Inchoate Offences

An inchoate offence is one which is incomplete with criminality lies in the steps taken to bring about the completion of the substantive crime. Because of the social need to prevent crimes before they occur, the common law has established three separate categories of inchoate crimes Attempt Conspiracy Incitement to commit a crime Note that there is no such offence as 'attempt', 'incitement', 'conspiracy' the crime must be known. Nature of the steps needed to be taken varies with each. With incitement the defendant must have tried to persuade another person to commit a crime. With conspiracy the defendant and at least one other person must have agreed to commit a crime. With attempt the defendant must have tried to commit an offence and must have gotten relatively close to achieving that objective. For all three it is necessary that the inchoate offence must be related to a substantive offence. Attempt The best way to understand criminal attempt is think about failure. The law of attempt therefore is seeking to nip the commission of the main offence in the offence. The elements of attempt include A specific intent to commit the substantive offence If A throws a brick at B and the brick misses and hits C, C dies as a result, what can A be charged with? Assault was committed, so it cannot be 'attempted assault'. Assault is the apprehension of fear. Not murder, that is a crime of specific intent. A would be assault, the other manslaughter.

An overt act towards the commission of that offence Failure to consummate the substantive offence

The actus reus at common law to amount to commit an offence the defendant actions must be immediately connected with or sufficiently approximately to the intended offence. CASE: R v. Eagleton 6 (1855) Cox C.C. 559 [Attempts - actus reus, proximity test under common law] The defendant was alleged to have attempted to obtain money from the guardians of a parish by falsely pretending to the relieving officer that he had delivered loaves of bread of the proper weight to the outdoor poor, when in fact the loaves were deficient in weight. Parke B., delivering the judgment of the court of nine judges, said, at p. 538: "Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it. but acts immediately connected with it are; and if, in this case, after the

credit with the relieving officer for the fraudulent overcharge, any further step on the part of the defendant had been necessary to obtain payment, as the making out a further account or producing the vouchers to the Board, we should have thought that the obtaining credit in account with the relieving officer would not have been sufficiently proximate to obtaining the money. But, on the statement in this case, no other act on the part of the defendant would have been required. It was the last act, depending on himself, towards the payment of the money. Not guilty

R v Geddes [1996] Crim LR 894 The defendant had been seen by a teacher in the boys' toilets of a school. He had no connection with the school and no right to be there. He had a rucksack with him. A police officer saw him and shouted at him, but he left. In a cubicle in the lavatory block there was a cider can which had belonged to the defendant. His rucksack was found in some bushes, containing a large kitchen knife, rope and a roll of masking tape. The defendant was arrested and identified by the teacher and some pupils. He was charged with attempted false imprisonment. The prosecution alleged that the presence of the cider can showed that the defendant had been inside a toilet cubicle, and that the contents of the rucksack could have been used to catch and restrain a boy entering the lavatory. The defendant was convicted. The Court of Appeal allowed the defendant's appeal. It held that the line of demarcation between acts which were merely preparatory and acts which might amount to an attempt was not always clear or easy to recognise. There was no rule of thumb test, and there must always be an exercise of judgment based on the particular facts of the case. It was an accurate paraphrase of the statutory test to ask whether the available evidence could show that a defendant had done an act showed that he had actually tried to commit the offence in question, or whether he had only got ready or put himself in a position or equipped himself to do so. In the present case there was not much room for doubt about the defendant's intention, and the evidence showed that he had made preparations, had equipped himself, had got ready, had put himself in a position to commit the offence charged, but he had never had any contact or communication with any pupil at the school. On the facts of the case the evidence was not sufficient in law to support a finding that the defendant had done an act which was more than merely preparatory to wrongfully imprisoning a person unknown. (Refer to Eagleton for the last act test) State v Parshram 1962 LRBG 482 --- Law report of British Guiana. In the UK and Barbados and Belize the defendant must have performed an act which is more than just preparatory. Must go on, must be more than the preparation.

