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Inchoate Offences Notes

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INCHOATE OFFENCES Here we're dealing with Ds who have taken steps towards the commission of an offence, but have not yet committed it. The three key categories are:

1. Attempts: D has gone beyond mere preparation and taken steps towards carrying out a complete crime.

2. Conspiracies: D agrees to commit an offence with others.

3. Offences under the Serious Crimes Act 2007: encouraging or assisting a person to commit an offence. Incitement, which used to be an important inchoate, was abolished by the Serious Crime Act

2007. ATTEMPT s.1(1) Criminal Attempts Act 1981: "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." Definition:
? ?? ? AR: D has done an act which is more than merely preparatory to the commission of an offence.
? ?? ? MR: an intention to commit the full offence. NB: the MR becomes very difficult if the actus reus of the full offence requires that the D did an act in certain circumstances. Then the D must intend to do his / her act but need only be reckless as to the circumstances (if MR for the full offence requires only recklessness as the the circumstances). MENS REA This is what can be the difference between a harmless act and a criminal one: D raises his had; this could be an attempted assault or an attempt at a pat on the back, depending on D's state of mind. As noted above, the MR is an intent to commit the AR of the full offence. So, for example, for murder we need an intention to kill not an intention to commit GBH. Similarly, for criminal damage, we need intention, although recklessness is enough for the full offence.

1. What does 'intent' mean?
This is governed by Pearman [1984]. This case confirms that the word 'intent' in the Criminal Damage Act carries the same meaning as in the common law. In other words, it includes direct intent and sometimes oblique intent.

2. What about the circumstances / consequences of an act?
The law here is governed by two leading cases --- they appear to suggest that recklessness as to the circumstantial aspects of the case is enough: R v Khan [1990]
Facts: Ds were charged with the attempted rape of a 16-year-old girl --- they had met her at a disco and went back with her to a house. Inside, some men had sex with her and the Ds attempted unsuccessfully to have sex with her. The trial judge directed the jury that if the Ds were reckless as to whether or not the V would have consented to sex, they should be convicted of rape. They were convicted and appealed on the basis that they could only be convicted of attempted rape if the knew / intended that V was not consenting. Court of Appeal: the offence of rape required D to intend sex, plus have a knowledge of, or recklessness as to, V's lack of consent. The same analysis could be applied to the offence of attempted rape, so that the intent of D was the same as the full offence and the mens rea were identical. Russell L.J.
? The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely, an intention to have intercourse plus a knowledge of or recklessness as to the woman's absence of consent.
? Recklessness in rape and attempted rape arises not in relation to the physical act of the accused but only in his state of mind when engaged in the activity of having or attempting to have sexual intercourse.
? In our judgment, however, the words "with intent to commit an offence" to be found in section 1 of the Act of 1981 mean, when applied to rape, "with intent to have sexual intercourse with a woman in circumstances where she does not consent and the defendant knows or could not care less about her absence of consent." The only "intent," giving that word its natural and ordinary meaning, of the rapist is to have sexual intercourse. He commits the offence because of the circumstances in which he manifests that intent---i.e. when the woman is not consenting and he either knows it or could not care less about the absence of consent. Khan makes clear that the mens rea for attempted rape is that the D intends to have sex with the V, being reckless as to whether the V consents. However, this case was decided before the SOA 2003, when recklessness was the MR for rape --- since 2003 the MR is more complex and involves proof that D did not reasonably believe that V consented. We don't yet know if

the MR for attempted rape will now be intention to have sex + lack of reasonable belief in consent. The general proposition arising from Khan is that if recklessness as to the circumstances is sufficient for the full offence, then it is enough for an attempt to commit that offence. The issue was considered again in the following case: Attorney-General's Reference (No 3 of 1992) [1994]
Facts: The four Ds were in a moving vehicle from which a lighted petrol bomb was thrown at an occupied car parked beside a pavement occupied by pedestrians. The bomb passed over the car and hit a wall. The Ds were charged with two counts of attempted aggravated arson, contrary to s.1 of the Criminal Damage Act 1971. The judge ruled that it had to be proved that the Ds intended to endanger lives in order to be convicted of the offence. The Ds were acquitted and the A-G referred the case to the Court of Appeal. Court of Appeal: Since the substantive crime was committed where a defendant damaged property in a state of mind where he was reckless whether the life of another would thereby be endangered, it was sufficient to prove an attempt to commit the substantive offence for the prosecution to establish that the defendant, in that state of mind, committed an act more than merely preparatory to the commission of the offence with intent to damage the property; and that, provided that the prosecution could prove that the defendant intended to supply the missing physical element of the completed offence, establishing a graver mental state than was required for the substantive offence was unnecessary. Schiemann J:
? If, on a charge of attempting to commit the offence, the prosecution can show not only the state of mind required for the completed offence but also that the defendant intended to supply the missing physical element of the completed offence, that suffices for a conviction. That cannot be done merely by the prosecution showing himto be reckless. The defendant must intend to damage property, but there is no need for a graver mental state than is required for the full offence.
? What was missing in Khan was the act of sexual intercourse, without which the offence was not complete. What was missing in the present case was damage to property, without which the offence was not complete. The mental state of the defendant in each case contained everything which was required to render him guilty of the full offence. In order to succeed in a prosecution for attempt, it must be shown that the defendant intended to achieve that which was missing from the full offence. Thus in Khan the prosecution had to show an intention to have sexual intercourse, and the remaining state of mind required for the offence of rape. In the present case, the prosecution had to show an intention to damage the first named property, and the remaining state of mind required for the offence of aggravated arson.

