Inchoate Offences Notes

• Introduction

  - Inchoate offence: d. takes some steps towards commission of crime – no need for offence to take place.

  • inchoate: unfinished, undeveloped (inchoatus: begun).

  • 3 types of inchoate offence: (continuum – 1 can lead onto another).

    • 1. encouraging or assisting crime (incitement) – (not examinable).

    • 2. conspiracy to commit a crime.

    • 3. attempt to commit a crime.

  • N.B. always identify specific offence conspired/attempted etc.

  Statutory Conspiracy

  - Conspiracy: common law + statutory offence.

  • 1. statutory conspiracy: s1 Criminal Law Act 1977.

  • 2. common law conspiracy: to defraud; corrupt public morals; outrage public decency.

  - Statutory conspiracy: s1(1) Criminal Law Act 1977.

  • s1(1): d. agrees with any other person(s) that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

    • s1(1)(a): will necessarily amount to or involve the commission of any offence, or

    • s1(1)(b): would do so but for existence of facts which render commission offence impossible.

  Actus Reus

  - Agreement between 2 or more people to course of conduct that will necessarily amount to/involve an offence.

  • conspiracy as soon as parties agree: no need to take steps to carry out – DPP v Doot [1973].

    • only terminates on completion: performance, abandonment or frustration.

  • actual agreement to commit offence needed:

    • more than mere discussion – R v Walker [1962]: d. withdrew during negotiation not guilty.

    • no need to agree all details – R v Nock [1978].

  - Exemptions: certain people cannot be co-conspirators – s2(2) CLA 1977.

  • (a) spouses (inc. civil partners).

    • but: can conspire with spouse + others – R v Chrastny [1991].

  • (b) children under 10.

  • (c) intended victim of the crime.

  Mens Rea

  - Intention to agree: minimum.

  • [Smith + Hogan]: intention to speak words, perform act that constitute agreement.

  • difficult to distinguish MR from AR: AR requires agreement implied intention to reach agreement.

  • debate: what must be agreed?

    • (1) intention to agree that offence be committed?

    • (2) intention to play a role in the crime?

  - Intention that offence be committed?

  • R v Anderson [1986; HoL]: only intention to agree, not that offence should in fact be committed.

    • facts: conspiracy to escape prison; d. agreed to provide equipment but claimed never intended to carry plan out + did not believe it could succeed HoL: guilty – intention to carry out irrelevant.

    • [Ld Bridge]: ‘reject construction … which would require the prosecution to prove an intention on the part of each conspirator that the criminal offence … should in fact be committed’.

    • dubious judgment: A’s attempted defence (impossibility) dealt with by s1(1)(b) anyway.

  • but: subsequent cases – intention to carry out offence needed (Anderson ignored).

    • R v McPhillips [1990; CoA]: d. in IRA conspiracy to plant bomb in disco; claimed intended to give warning not guilty of conspiracy to murder.

    • R v Edwards [1991; CoA]: d. agreed to supply amphetamine but poss. did not intend to carry out agreement not guilty.

    • R v Ashton [1992; CoA]: A + W charged with conspiracy to murder; A claimed motivated by friendship for W, would not have carried out agreement not guilty.

    • Yip Chiu-Cheung v R [1994; PC]: d. agreed with undercover US drug enforcement agent to supply heroin to agent in HK to take to Australia (agent planned to actually make trip to uncover ring); d. argued agent could not be co-conspirator because of no MR guilty: agent intended to carry out crime so had MR + could be co-conspirator (irrelevant that would not be prosecuted).

      • [Ld Griffiths]: MR = intention to carry out the crime.

  • current position: R v Anderson is law, but unlikely to be followed by future Supreme Court.

    • cf. Draft Criminal Code clause 48: conspiracy requires d. + at least 1 other party must have intended offence to be committed.

  - Intention to take part in the course of conduct?

  • R v Anderson: [Ld Bridge]: MR = d., when he entered into agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose’.

  • but: broad interpretation – R v Siracusa [1990; CoA]: [O’Connor LJ]: nub of the offence of conspiracy consists of the agreement to do the unlawful act – can be active involvement or agreement that another should do it actively.

    • rationale: allows ringleaders to be guilty of conspiracy.

  - Conditional intent sufficient: agreement to commit offence only if certain circs. occur – R v Jackson [1985].

  - Mens Rea: summary.

  • intent to agree: required.

  • intent that offence be committed: probably required – R v McPhilips etc.

  • intent that d. take part in offence required: possibly required – R v Anderson.

    • but: interpreted v. broadly – R v Siracusa.

  
  Attempt

  - Statutory offence: s1 Criminals Attempts Act 1981 (replacing old common law offence).

  • s1(1): with intent to commit an offence … a person does an act which is more than merely preparatory to the commission of an offence.

  • s1(2): even if commission of offence impossible.

  • s1(3): intent – inc. if only on facts as d. believed them to be.

  Actus Reus

  - D. does ‘an act which is more than merely preparatory to the commission of an offence’.

  • question of fact: jury decides, provided judge satisfied actions capable of being more than preparatory – s4(3) CAA 1981.

  • R v Gullefer [1990]: [Ld Lane CJ]: when the merely preparatory acts come to an end and d. embarks on the crime proper or the actual commission of the offence.

    • facts: d. bet on losing greyhound; ran onto track to force race to be abandoned + reclaim stake; charged with attempted fraud CoA: not guilty – insufficient: would have had to tried to get money back from bookmaker.

  • R v Geddes [1996]: d. did act which showed he actually tried to commit the offence (not just got ready, put self in position or equipped self).

  • R v Tosti [1997]: preparatory act can be attempt – if not merely preparatory.

    • facts: d. + friend approached farm barn + inspected lock; later arrested +...

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