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Inchoate Offences Short Notes

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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 1 We don't yet know the required MR for attempted rape under the SOA 2003 --- likely to be intention to have sex + lack of reasonable belief in consent.

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. o 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. o "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 his best, as far as he could, to supply what was missing from the offence." No matter what the substantive offence requires, D must intend any AR elements that have not yet happened. This means that there will, sometimes, be a different MR requirement for various AR requirements, depending on whether they have happened or not.
??? ?Pace: D must intend all elements of the AR.
? ?? ? Precedent: all three are CA decisions, so a later constitution of that court could choose between them. Lower courts are in theory bound by Pace unless they can distinguish it.
? ?? ? Statutory interpretation: Pace seems the most faithful to s.1 CAA 1981
? ?? ? Policy: Pace cannot be right, in that D, doing acts more than merely preparatory to the rape of V, should only be liable for attempt if he intends that V does not consent, rather than if he has no reasonable belief that she does not.
? Dyson's suggested approach: We also set a minimum MR 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 MR and impossibility; this was attempted in Pace but sadly failed. ACTUS REUS The AR of attempt is now defined by s.1 of the CAA 1981 as doing an act which is more than merely preparatory to the commission of these offences. The following cases provide some illustration on where the line has been drawn. More than merely preparatory cases Jones [1990]:
? D was tried for attempted murder. D had been having an affair with V's wife. D had got into V's car, taken out a loaded gun, pointed it at V with the intention of killing him. Question on appeal was whether D had done an act that was 'more than merely preparatory to' because he would still have had to cocked the shotgun and put his finger on the trigger.
? CA (Taylor LJ): The statutory words take their normal meaning --- D's actions were enough to be 'more than merely preparatory to'. "We do not accept the contention that s.1(1) CAA 1981 in effect embodies a "last act" test ... The words "an act which is more than merely preparatory to the commission of the offence" would be inapt if they were intended to mean "the last act which lay in his power towards the commission of the offence.""

Tosti [1997]
? Facts: T and D2 drove to a barn which they planned to burgle with oxyacetylene equipment, concealed the equipment in a hedge, approached the door and examined the padlock. They then became aware that they were being watched and ran off.
? CA (Bedlam LJ): Following Geddes, (see below) the question was whether T and D2 "had committed acts which were preparatory, but not merely so --- so that it could be said the acts of preparation amounted to acts done in the commission of the offence. Essentially the question is one of degree: how close to, and necessary for, the commission of the offences were the acts which it was proved that they had done." Not more than merely preparatory Gullefer [1990]
? Facts: D placed an PS18 bet on a greyhound race. His dog was losing, so he climbed onto the track in front of the dogs, attempting to distract them (in an effort to get the stewards to declare 'no race', so he would get his money back). D was unsuccessful, but he was prosecuted for attempted theft.
? CA: quashed his conviction --- D's act was merely preparatory. In order to have "embarked on the crime proper." The CA thought D would have to go to the bookmakers and demand his money back. Campbell [1991]
? Facts: Police officers, having been tipped off to a robbery on a post office, kept watch and arrested D as he approached the police office. D had on him a gun and a threatening note. D claimed that he had decided not to go ahead with the robber and had been arrested before he could drive away.
? CA (Watkins LJ): D should not be convicted of attempted robbery. D had not even entered the post office to carry out the attempt, so it was hard to say he had performed an act that amounted to attempt. "If a person, in circumstances such as this, has not even gained the place where he could be in a position to carry out the offence, it is extremely unlikely that it could ever be said that he had performed an act which could be properly said to be an attempt." R v Geddes [1996]
? Facts: G entered a boys toilet in a school in Brighton. He had no right to be there. He was found in a cubicle with a cider can, a large knife, some rope, some orange toilet paper, and a roll of masking tape. The prosecution alleged that he was planning to kidnap a boy. At his trial it was argued that his actions could not constitute an attempt because he had done nothing that was more than merely preparatory.
? CA: There was no attempted false imprisonment --- D clearly had the necessary intention to commit false imprisonment, but had not gone far enough in his preparation of the offence to have committed a crime (there was no contact with a pupil). o Lord Bingham: "The cases show that the line of demaracation between acts which are merely preparatory and acts which may ammount to an attempt is not always clear or easy to recognize. There is no rule of thumb test. There must always be an exercise of judgment based on the particular facts of the case." "Here it is true that the appellant

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