The exact interpretation of Khan and A-G's reference is controversial. Three views have been put forward attempting to explain them:

1. Recklessness as to circumstances but not consequences: D must intend to do his action and cause the consequences of that action, but can be reckless as to the circumstances of his / her action (e.g. whether V in a rape case consents to whether there were people in the vicinity of the bomb in A-G's Reference (No. 3 of 1992)).

2. Recklessness as to circumstances or consequences test: A D must intend to do his / her action, but can be reckless as to the consequences or circumstances of that action if recklessness is sufficient for the complete offence.

3. The 'missing element' test: The D's must intend to supply the missing element. This test was proposed in the A-G's Reference case. It requires the court to decide what is the missing element in the attempt, that is, what is missing from the case which, if present, would mean that the full offence had been committed. In Khan, for example, if only the D had managed to engage in sexual intercourse, would there have been the full offence of rape? All the elements of rape, apart from penetration, were present. So the 'missing element' in Khan was the actual sex. Option (1) or (2)? Whether you choose option (1) or option (2) comes down to whether AG's Ref extended Khan or followed it. The debate centers on the holding in A-G that recklessness that 'lives be thereby endangered' is sufficient for the offence of aggravated arson. If you see this as a circumstance (arson was committed in a situation where lives were in danger) then you favour option (1); if you see it as a consequence (there is the act of arson as a result of which lives were put in danger) then you favour option (2). It is of note that the CA in A-G purported to follow Khan. Missing element test: the CA suggested this was easier for juries to understand, but it is possible to imagine case which produce different results depending on which test was used: T damages a watch, which he thinks belongs to J, but in fact belongs to him.
? Missing element test: all that is preventing this being criminal damage is that the watch belongs to another; T is therefore guilty of attempt if he intends the watch belongs to another.1
? Circumstance test: The owner of the watch is a circumstance and because recklessness is sufficient as to that in the full offence of criminal damage, it is enough for an attempt. T is therefore guilty of attempted criminal damage if he is reckless as to whether the watch belongs to another. R v Pace and Rogers [2014]

1 SR: really? CA in AG though talk about the missing element being physical at one point, i.e. maybe it only applies for when the missing element is actually the act, or one of the acts?
That doesn't affect Herring's question here, just wondering if that's a different interpretation of the case.

Facts: The Ds were charged with attempting to convert criminal property. The Ds, working at a scrap yard, had bought stolen items from undercover police officers, suspecting that the items had been stolen (although in truth they weren't). Was this enough for an attempt?
Court of Appeal: For attempt, there had to be an intent to commit all the elements of the offence. Since an element of the offence charged was that the property concealed / disguised /
converted was in fact criminal, an intent to commit that offence involved an intent that the property should be criminal. It was insufficient to show that D suspected (rather than knew or believed) that the property was criminal. Davis LJ:
? 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 construe it otherwise.
? A constituent element of the offence of converting criminal property is, as we have said, that the property in question is criminal property. That is an essential part of the offence. Accordingly, an intent to commit the offence involves, in the present case, an intent to convert criminal property: and that connotes an intent that the property should be criminal property.
? For the purpose of the substantive offence, a person may in point of fact convert property intending and believing that it is criminal property: yet he will not be guilty of the substantive offence if, in fact, it is not criminal property. In the case of attempt a higher level of mens rea maybe required under section 1(1) than is applicable to the substantive offence itself: and thus that, in the present case, proof of suspicion will not suffice ona count of attempted money laundering. Pace Commentary --- Dyson, Scrapping Khan??

