Lecture 9: Inchoate Offences Criminal Law Lecture 9: Inchoate Offences by Feruza Bobokulova

Inchoate Offences Inchoate offences refer to those offences where D has not actually committed a ‘substantive’ crime, such as murder, rape, but D has done one of the following three things: made an attempt to do so (that is, D has tried to commit the crime but has failed, for some reason, to complete it) entered into a conspiracy with at least one other person to do so (that is, D has entered into an agreement that a criminal offence will be committed) assisted or encouraged someone else to commit a crime

Inchoate Offences ‘Inchoate’ literally means ‘at an early stage’ and they are designed to allow for liability to be imposed on those who have taken some steps towards the commission of an offence (whether the crime would have been committed by them personally or by someone else) It allows the police to intervene at an early stage and make arrests before a substantive crime has occurred, thus making a significant contribution towards public safety Where no substantive offence has been committed, obtaining sufficient evidence that an attempt or a conspiracy has actually occurred can be difficult

Inchoate Offences: Attempt The offence of attempt existed at common law but is now regulated by statute, the Criminal Attempts Act 1981. ‘1(1) 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.’

Inchoate Offences: Attempt Actus reus of attempt The 1981 Act imposes liability on those who do ‘an act which is more than merely preparatory to the commission of the offence’ Although the judge must decide whether there is evidence on which a jury could find that there has been such an act, the test of whether D’s acts have gone beyond the merely preparatory stage is essentially a question of fact for the jury If the judge decides there is no such evidence, he must direct them to acquit; otherwise he must leave the question to the jury, even if he feels the only possible answer is guilty

Inchoate Offences: Attempt ‘More than merely preparatory’ The first thing to note is that the test looks forward from the point of preparatory acts to see whether D’s acts have gone beyond that stage Prior to the 1981 Act there were a number of common law tests such as the ‘proximity’ test and Rubicon test

Inchoate Offences: Attempt Shortly afterwards, in Boyle and Boyle (1987), the Court of Appeal referred to a ‘series of acts’ test According to this test, ‘an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted However, in Gullefer (1990), Lord Lane CJ tried to devise a new test that incorporated elements of the proximity, Rubicon and series of acts tests. According to this test D has committed an attempt when he has ‘embarked on the crime proper’

Inchoate Offences: Attempt Mens rea of attempt The essence of the mens rea in attempt cases is D’s intention In Whybrow (1951), the Court of Appeal held that, although on a charge of murder, an intention to cause grievous bodily harm (GBH) would suffice, and where attempted murder was alleged, nothing less than an intent to kill would do

Inchoate Offences: Attempt Relevance of recklessness Where an attempt is charged, it may be possible to obtain a conviction even though D was reckless as to some of the elements of the actus reus This is illustrated in Attorney-General’s Reference (No 3 of 1992) (1994) In that case, a petrol bomb had been thrown from a moving car, narrowly missing a parked car in which four men were sitting and two other men standing nearby, and smashing into a wall

Inchoate Offences: Attempt Relevance of recklessness Those responsible for throwing the bomb were charged with attempted aggravated arson, the court alleging that, while the criminal damage was intentional, they had been reckless as to whether life would be endangered. At the end of the Crown case, the judge ruled no case to answer. He ruled that an attempted crime could not be committed without intent. It was impossible to intend to be reckless; therefore it had to be shown D both intended to damage property and to endanger life. The Court of Appeal held this was wrong: it was enough that D intended to damage property, being reckless as to whether life would be endangered

Inchoate Offences: Attempt Impossibility If a crime is impossible, obviously no one can be convicted of actually committing it; but it does not follow that no one can be convicted of attempting to commit it There may be an attempt where D fails to commit the substantive crime, because he makes a mistake or is ignorant as to certain facts. The crime may be: physically impossible (eg D attempts to pick V’s pocket but, unknown to D, the pocket is in fact empty); or legally impossible (eg D handles goods, believing them to be stolen, when they are not in fact stolen).

Inchoate Offences: Attempt There are also situations where the crime is physically and legally possible but, in the actual circumstances, because of the inadequate methods D plans to use, or does use, it is impossible to commit the substantive offence (eg D attempts to break into a three-inch-thick titanium steel safe using a plastic spoon) At common law, there was no liability for attempt if the crime attempted was physically or legally impossible; only if D used methods that were simply inadequate to commit the substantive offence could D be liable

Inchoate Offences: Attempt This was seen in White (1910), where D was convicted of attempted murder after giving his mother an insufficient dose of poison However, s 1 of the Criminal Attempts Act 1981 states that ‘(1) … (2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible’

Inchoate Offences: Attempt However, despite the new provisions above, in Anderton v Ryan (1985) the House of Lords decided that the 1981 Act had not been intended to affect the situations of physical impossibility However, this decision was overruled less than a year later in Shivpuri (1987), in which D was persuaded to act as a drugs courier. He was given instructions to receive drugs and transport them somewhere else

Inchoate Offences: Attempt D duly collected a suitcase which he believed contained either heroin or cannabis. The suitcase contained several packages of white powder, one of which D took to the delivery point. There, he was arrested and was subsequently charged with attempting to be ‘knowingly concerned in dealing in prohibited drugs’. This was despite the fact that the white powder was not drugs at all. D was nevertheless convicted and the Court of Appeal and House of Lords upheld his conviction.

