantive offence had a MR requirement of belief or suspicion (eg rape) proof of recklessness will suffice for a charge of attempt.
- with regards to consequences, there must be intention as to the consequence of the substantive crime.
- Under Pace and Rogers principle, recklessness as to the consent of V on Ds behalf would not suffice for attempted rape, why should the failed rapist escape liability for attempting to fulfil the missing elements of rape with the requisite mens rea.
A-Gs reference (No 3 of 1992), what is said about circumstances and consequences?
Facts- DD had thrown petrol bombs at a car and missed, guilty of attempting aggravated arson
Principle– A defendant, in order to be guilty of an attempt, must be in one of the states of mind required for the commission of the full offence, and did his best, so far as he could, to supply what was missing from the completion of the offence. It is the policy of the law that such people should be punished notwithstanding that in fact intentions of defendants have not been fulfilled”
-this extends the scope decided in Khan, in that someone could be reckless as to the consequence but intend the circumstances ie someone who is aware that tampering with another’s property (his land lords tv cabling) but is reckless as to whether the cabling is damaged.
What is the issue with the principle set in Pace and ROgers?
- The critics of Pace and Rogers explain how it could be difficult to secure a conviction for attempting to commit a crime in circumstances where D, despite that fact he has not committed the substantive offence, has demonstrated a high degree of cupability.
- For example, in an attempted rape where D fails to penetrate, on the reasoning in Pace and Rogers, it would be held that he would only be guilty if he intended to penetrate but also intended that V did not consent. When in reality its more likely that D is reckless as to whether V consents; this should not exclude him from being liable for attempted rape.
- As Duff argues, D would be liable for rape If he succeeded, despite only being reckless as to her consent, and therefore he should be liable for an attempted rape when displaying the same mens rea of recklessness, and therefore those in Khan would not be guilty
What is the issue with the principle set in A-Gs reference 1992 no 3, and what example can be used to illustrate this over-broadening?
- Too broad an application when read literally, leading to over criminalisation, and doesn’t actually represent the meaning of s1(1) of CAA 1981.
- What this does is extend the liability of one who is RECKLESS as to the CONSEQUENCE (foresee they might commit the AR of a crime) if there is an INTENTION OR KNOWLEDGE as to the MISSING CIRCUMSTANCES.. Therefore, it would lead to a conviction of people who are reckless towards the consequence ie they foresee that they might commit the AR even though they know that if they were to commit the crime, they have the knowledge or intend that circumstances which render it illegal. An example would be someone attempting DIY who intends that the property they are going to tamper with is not theirs (owner by the land-lord) but is reckless as to whether it will actually damage it. He should not be guilty of an attempt of criminal damage, says Smith and Hogan.
Can Ds intention be conditional for an attempt charge, how does the CAA show this?
-The CAA 1981 act solved this problem of conditional intent because It expresses that someone can be guilty of an attempt of trying to steal something in a holdall (in Husseyn it was sub-aqua equipment) even if the holdall was empty. It is no bar to conviction even if the substantive effect is impossible. He is no different from someone who attempts to steal from an empty pocket.
What was the position regarding the AR of an offence prior to CAA 1981??
‘Was Ds act sufficiently PROXIMATE to the substantive offence to be properly described as an attempt?’ was the common law position, which lacked legal certainty and clarity (in essay use examples of preparatory things that an attempted murderer could do eg target practice or planning an ambush position which wouldn’t be criminal under the common law, therefore positive impact on the law.)
-Very narrow view, in that acts could be more than merely preparatory ie driving to the prospective crime scene with a gun, but this wasn’t proximate to the actual commission of the crime ie pointing the gun at the victim.
What is the position on the AR of attempt crimes following CAA 1981??
- The act has not been construed as re-affirming the proximate test, any act more than merely preparatory without being the last act will suffice (middle ground between the two). The word ‘merely’ appears to be the distinguishing feature here. S and H suggest any preparatory act sufficient for liability as an attempt is any act D commits when he is engaged in the commission of the substantive crime.