CASE: R v Campbell (1991) 93 Cr App R 350 On October 20, 1988, the appellant was lurking about in the vicinity of this sub-Post Office. He was on a motor cycle, sometimes riding along the road and sometimes walking around, having parked the motor cycle not far away. He was dressed in the garb of a motor cyclist a suit, crash helmet and gloves. At about 15 or 20 minutes before midday the watching police officers saw the appellant walking towards the Post Office. He removed a pair of sunglasses from his breast pocket. He put them on and then he was seen to put his hand into the right thigh pocket of his motor cycle suit, it seemed that there was something heavy there. He stopped walking when he was about 30 yards away from the Post Office, took off his sunglasses and, after looking around for a while, he walked away from the Post Office. About half an hour later the police officers again saw the appellant walking towards the Post Office. He did not put his sunglasses on this occasion, nor did he reach into his right thigh pocket. He was merely walking along the pavement on the same side of the road as the Post Office going towards it. In front of the Post Office, as we are able to see for ourselves from a photograph which the jury had before them, there is to the right of the single door leading into the premises a red post box. There is a space between that and the wall of the premises sufficiently wide for people to pass and re-pass. As the appellant coming from right to left in the photograph, was passing the post box the officers moved in. They grabbed hold of him just as he passed the post box, he then being but a yard or so from the Post Office door. He had upon him, when he was searched, an imitation firearm. He had the sunglasses earlier referred to. He had a note upon which he had written, as he afterwards admitted, words couched in the most vulgar terms and which were of a most threatening nature. His intention it was said was to place that note under the grill on the counter of the Post Office so that it could be seen by whoever was behind. He hoped, no doubt, upon seeing him, that note and possibly the firearm, the person behind the counter would be so sufficiently frightened as to hand over the money. A number of acts remained undone and the series of acts which he had already performed namely making his way from his home or other place where he commenced to ride his motor cycle on a journey to a place near a Post Office, dismounting from the cycle and walking towards the Post Office door were clearly acts which were, in the judgment of this Court, indicative of mere preparation, even if he was still of a mind to rob the Post Office, of the commission that is the offence of robbery. 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 cou ld ever be said that he had performed an act which could properly be said to be an attempt. The defendant planned to rob a post-office. He drove a motorbike to near the office, parked it and approached, wearing a crash helmet. He was carrying an imitation gun and a threatening note which he planned to pass to the cashier in the post office. He was walking down the street and when one yard from the post office door, police, who had been tipped off, grabbed the defendant and arrested him. He was convicted of attempted robbery and appealed. In allowing the appeal, Watkins LJ stated that in order to effect the robbery it would have been quite impossible unless he entered the post office, gone to the counter and made some kind of hostile act directed at whoever was behind the counter and in a position to hand him money. A number of acts remained undone and the series of acts which he had already

performed - namely, making his way from his home, dismounting from the cycle and walking towards the post office door - were clearly acts which were indicative of mere preparation. 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. (Note: The appropriate charge would have been going equipped with intent to steal.)

CASE: R v Gullefer (1990) 91 Cr App R 356 On March 5, 1985, the appellant attended the Greyhound Racing Stadium at Romford. During the last race, as the dogs rounded the final bend, he climbed the fence on to the track in front of the dogs, waving his arms and attempting to distract them. His efforts were only marginally successful, and the stewards decided that it was unnecessary to declare "no race." Had they made such a declaration, by the rules the bookmakers would have been obliged to repay the amount of his stake to any punter, but would not have been liable to pay any winnings to those punters who would have been successful if the race had been valid? "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."

R v White At common law the test is the action on the part of the defendant must be sufficiently proximate or immediate BUT in statute it's merely preparatory. (Beginning of a series of events). SEE Davie v Lee 1967 2 All ER 423 There are at least a number of tests used in different jurisdictions to determine an act is sufficiently proximity. One approach is to focus on the space and time to see whether or not the accused did what can be considered the last act. Sometime however, the only required is the one act and the last act principle may not always apply. In the proximity approach the defendant's act will satisfy the test if it indicates beyond reasonable doubt the result which it was intended to achieve. If D pulls a gun on V, the victim, can it be said that D intended to kill V? The answer is no, because you cannot say D to commit murder, scare, or play a joke. Because of variances this test had not found favour in many jurisdictions and some jurisdiction move on to the test whether or not can be said by any reasonable person that the actions of the accused can have no other purpose but the commission of a crime as in the case of White. See R v Nash. CASE: Stonehouse [1978] A.C. 55 [Attempts - actus reus, proximity test under common law] D, a former government minister in England, insured his life for his wife's benefit. He then faked his death by drowning overseas. D was convicted of attempting to obtain insurance money by deception. Held: D's acts were proximate enough to the complete offence of obtaining property by deception and therefore capable of amounting to an attempt. D must have Crossed the Rubicon and burnt his boats". Guilty

For actus reus, must be able to show that the act in question was sufficiently connected with the substantive event. Essentially punishing someone for their thoughts.