Inchoate Offences: Attempt In Jones (2007), D wrote graffiti on the walls of train and station toilets seeking girls aged 8 to 13 for sex in return for payment and requesting contact via his mobile phone. A journalist saw one of the messages and contacted the police who began an operation using an undercover policewoman pretending to be a 12-year-old girl called ‘Amy’. D sent several texts to ‘Amy’ in which he tried to persuade her to engage in sexual activity. Eventually, ‘Amy’ and D agreed to meet at a Burger King in Brighton, where he was arrested. At his trial, D pointed out that, as ‘Amy’ didn’t exist, he had not intended to incite any actual person under the age of 13. The judge rejected the submission. D changed his plea to guilty and appealed, but the Court of Appeal upheld his conviction.

Inchoate Offences: Attempt Excluded offences Section 1(4) of the 1981 Act excludes attempts to commit the following: conspiracy aiding, abetting, counselling or procuring the commission of an offence (except where this amounts to a substantive offence, eg complicity in another’s suicide Successful attempts Is failure essential to successful conviction for attempt? D may be convicted of an attempt, notwithstanding that he is also shown to be guilty of the completed offence

Inchoate Offences: Conspiracy Where two or more people have agreed to commit a crime then there may be liability for a conspiracy Gathering enough evidence to prove that the parties had agreed to commit a crime can present problems for the police but, where evidence is available, conspiracy is a valuable weapon for prosecuting those involved in large- scale organised crime. Typical cases involve prosecutions for conspiring to smuggle drugs or conspiring to launder stolen money Until 1977, the law of conspiracy was a matter of common law

Inchoate Offences: Conspiracy Since then, although certain conspiracies continue to exist as common law offences (agreements to defraud and, possibly, to corrupt public morals), the law is regulated by the Criminal Law Act 1977 Section 1(1) provides that a person is guilty of conspiracy if he ‘agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions … (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement’

Inchoate Offences: Conspiracy Actus reus of statutory conspiracy: ‘Agreement’ The offence of conspiracy is complete as soon as there is an ‘agreement’ to commit a criminal offence This means that the parties must have reached agreement to commit the same offence. Sometimes this is not as straightforward as it appears This was seen in Taylor (2002), in which the Court of Appeal decided that an agreement to import class B drugs was not equivalent to an agreement to import class A drugs

Inchoate Offences: Conspiracy Conversely, because the greater includes the lesser, if D agrees to commit a more serious crime than his co-conspirators, he may be held liable. For example D agrees to import class A drugs (eg cocaine or heroin) while E and F have agreed to import class B drugs. D is liable for conspiracy to import class B drugs.

Inchoate Offences: Conspiracy If the parties have reached general agreement to commit an offence, then the courts may be prepared to overlook disagreements as to the details Thus, in Broad (1997), D and E were convicted of a conspiracy to produce a class A drug. The fact that D thought they had agreed to produce heroin while E thought they had agreed to produce cocaine was irrelevant. A conspiracy comes into existence as soon as there is an agreement between two or more conspirators, although the agreement continues until the substantive offence is either performed, abandoned or frustrated

Inchoate Offences: Conspiracy There is certainly no requirement that the substantive offence be committed Indeed, the whole point of the offence of conspiracy is to allow for the prosecution and conviction of those who agree to commit a crime, even if they do not actually succeed in committing it.

Inchoate Offences: Conspiracy ‘With any other person or persons’ Where more than two parties are involved, it is still a conspiracy even if all the conspirators never meet each other. This could happen in the following situations: A ‘wheel’ conspiracy exists where there is a coordinating party, D, who communicates separately with E and F, but E and F never meet A ‘chain’ conspiracy exists where D communicates with E, E communicates with F and F communicates with G.

Inchoate Offences: Conspiracy What is essential is that there is a common purpose or design, and that each alleged conspirator has communicated with at least one other D must agree with someone, although no one need be identified Certain parties are excluded by virtue of the 1977 Act. Section 2(1) provides that the ‘intended victim’ of an offence cannot be guilty of conspiring to commit it

Inchoate Offences: Conspiracy For example, D, a 13-year-old girl, agrees to have sex with an E, an older man. D could not be convicted of conspiring to commit the offence of sexual activity, contrary to s 9 of the Sexual Offences Act 2003 because she would be the ‘intended victim’ of the offence Section 2(2), as amended by the Civil Partnership Act 2004, provides there is also no conspiracy if D agrees with (a) his spouse or civil partner; (b) a person under the age of criminal responsibility; or (c) the intended victim.

