Inchoate Offences Notes

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...

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