- The substantive act must first be studied to decide the grounds for attempt liability. Fraud is a crime in which many acts are done which can constitute an attempt before the actual point at which fraud is complete, whereas a wound or murder is committed in much fewer steps and therefore liability for attempts may not accrue until very near to the murder taking place.
- After assessing substantive offence, two questions for jury a) what acts did D do? B)whether they were more than merely preparatory.
- Overall it appears necessary that acts which are more than merely preparatory are those which are done ‘on the job’ as Rowlatt J put it.
Facts and principle in Stonehouse 1978 (before CAA) (attempts AR)
Facts- D faked his death abroad. He was charged in England with attempting to obtain property by deception, the property being the benefit of various insurance policies.
Principle- The jury were directed that such an act not only could but did constitute an attempt. Following Eagleton, the Lords said that a mere intention to commit a misdemeanour is not criminal; not all acts towards misdemeanour are criminal, but acts immediately connected to it are” (narrow view prior to the act)
Campbell 1991 facts and principle (AR of attempt)
Facts- D was arrested by police when, armed with a fake gun, he approached within a yard of the door of a post office with intent to commit robbery
Principle- . His conviction for attempted robbery was quashed as courts held there was not enough evidence for them to say his acts were ‘properly and safely’ more than merely preparatory, epitomising a very strict approach to the meaning of ‘attempts’. This formed much of the reasoning of the law coms further recommendations for reform.
Robinson 1915 facts and principle (way before CAA)
Facts- , a jeweller, having insured his stock against theft, concealed some of it on his premises, tied himself up with string and called for help. The policeman who found him didn’t believe his story and found the jewellery. D confessed his intentions to get money by false pretences, but his conviction was quashed
Principle- The stage had been set, but the commission of the offence by which he obtains money from the insurers would’ve been subject to many more acts and therefore this was held to be merely preparatory. Today this would’ve been fraud but in 1915 this could only have been mere preparation for gaining by false pretences
What is the current position of attempted crimes by omission, and the position following Webley v Buxton regarding successful attempts?
Attempt by omission:
-As usual, an offence committed where someone had a duty to act and fails to do so can constitute liability via omission. If the parents of a child purposely withhold food intending that the child dies, they are attempting to commit murder. However if there can be no evidence collected which says that they ‘acted’ in withdrawing food, they may escape liability for such an attempt.
Successful attempts:
-the principle in Webley v Buxton is the correct one, in that an attempt to commit a misdemeanour becomes subsumed within the successful completed offence. The greater includes the less, and someone who is guilty of an attempt of murder and then V dies, this does not negate his liability for attempt.
what was the objectively innocent test created in Anderton v Ryan and what were the facts?
This case showed the first understanding of the 1981 CAA law, and held that an offence of attempt could not be committed where it was impossible to commit, or there was no evidence which could be shown that the full offence was committable. This created the objectively innocent test.
-The defendant was found in possession of a video recorder. She refused to name the source but admitted that she believed it to be stolen. After it became clear that there was no evidence that it was in fact stolen, she was convicted of attempting to handle stolen goods. The 1981 Act had changed the common law position, and the mere doing of preparatory acts which, if completed would constitute an offence, was not now sufficient. A conviction was now prevented where the full offence could not follow from the preparatory acts. None of the subsections would turn what was in fact an innocent act into an offence of attempting to commit the crime, merely by virtue of the defendant’s criminal intent.
How did Shivpuri over-rule the Principle regarding impossible offences created in Ryan v Anderton?
ie the objectively innocent rule?
Shivpuri [1987] AC 1: This case overruled the thinking in Anderton v Ryan. Shivpuri (S) was persuaded to act as a drugs courier. S collected a suitcase which contained several packages of white powder which he admitted in police interview that he believed to be either heroin or cannabis but was in fact legal snuff. S was charged with attempting to be knowingly concerned
in dealing with and harbouring the controlled drug of heroin. it is immaterial that S did not know the exact nature of the substance in his possession, but nevertheless believed he was dealing with controlled drugs the importation of which was prohibited. The statutory offence of attempt under Section 1 of the 1981Act requires (1) an act which was more than merely preparatory to the commission of an offence and (2) the accused intended to commit an offence.
