#19114 - 8 Attempts & Accomplice Liability - Criminal Law

8 Attempts and Accomplice Liability

*Intent = direct or indirect intent

ATTEMPTS: Attempt = inchoate offence (steps were taken towards completing the full offence, but crime not complete)

• generally, all indictable offences (either-way & indictable-only) can be subject to an attempt charge

• exception: can’t be charged with attempt to be an accomplice

• s 1(1) Criminal Attempts Act 1981

  • AR: do an act which is MORE THAN MERELY PREPARATORY TO THE COMMISSION OF THE OFFENCE

• Must be a positive act (not omissions)

• more than merely preparatory: when ‘the DEFENDANT EMBARKS UPON THE CRIME PROPER’ which will depends on the facts of the particular case (Gullefer) i.e. from taking preparatory steps > commission phase (cross the point of no return) – it is a question of fact for jury to decide

• significant steps have been taken towards committing the full offence (e.g. R v Jones for murder – more than merely preparatory steps were jumping in the car of victim, pointing the gun at V > going to buy the gun or test firing wasn’t enough, or going to the scene but not pulling out gun yet isn't)

• MR: intent to commit the offence (direct or indirect intent)

• Generally, MR of attempt is intent to commit the full offence

• Result crimes, must have INTENT FOR THE PROHIBITED RESULT, even if a lesser MR would satisfy the full offence

• attempted murder MR: only intent to kill

• attempted criminal damage MR: only intent to cause damage or destruction

• attempted s 18 assault MR (never s 20): only intent to cause GBH

• Crimes with ulterior MR

• Attempted aggravated criminal damage MR:

1. intent to damage or destroy property

2. intent or recklessness as to endangering another’s life by the damage

• Attempted burglary with intent: intent to do one of the ulterior offences

• Circumstance crimes:

• Attempted rape MR

1. Intent to have sex

2. Know or reckless concerning victim’s lack of consent

• Attempted criminal damage: knowledge or reckless that property belongs to another will suffice

• Conditional intent is sufficient

• Impossibility: s 1(2) impossibility of committing the full offence is no defence

• Impossibility as to ends e.g. if you attempt to pickpocket someone, it doesn’t matter if their pockets were empty making the ends of the crime (taking the item) impossible

• Impossibility as to means e.g. if you try to break into a safe with a spoon, it doesn’t matter that the means of your attempts (using a spoon) would make it impossible to achieve your aim

• s 1(3) D’s intention to commit the offence is based on the fact as they believed them to be (e.g. where the situation isn’t as D believed them to be, if D would have intent to commit the offence if the facts had been as he believed them to be, he has intent)

SECONDARY PARTICIPATION (Accomplice Liability)

• Terms:

  • principal offender:

• person who commits AR of the offence, or

• person who uses an innocent agent to commit AR of the offence (e.g. use a child)

  • co-principals: two or more people commit offence together

  • accomplices: people who assist a crime but don’t commit the AR of the offence

• ACCOMPLICE LIABILITY: AR OF PRINCIPAL OFFENCE MUST HAVE BEEN COMMITTED TO HAVE ACCOMPLICE LIABILITY

• s 8 Accessories and Abettors Act 1861 & s 44 Magistrates’ Courts Act 1980: anyone who assists in the commission of an offence is just as culpable as the principal offender of the crime, so same powers of punishment against them

• AR: aid, abet, counsel, or procure the commission of an offence

• Aid: to give assistance e.g. lookout or holding down victim

• Abet: give encouragement at the time of the offence (by words or actions)

• Counsel: to give encouragement before the crime (e.g. provide info on how to do crime)

• Procure – take steps to bring about the offence (i.e. setting out to ensure the crime happens and taking steps towards it) e.g. spiking someone’s drink before they drive so they’ll commit a drink driving offence

*think the ones that start with A are at the time of the offence

• Summary: satisfy AR of accomplice liability if they:

1. help bring about the crime by acting, advising, assisting or encouraging before the crime

2. are present at the scene of the crime in order to assist or encourage

3. are present at the scene of the crime and do assist or encourage [by words or actions]

• no accomplice liability for something a person did after the crime was already committed

• mere presence at the scene and not intervening doesn’t satisfy AR

Exceptions

• D was there by prior arrangement with principal, or encouraged or assisted at the scene

• D had a right or duty to intervene

• mental link: contact between accomplice and defendant - principal must know of the encouragement/advice

Required for

• Abetting

• Counselling

• causal link: showing accomplice’s behaviour caused the crime to be committed

Required for

• Procuring

• For aiding, principal doesn’t need to know of the assistance

• Where principal offender has a defence: D can be guilty as an accomplice if the principal offender committed the AR but had a defence

• Where principal offender can’t be found: D can also be guilty as accomplice where principal cannot be found

• Innocent Agents: where a person uses an innocent agent (someone lacking MR or have a defence but commit the AR of the crime), the instigator will be charged as the principal offender

• MR: two elements

  • Intention to do the act or speak the words [which assist the crime]

• It doesn’t matter if they intended for the act or words to assist the crime (e.g. you give car to person who says they need it to go to work. They commit a crime instead. You did intend to do the act of giving the car, which did end up assisting crime = satisfied)

• Not a defence if they had to do the crime to fulfil a contractual obligation

  • Knowledge of the circumstances which make the conduct criminal

• D must know ‘the essential matters which constitute that offence’ (i.e. D must have known or contemplated that certain things were going to happen [which in fact constitute the AR & MR of the crime])

• D does not need to know that the circumstances amount to a crime

• D only needs to foresee the act, not the result e.g. you foresaw punching (which led to death) even though you didn’t foresee the death

• For strict liability crimes still need to contemplate MR

• D doesn’t need to know the exact details of the crime; only that a crime of the type in question was intended

• just knowing that the principal offender was going to commit some form of illegal act isn’t enough to establish accomplice liability MR

• D’s knowledge/contemplation of a range of offences that the principal offender might commit will satisfy

• Accomplice liability for a different offence to the principal offender: for offences which have the same AR (s 18 & 20 assaults; murder/unlawful act manslaughter)

• Accomplice charged with higher offence than principal: if the accomplice had higher MR than the principal (where the AR of the two offences are the same)

• Accomplice charged with lower offence than principal: if the accomplice had a lesser MR than the principal (where the AR of the two offences is the same)

• Where the principal goes beyond the scope of the crime planned:

• (Jogee) the accomplice must have ENCOURAGED OR INTENDED that the principle would do the second crime if the need arises (foresight is NOT enough) – but foresight that principal that might commit the second crime is evidence from which jury may infer the accomplice’s intent, but it is no more than evidence of intention – it is not conclusive > it is up to jury to determine if accomplice intended the second crime

• Withdrawal from the plan: if accomplice assisted the principal offender...