This is an extract of our Inchoate Offences document, which we sell as part of our Criminal Law Notes collection written by the top tier of Oxford students.
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Inchoate Offences Inchoate offences are ones that seek to deal with defendants who have taken steps towards the commission of an offence but who have no (yet) committed it. Inchoate = just begun/undeveloped. Note that the offence of incitement was abolished under the Serious Crime Act 2007. The offences are parasitic - they do not exist independent of a substantive crime, but that crime need not exist e.g. conspiracy to commit X. Rationale for inchoate offences: Culpability - evident moral culpability. Potential harm - enough to intervene. State intervention at an early stage - public policy, enabling preventative measures from substantive crimes being committed. Ease of proof - often easy to prove because proof of s substantive crime can be difficult. ATTEMPT
Governed by s.1(1) Criminal Attempts Act 1981. AR - D has done an act which is more than merely preparatory to the commission of the substantive offence. MR - intention to commit the substantive offence. This can be more complicated where the crime has a strong circumstance requirement - in these cases, the offence will be committed if D is reckless to the circumstances, provided recklessness to circumstances is the requirement to commit the full offence.
Key MR element is intent to produce the AR. In constructive crimes like murder, the intent to inflict GBH requirement will not suffice for the attempt. The meaning of intent is governed by Pearlman and is the same as it is in the rest of the criminal/common law.
The circumstance debate:
Subjectivists argue that the attempt should have the same MR
requirement as the offence proper. Objectivists think there should be an intention, to make up for the lower level of harm in the attempt. Recklessness as to circumstantial aspects of the AR can sometimes be sufficient for an attempt. This is governed by two key cases: o Khan - Ds were charged with attempted rape of a 16-year-old girl. They met at a disco and went to a house. Ds attempted, unsuccessfully, to have sex with the girl. The circumstantial element of the case regarded the consent of the girl. The trial judge directed that if Ds were reckless as to whether V would have consented, they could convict. This included a 'could not care less' approach. They were convicted. They appealed on the basis that the judge misdirected, and knowledge or intent regarding nonconsent was required to convict.
? Lord Justice Russell - a rape conviction can be secured on the basis of recklessness as to consent, therefore the attempted offence should be no different. Recklessness does not arise in the physical act, but in the mental state. The only different between rape and attempted rape is that intercourse takes place in one and not the other.
? Note that Khan was decided before the SOA 2003 and consent laws are now more complex. Perhaps we should ask if the offence had been committed, what would D's state of mind have been?
o AG's Ref (No 3 of '92) - Ds were charged of attempted aggravated arson. They threw petrol bombs at a car in which people were sitting. They missed and hit a wall. The judge, failing to convict, said that it had to be clear that Ds intended to endanger lives. AG appealed to the CoA:
? Schiemann J - One way of thinking about it is that D was in a relevant state of mind to commit the full offence and did his best to supply what was missing from the completion of the offence. The recklessness in the offence did not apply to the damage to property, but to the endangerment of life. If D intended to damage property and was reckless as to the endangerment of life, he could be convicted. What was missing in Khan was sexual intercourse. What was missing in this case was damage to property - the mental state had everything necessary for a guilty verdict.
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