Mens Rea Requirement All inchoate crimes are specific intent crimes. The mens rea of an attempt therefore is a specific intention to commit the substantive offence. A could only be liable for attempting to commit a substantive offence if he intended to commit that offence.

CASE: R v Mohan [1976] QB 1 Defendant responded to a police signal, but later accelerated towards the officer who jumped out of the way to avoid being hit. The court held that though it was an attempt it was a question of intention. An intention to my mind, connotes a state of affairs which the party intending " -I will call him X.-does more than merely contemplate. It connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.

In Mohan, a constable signaled a driver to stop, and the driver drove directly at the constable and the constable jumped out of the way. Charge was attempted assault occasionally bodily harm. Had to prove that he INTENDED to cause bodily harm. Read AG ref #3 1994 2 All ER 121.

Khan (1990] 2 All E.R. 783 The defendant was charged with attempted rape. He did not in fact penetrate the girl, but he did acts which were more than merely preparatory. The jury must have found that the girl did not in fact consent to sexual intercourse. The trial judge directed the jury that it sufficed if either the defendant knew the girl was not consenting or if he was reckless as to whether she consented or not. He was convicted What was missing in R v Khan was the act of sexual intercourse, without which the offence was not complete After a discotheque a 16-year-old girl accompanied five youths in a car to a house where they were joined by other youths. Three youths raped her. The four defendants tried to do so but failed. The defendants were charged with attempted rape and appealed. It was argued that the judge misdirected the jury by telling them that, even if a defendant did not know the girl was not consenting, he was guilty of attempted rape if he tried unsuccessfully to have sexual intercourse, being reckless whether she consented or not - i.e., it was sufficient that he could not care less whether she consented or not. The Court of Appeal held that a man may commit the offence of attempted rape even though he is reckless whether the woman consents to sexual intercourse since the attempt relates to

the physical activity and his mental state of recklessness relates, as in the offence of rape itself, not to that activity but to the absence of the woman's consent. The appeals against conviction were dismissed. AG 's Reference (No. 3 of 1992) (1994) The defendants threw a petrol bomb towards the victims, four of whom were inside their car and two of whom were on the pavement outside. It passed over the car and smashed against a nearby wall. The defendants' car then accelerated away. The defendants were charged with attempted arson, being reckless whether life be endangered, contrary to s1(2) of the Criminal Damage Act 1971. The trial judge ruled that, on a charge of attempt, intent to endanger life was required; recklessness was not sufficient. The Attorney-General referred the issue to the Court of Appeal. The Court of Appeal held that on a charge of attempted aggravated arson, it was sufficient for the Crown to establish a specific intent to cause damage by fire and that the defendant was reckless as to whether life would thereby be endangered, because if the state of mind of the defendant was that he intended to damage property and was reckless as to whether the life of another would thereby be endangered, and while in that state of mind he did an act which was more than merely preparatory to the offence, he was guilty of attempting to commit that offence. It was not necessary that he intended that the lives of others would be endangered by the damage which he intended Conditional intent...whether that constitutes and offence.

Impossibility Sometimes a person may intend to commit an offence and do everything they can possibly do to commit it but the offence is impossible to commit. At common law there will be no attempt if the crime id either factually or legally impossible to commit. Haughton v Smith 1973 3 All ER . Five points to consider: Where the defendant changes his mind Here if the change is sufficiently early, there will be no attempt. The question will be whether the defendant crossed the threshold of changing his mind. Langford. If some outside agency prevented completion of the offence, the question will be the stage at which the interception took place? Where the defendant is incompetent or his methods were inadequate. Intended crime was factually impossible, at common law, not liable Partinton v Williams 120 SJ 80 The act was completed but there was no legal crime . (stealing from yourself)