Argument: It appears to interpret s.1(1) as requiring the defendant charged with an attempt to have intended every actus reus element of the substantive offence. This is a plausible interpretation of s.1(1) but it is submitted that as a matter of policy it should not be followed. The approaches taken by the court: o Khan: Prior to Pace, the leading authority was Khan. It held that "with intent to commit the offence" meant only that the appropriate consequence or act had to be intended, while recklessness would suffice for circumstances, at least where recklessness sufficed in the substantive offence. o AG's Reference (No.3 1992): The Court used a "missing element" analysis in such a situation: "[the defendant] must be in one of the states of mind required for the commission of the full offence and did his best, as far as he could, to supply what was missing from the offence."Under this test, no matter what the substantive offence requires, for an attempt a defendant must intend any actus reus elements that have not

yet happened. This will often introduce a different level of fault for actus reus elements depending on whether they have happened or not. This might even mean D is liable where he was reckless about consequences which had occurred and intended (missing) circumstances, though such situations will be rare. The approach has been criticised, particularly for extending the scope and uncertainty of the law. o Pace: for an attempt D must intend all elements of the actus reus,
? As a matter of precedent, the Court of Appeal probably should have followed Khan (arguably its earlier incarnation in AG's Reference (No.3 of 1992) should have done too). For the future, all three decisions are at the level of the Court of Appeal so a later constitution of that Court can pick between them, while lower courts are in theory bound by Pace unless they can distinguish it.
?????As a matter of statutory interpretation, Pace is more faithful to the literal meaning of s.1(1) and also to the purpose behind its drafting. However, as a matter of policy, Pace cannot be right. For instance, it cannot be right that the defendant who, doing more than merely preparatory acts to rape a complainant, should only be liable for attempted rape if he intends that she does not consent, rather than if he has no reasonable belief that she does.
? Pace usefully highlights four things. o First, it shows how difficult it can be to decide how to marry external acts to mental states: we talk of "missing elements", "essential parts" and potentially difficult divisions between consequences, circumstances and acts o Secondly, there are fine lines between different mental states which can cause problems in practice. These fine divisions are made even more opaque by the practical reality that juries are, indeed should be, inferring from what a defendant knew or foresaw. o Thirdly, the law of attempts is not an island. [i.e there are different approaches in the other inchoate offences]
o Fourthly, we are still unsure of what it should mean to say someone attempted to commit a crime. It may be that Pace is a flash in the pan. However, more usefully it represents a chance to bring greater clarity to the law of inchoate offences. We could also set a minimum mens rea about circumstances for attempts liability, such as recklessness. Another solution would be to adopt the Pace approach to attempts, but create a separate offence or separate offences for certain wrongs like rape where intention as to circumstances would not be required. Whatever we do, we need a coherent and fair approach to mens rea and impossibility; this was attempted in Pace but sadly failed.

2. Conditional intent What of a case where the D has an intent to commit a crime only in certain circumstances?
E.g. D rushes into his bedroom intending to kill his wife if he finds her in bed with another man.

Husseyn [1978]
Facts: D was charged with attempting to steal sub-aqua equipment from a van. He had opened a bag and started to look in it to see if there was anything worth taking. Court of Appeal: because it could not be said that he had intended to take the sub-aqua gear he could not be found guilty of attempting to steal it. Attorney-General's Reference (Nos 1 and 2 of 1979) [1980]
Facts: not important Court of Appeal: a conditional intent (e.g. to steal anything that was worth stealing) could form the basis of an attempt if the the indictment was worded carefully --- in Husseyn the correct charge would have been attempting to steal "some or all of the contents of the holdall." ACTUS REUS Prior to the CAA 1981 the test adopted by the courts had been the 'last act' test. Robinson [1915]
Facts: A jeweller, who had insured his stock against burglary, with the object of defrauding his insurers, falsely represented to the police that a burglary had been committed on his premises and that the jewellery was stolen. Before he had made any communication to the insurers, the fraud was discovered and he was convicted. Court of Appeal: on those facts he could not be found guilty of an attempt to defraud. A person cannot be convicted of an attempt to obtain money by false pretences unless he made the false pretence to the person from whom the money was intended to be attained (or an agent of that person). A false pretence to a third party would not suffice. Stonehouse [1978]
Facts: After taking out life insurance in England, D, an MP, faked his death by appearing to drown in Florida. He intended his wife to receive PS125,000 in compensation. He was charged in England with attempting to obtain property in England by deception. House of Lords: D's acts abroad were sufficiently proximate to the complete offence of obtaining property by deception to constitute an attempt.
? Lord Diplock: "In the instant case I have pointed out, the accused ... had done all the physical acts lying within his power that were needed to enable Mrs. Stonehouse to obtain the policy moneys if all had gone as he had intended. There was nothing left for

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