Inchoate Offences: Conspiracy Spouse or civil partner (s 2(2)(a)) The exclusion of D’s spouse was a pre-existing common law rule Thus, in Lovick (1993), Mrs Lovick’s conviction was quashed because it had not been established that anyone other than she and Mr Lovick were involved. However, if a third party is involved, spouses may face liability for conspiracy. This was seen in Chrastny (1992)

Inchoate Offences: Conspiracy In Chrastny (1992), there was evidence that Mrs Chrastny had conspired with her husband (to supply cocaine) and that she knew he had conspired with others The Civil Partnership Act 2004 amended the 1977 Act so that D cannot conspire with his or her civil partner. D cannot conspire with E if E is under 10 years of age Moreover, D cannot conspire with E if E is the victim

Inchoate Offences: Conspiracy The exclusion in s 2(2)(a) is controversial, because it means that, if Mr and Mrs X agree to kill their neighbour, no crime has been committed But if the couple were unmarried and reached exactly the same agreement then this would be conspiracy to murder, a very serious offence

Inchoate Offences: Conspiracy Mens rea of statutory conspiracy The parties must: agree … that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement

Inchoate Offences: Conspiracy ‘In accordance with their intentions’ If D and E agree to commit a crime but D, secretly, has no intention of seeing it through, is there a conspiracy? Prior to the 1977 Act, the courts had held that D was not liable for conspiracy unless he intended that the agreement be seen through to its completion However, in Anderson (1986), the House of Lords unanimously held that it was not necessary that D intend to see through the commission of the offence

Inchoate Offences: Conspiracy In Anderson (1986), D agreed with E and F, for a fee of Ј20,000, to purchase and supply diamond wire (capable of cutting through prison bars) which would be used to enable F’s brother, X, who was on remand in Lewes Prison awaiting trial on charges of serious drug offences, to escape. D was also to provide rope and a ladder, transport and safe accommodation where X could hide out. D was charged with conspiracy to effect the escape of a prisoner, but argued that he had no intention of seeing the plan through to its conclusion. He claimed that he hoped to collect most of the Ј20,000 after supplying the diamond wire. He would then use the money to travel to Spain and would take no further part in the escape plan. Finally, he doubted that the escape plan would succeed. Therefore, he had no ‘intention’ to see X escape from prison. Despite all of this, D’s conviction was upheld by the House of Lords.

Inchoate Offences: Conspiracy Common law conspiracy The Criminal Law Act 1977 abolished the offence of conspiracy at common law, except for conspiracies: to corrupt public morals or to outrage public decency to defraud

Inchoate Offences: Conspiracy Impossibility At common law, impossibility was a defence to a charge of conspiracy except where it was down to D and E’s choice of method being inadequate This was seen in DPP v Nock (1978), in which D and E resolved to extract cocaine from a powder, which they believed was a mixture of cocaine and lignocaine. In fact the powder was pure lignocaine hydrochloride, an anaesthetic used in dentistry, which contains no cocaine at all. Their convictions for conspiracy to produce a controlled drug were quashed: it was physically impossible to extract cocaine from the powder. Now, however, s 1(1) of the Criminal Law Act 1977 provides that a person is guilty of statutory conspiracy even if it would be impossible for the agreement to be carried out as intended

Inchoate Offences: Assisting At common law it was an offence to ‘incite’ someone to commit any offence This was committed if D encouraged or persuaded someone else to commit an offence, whether or not that offence actually took place. However, the general offence of incitement was abolished by s 59 of the Serious Crime Act 2007 and three new offences of encouraging or assisting crime have been created instead However, various specific incitement offences survive, including: Soliciting murder, incitement to commit various offences involving the production, possession or supply of controlled drugs, incitement to commit certain sexual acts outside the United Kingdom, inciting a child to engage in sexual activity, inciting a child under 13 to engage in sexual activity, inciting a child family member to engage in sexual activity, and others

Inchoate Offences: Assisting Liability under the Serious Crime Act 2007 Sections 44–46 of the Serious Crime Act 2007 (SCA) create three new offences of doing an act ‘capable of encouraging or assisting’ crime The new offences require the doing of an act ‘capable of encouraging or assisting’ the commission of: an offence, with intent to encourage or assist (s 44) an offence, believing it will be committed and believing that the act will encourage or assist (s 45) one or more offences, believing that one or more of them will be committed and believing that the act will encourage or assist (s 46)

Reading Materials Allen, M., 2003. Textbook on Criminal Law, 7th edn. Oxford: Oxford University Press. Elliott, C. and Quinn, F., 2004. Criminal Law, 5th edn. Essex: Pearson Education. Martin, J. and Storey, T., 2013. Unlocking Criminal Law, 4th edn. Oxon: Routledge.

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