CASE: Haughton v Smith [1975] AC 476 A van containing stolen goods was stopped by the police. It transpired that the van was proceeding to Hertfordshire where the defendant was to make arrangements for the disposal of the goods in the London area. In order to trap the defendant the van was allowed to proceed on its journey with policemen concealed inside. The van was met by the defendant

who began to play a prominent role in assisting in the disposal of the van and its load. Finally the trap was sprung and the defendant was arrested. The prosecutor was of the opinion that, once the police had taken charge of the van, the goods had been restored to lawful custody, and were therefore, no longer stolen goods. Accordingly the defendant was not charged with handling 'stolen goods', contrary to s22 Theft Act 1968, but with attempting to handle stolen goods. The House of Lords held that a person could only be convicted of an attempt to commit an offence in circumstances where the steps taken by him in order to commit the offence, if successfully accomplished, would have resulted in the commission of that offence. A person who carried out certain acts in the erroneous belief that those acts constituted an offence could not be convicted of an attempt to commit that offence because he had taken no steps towards the commission of an offence. It followed that, since the goods which the defendant had handled were not stolen goods, he could not be convicted of attempting to commit the offence of handling stolen goods.

Anderson v Ryan [1985] AC 560 The defendant had bought a video recorder, but later confessed to the police that she believed it to have been stolen property when she bought it. The defendant was charged with attempting to handle stolen goods, although the prosecution was unable to prove that the video recorder had in fact been stolen property. The House of Lords (by a majority of 4-1) quashed the defendant's conviction on the ground that she could not be guilty of attempting to handle stolen goods unless such property was shown to have existed. A majority of their Lordships refused to accept that the defendant's belief that goods were stolen was sufficient of itself to result in liability. Such a result may have been the aim of the 1981 Act but their Lordships felt that Parliament would have to express its intentions more clearly before the courts would be willing to impose liability solely on the basis of what the defendant had thought she was doing, as opposed to what she was actually doing. End. Following the criminal offences act UK, it is now possible to be guilty of an attempt to commit the impossible. R v Shivpuri which set out the law as follows, a person can be guilty of an attempt even if the commission of the full offence is impossible. Impossibility does not negate liability; other aspect, there will no liability if the action in question will not result in the commission of an offence in law. At common law if the factually impossible then there no liability. R v Robinson 1915, r v walker 1990.

CASE: R v Shivpuri [1986] 2 WLR 988 The defendant was paid to act as a drugs courier. He was required to collect a package containing drugs and to distribute its contents according to instructions which would be given to him. On collecting the package the defendant was arrested by police officers, and he confessed to them that he believed its contents to be either heroin or cannabis. An analysis revealed the contents of the package not to be drugs, but a harmless vegetable substance. The

defendant was convicted for attempting to be knowingly concerned in dealing with and harbouring a controlled drug, namely heroin. His appeal to the House of Lords was dismissed. Lord Bridge said, in applying s1 of the Criminal Attempts Act 1981 to the facts of the case, the first question to be asked was whether the defendant intended to commit the offence. The answer was plainly yes. Next, did he do an act which was more than merely preparatory to the commission of the offence? The acts were more than merely preparatory to the commission of the intended offence. This analysis lead to the conclusion that the defendant was rightly convicted. Incitement: persuading, encouraging and communication actus reus

See State v Sharma 25 WIR 66, R v Engleton 1 WIR 129, R v Robert Russel & Peter Russel 16 WIR

Stonehouse [1978] A.C. 55 [Attempts - actus reus, proximity test under common law] D, a former government minister in England, insured his life for his wife's benefit. He then faked his death by drowning overseas. D was convicted of attempting to obtain insurance money by deception. Held: D's acts were proximate enough to the complete offence of obtaining property by deception and therefore capable of amounting to an attempt. D must have Crossed the Rubicon and burnt his boats". Guilty

Conspiracy Is essentially planning a crime, the moment any plan or agreement is made between two of more people the offence is committed. Conspiracy at common law is an agreement to do an unlawful act or to do an unlawful act by unlawful means. R v Jones 1832, State v Williams or State v Sharma 25 WIR 166, what you must be able to establish is that the individuals were attempting to do something in terms of their planning that would have unlawful.

