Incohate Offences Notes

When the D takes some steps towards the commission of a crime (unfinished/incomplete)

Statutory Conspiracy

• 2 types of conspiracy:

1. Statutory contrary to S 1 Criminal Law Act 1977; and

2. Common law conspiracy to:

   • Defraud

   • Corrupt public morals

   • Outrage public decency

Section 1(1) Criminal Law Act 1977:

Subject to the following provisions of this part of the Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

1. Will necessarily amount to or involve the commission of any offence, or

2. Would do so but for the existence of facts which render the commission of the offence or any of the offences impossible

He is guilty of conspiracy to commit the offence or offences in question

AR:

• Offence is complete as soon as the parties agree and will only terminate on completion by performance, abandonment or frustration

• No need for parties to have taken steps to carry out their agreement : DPP v Doot

• R v Nock - D need not have settled all the details of offence in question – but most go beyond merely discussing the offence – must have actually agreed to commit it

• R v Walker – D’s conviction quashed because it could not be proved that parties had gone beuond negotiation stage

• Certain people excluded : CLA 1977 s2(2):

1. An accused cannot conspire with a person who is his spouse at the time of the agreement

2. An accused cannot conspire with a child under 10 years old

3. An accused cannot conspire with an intended victim of the crime

• Prohibition in s2(2)(a) does not prevent the conviction of a person who conspires with their spouse and others – R v Chrastny

MR

• Difficult to discern a precise mens rea – difficult to distinguish from the AR –

1. Intention to agree

• The AR requirement that the parties agree in itself implies an intention to reach an agreement

• Two different proposals have been made – that the parties must have intention that the offence be committed OR intention to play a role in the crime

2. Intention that the offence be committed?

• HL case R v Anderson – controversial

  • Conspiracy to effect an escape from prison – D agreed to take part by providing equipment to cut through the cell bars –he argued in his defence that he never intended the plan to be carried out and that he did not believe that it could succeed

  • HL said that this was irrelevant : Lord Bridge – parliament could not have intended such a person to escape liability on the basis of lack of intent

  • ‘the necessary mens area of the crime is, in my opinion, established if and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required

  • No requirement that the D intend that the offence is committed

• However: Law Commission Consultation Paper No 183 – Conspiracy and Attempts (2007)- criticises Anderson:

1. No reason, in terms of statutory language or policy, for insisting that D must intend to play some part in implementing agreement

2. an agreement to commit an offence implies an intention that it should be committed, as section 1(1) of the 1997 Act seems to make clear

• CA seem to have ignored Lord Bridge’s dicta on numerous occasions

  • R v McPhillips: D had joined in a conspiracy to plant a bomb timed to explode on the roof of a hall at 1 am when a disco would be at its height – he claimed that unknown to his accomplices, he intended to give a warning enabling the hall to be cleared

    • ‘the guilty act is the agreement that the crime contemplate will be committed; the guilty mind is the intention that the crime will be committed’

    • Distinguished from R v Anderson – guilt already proved as he had already supplied ‘diamond lace’ to help prisoner let himself out – ‘he could be said to have agreed to help and to have actually helped in the escape and to have contemplated that, if the conspiracy went according to plan, the object would be achieved and the offence of prison breach would be committed’

    • ‘R v Anderson is not an authority for the proposition that someone who at all times intends to frustrate the commission of the crime ‘agreed upon’ is guilty of conspiracy to commit that crime or of aiding and abetting such a conspiracy’

    • ‘The appellant was not guilty of conspiracy to murder either as a principal offendor or as an accomplice because his mind did not go with his acts, but on the contrary was directed towards frustrating the conspiracy to murder’

  • R v Edwards: D agreed to supply amphetamine but it may have been that he did not intend to carry out the agreement – held that the judge had rightly directed the jury that D could not be convicted unless he intended to carry out the agreement to do so

  • R v Ashton: A and W were charged with conspiracy to murder – W recruited a to find someone ti kill C – person that A found went to the police and recorded conversations with both A and W – A said that though there was an agreement to kill C, he was motivated by friendship with W and did not intend to carry out the agreement – Court held that A was not guilty of conspiracy – without giving reasons

• The PC have also refused to follow Lord Bridge in R v Anderson:

  • Yip Chiu-Cheung v R: appellant had been convicted of conspiracy to traffic in heroin – vs common law and s4 Dangerous Drug Ordinance – conspiracy concerned an agreement btw Y and an American undercover drug enforcement agent that would meet Y in HK – plan was that Y would supply heroin to the agent who would then take it to Australia. HK authorities were aware of plan and had agreed not to preent the agent from proceeding to Australia as his plan was to identify others in the drugs ring – unfortunately the agent missed his flight to HJ and the plan was abandoned – Y argued that the agent couldn’t be a co-conspirator as didn’t have mens...

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