Inchoate Offences Short Notes

INCHOATE OFFENCES

Three offences:

• Attempt: D goes beyond mere preparation and takes steps towards carrying out a complete crime.

• Conspiracy: D agrees to commit an offence with others.

• Offences under the Serious Crimes Act 2007: encouraging / assisting a person to commit an offence.

NB: Incitement was abolished by the SCA 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 more than merely preparatory to the commission of an offence.

• MR: an intention to commit the full offence.

MENS REA

The MR is an intention to commit the full offence. 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.

Intent: carries the same meaning in the Criminal Damage Act as at common law (see Pearman [1984]) —i.e. both direct intent and, sometimes, oblique intent.

Circumstances / consequences of acts

Two leading cases suggest that recklessness as to the circumstantial aspects is enough.

R v Khan [1990]

• Facts: Ds were charged with the rape of a girl (16). The met her at a party and went back with her to a house. Some men had sex with her and the Ds tried unsuccessfully to have sex with her. The Ds were convicted and appealed on the basis that they could only be convicted if they knew / intended that V was not consenting (i.e. recklessness was not enough).

• CA (Russel LJ): the offence of rape required D to intend sex and be reckless to whether D consents (NB: decided before SOA 2003¹). The same analysis could be applied to the offence of attempted rape:“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. The words "with intent to commit an offence" to be found in s.1 of the CAA 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."

Key point: Khan makes it clear that if recklessness as to the circumstances is sufficient for the full offence, then it is enough for an attempt to commit that offence.

AG’s Ref (No 3 of 1992) [1994]

• Facts: 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 aggravated damage under s.1 of the Criminal Damage Act. Ds were acquitted on the basis that they had to have intended to endanger lives to be convicted.

• CA (Schiemann J): The complete crime required D to damage property when reckless as to whether life would be endangered. As such, it was enough for attempt to show that D: (i) committed an act more than merely preparatory to the commission of the offence; (ii) intended to damage the property; (iii) was reckless as to whether life was endangered. Intent only went to whether D intended to supply the missing AR, not the circumstances in which the AR took place.

• Missing element: 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 Ref is controversial. Three views have been put forward attempting to state the law after AG: (i) recklessness as to the circumstances, but not the consequences; (ii) recklessness as to the circumstances or consequences; (iii) missing element test. There was a lot of debate over whether AG followed Khan or extended it —if you see the lives endangered in AG as a consequence of the arson, then Khan was extended, if it was a circumstance, then Khan was followed. The law has now been complicated further in the following:

R v Pace and Rogers [2014]

• 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?

• CA (Davis LJ): For attempt, there had to be an intent to commit all the elements of the offence. Since an element of the offence was that the property 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) the property was criminal.

  • “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. 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.

Summary: approaches taken by the court (from Dyson article):

• Khan: the consequence / act had to be intended, but recklessness sufficed for the circumstances, at least where recklessness was enough for the substantive offence.

• AG’s Ref: Missing element test —“D must be in one of the states of mind required for the commission of the full offence and did...

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