The elements of conspiracy: The agreement is the actus reus. Once you can prove there was agreement you can prove the actus reus of conspiracy. R v walker. It is not necessary to prove that each party to the conspiracy was in communication with the others, or that they agreed at the same time. Can also be establish where X, a third party, and Y set up a contact between two other individuals and they make a plan. Wheel of conspiracy. Chain of conspiracy where A contacts B, B contacts C, C contacts D etc. etc. R v Chastry 1991 1WLR 1381, R v Hunter 1973 3All ER 286

Who are the parties to an offence of conspiracy? In common law a husband and wife cannot be charged with conspiracy, as they are considered as one. Mawji 1957 if however a third party is present when the husband and wife are conspiracy, the protection is lost, R v Whitehouse. If A, the father, conspires with B, the son, who is 7 to steal the neighbor's chicken, there will be no conspiracy with someone who cannot form the criminal intent. There also cannot be conspiracy where the other person (in the agreement) is the intended victim. In terms of the mens rea the defendant must have intended to carry out the unlawful purpose and must know of the facts which makes the purpose unlawful. It means therefore if based on the facts known to the parties what they agreed to do was an unlawful act they cannot excuse themselves because they had knowledge of the circumstances. If however, the facts known to them led them to believe that what they agreed to do was lawful then will not be guilty. Churchill v Walton 1967 2 AC 224, R v Sake 2006 UKHL 18.

----------------Conspiracy to defraud Is not limited to agreement to commit the substantive offence. It is also not necessary to show any deception of the person defrauded. Scott v MPC 1975 AC 819 Conspiracy to corrupt public morals or to outrage public decency No legal definition. Shaw v DPP, R v Gibson 1991 1 All ER 439 Section 1 of the criminal act 1977, Haughton and Smith

Incitement This is also a common law offence and it occurs when the incitement or solicitation is made. The individual charged must have encouraged in some way usually in the form of solicitation the commission of an unlawful act. It is not necessary to prove that there was effective what matters is that his conduct amounted to solicitation. Incitement is therefore to encourage another person to commit what would be an offence if the person carried it out. The act incited must amount to a crime. R v Whitehouse The actus reus is the act of persuading, encouraging, or threatening another to commit another to commit a crime R v Shepard note that the incitement need not be directed at a particular person and it takes many forms. The focus in every case should be the words used by the accused or his conduct R v Goldman In terms of mens rea it not the intent to commit a specific crime but rather the specific intent to persuade someone else to commit a crime. It is important in every case to determine whether or not the element of specific is present or whether the accused was speaking in jest or making a casual comment. Note that recklessness may or may not be sufficient because the courts have generally argued that the defendant must know or believe that person incited has the mens rea for the offence in question R v Brown, Victor Plastics 1979 note that if the person incited agrees to commit the crime then there would be another inchoate offence

known as conspiracy. If the person incited commits the crime in question the inciter will be liable as an accomplice to the offence committed. DPP v Armstrong note that if the person incited cannot be guilty of the offence on the authority of Whitehouse, the core element of the offense would not be satisfied, this brings the question of impossibility. They can be liable for incitement to commit the impossible only if the commission of the crime was possible in the time of the incitement R v Fiztmaurice [1983] QB 1083. If however, the conduct incited would not be an offence if achieved, there would be no incitement. The principle in Haughton therefore applies as it did in Whitehouse. If the act incited did not amount to an offence there Is no incitement under the new law the issue would be whether or not such an offence Is possible R v Pickford, R v Seerat

Invicta Plastics Ltd v Clare [1976] RTR 251. [Incitement = encouragement, urge, spur on, persuasion or command of another to commit an offence] D advertised for sale a police radar-alerting device that was unlawful to operate without a licence, although it was not unlawful to own one. Held: D was guilty of inciting an unlawful act, by persuading and inciting the use of the device. The actus reus may be implied rather than express, incitement being determined by looking at the acts taken 'as a whole'. Guilty

R v Fitzmaurice [1983] QB 1083 [Incitement - D may escape liability if offence is impossible] D was asked by X to organise a robbery of a woman. D, and others, did not know that X planned to obtain a reward for reporting the robbery of a security van, which would arrive at the same time as the fictional robbery. Held: D was guilty of inciting a robbery because its commission ('robbing a woman at Bow') was not impossible at the time of the incitement, regardless that it ended up being a charade. Where an offence is de facto impossible, D will not be liable for incitement to commit it. Guilty