Cje Karolina Kremens, LL.M., Ph.D. Wojciech Jasiński, Ph.D. Department of Criminal Procedure Faculty of Law, Administration and Economics University of Wrocław Class XVII, XVIII FORMS OF COMMITTING AN OFFENCE Criminal Law I

FORMS OF COMITTING AN OFFENCE FORMS OF COMMITTING AN OFFENCE large and incoherent group of forms in which an offence can be committed ‘perpetration’ of a crime as a typical form of commitment of a crime examples of other forms: ATTEMPT AIDING (helping) in commitment of a crime

FORMS OF COMITTING AN OFFENCE WORK IN PAIRS: What forms of committing an offence can you recognize? Can you assign them to some distinguished groups?

FORMS OF COMITTING AN OFFENCE INCHOATE OFFENCES FORMS OF COMPLICITY

FORMS OF COMITTING AN OFFENCE INCHOATE CRIMES ‘just begun’ preliminary crimes they can be committed even when the substantive offence was not completed and there was no harm forms: preparation – creating conditions for performing an act leading directly to the prohibited act being carried out acquiring or preparing tools to commit crime gathering information conspiracy – agreement (arrangement) made between two or more people to commit a crime attempt – actions aiming to commit an act, which is subsequently not committed

FORMS OF COMITTING AN OFFENCE FORMS OF COMPLICITY ‘parties to criminal offences’ forms: accomplice (joint criminal enterprise) – committing a crime with another person not equal actions same intent aiding and abetting – helping another person commitment a crime (facilitating) also help provided after commitment of a crime incitement or instigation to commit a crime – talking another person into commitment of a crime leadership in commitment of a crime – committing a crime through another person ordering commitment of a crime

FORMS OF COMITTING AN OFFENCE INCHOATE CRIMES

thinking about commitment of a crime preparation (conspiracy)attemptperpetration

INCHOATE CRIMES ENGLAND AND WALES traditionally inchoate crimes in English Law attempt conspiracy incitement (recently abolished) no Code of Criminal Law in England and Wales separate act to regulate the issue of inchoate crimes Criminal Attempts Act of 1981

INCHOATE CRIMES ENGLAND AND WALES attempt act that is more than mere preparation it is hard to identify the strict line between the acts which are ‘merely preparatory’ and ‘more than merely preparatory’ example: a person walking up and down past the post office in a possession of dark glasses and an imitation of firearm arrested outside the post office attempt or preparation?

INCHOATE CRIMES ENGLAND AND WALES attempt distinction falls between doing an act “which shows that he has actually tried to commit the offence” and doing something that suggests that “he has only got ready or put himself in a position or equipped himself to do so” application of this distinction is problematic in practice crucial is the intent of the perpetrator impossibility of committing the full crime by the chosen means is irrelevant

INCHOATE CRIMES ENGLAND AND WALES conspiracy crime of statutory conspiracy 1.two or more people must agree that a course of conduct will be pursued which, if the agreement is carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence 2.the alleged conspirators must intend that the full offence be committed, in full knowledge of the relevant circumstances 3.the impossibility of committing the full crime by the agreed means is not relevant

INCHOATE CRIMES ENGLAND AND WALES incitement abolished by the Serious Crime Act 2007 other offences has been introduced instead of the incitement: intentionally doing an act capable of encouraging or assisting the commission of an offence encouraging or assisting an offence in the belief that it will be committed encouraging or assisting offences believing that one or more of a number of contemplated offences will be committed

INCHOATE CRIMES GERMANY attempt attempt to commit serious offenses – always punishable attempt to commit less serious offenses – punishable only when specifically provided by statute elements: intent with respect to committing an offence (full mens rea required) must immediately aim at commitment of an offence (the actor must have come very close to taking the first step but none of the actions described in the offence were not yet undertaken)

INCHOATE CRIMES GERMANY conspiracy an agreement of two or more persons to commit a crime only in case of serious offenses (minimum sentence of one year’s imprisonment) preventing the commission of a crime by the perpetrator (conspirator) gives him impunity

INCHOATE CRIMES WORK IN PAIRS: Present all elements of the attempt as generally accepted within criminal justice systems.

INCHOATE CRIMES ATTEMPT attempt exists when the perpetrator, in accordance with his individual plan, has advanced so far that he or she need not take any further substantial intermediate step before doing what the statute define as criminal conduct – NOT a mere preparatory act elements: intent to commit particular criminal act ( mens rea ) dolus directus dolus eventualis action and ommision of an act ( actus reus ) immediacy in aiming at commitment of an act (just step before commitment) lack of actual perpetration of an act (incomplete act or even act impossible to be committed) it is crucial to interpret the elements of attempt in the light of the particular crime that was about to be committed

INCHOATE CRIMES ATTEMPT criminal sanctioning in case of attempt: generally similar to the sanction for the perpetration but may be considered as a mitigating consequence the voluntary withdrawal from perpetration of a crime after attempt is not subjected to a penalty for any penalty but the unsuccessful voluntary withdrawal from perpetration of a crime can be only considered as a mitigating circumstance

INCHOATE CRIMES UNSUCCESSFUL ATTEMPT types of unsuccessful attempt: attempt possible to achieve – the perpetrator did not achieve his goal to commit an offense but the goal was possible to be achieved; two options the perpetrator aimed at his goal but unfortunately missed it someone stopped the perpetrator from achieving his goal attempt impossible to achieve - the perpetrator did not achieve his goal to commit an offense, which, from the very beginning ( ex ante ), was not possible to be achieved other distinction: finished attempt unfinished attempt – only some actions leading to completing the attempt were completed

INCHOATE CRIMES UNSUCCESSFUL ATTEMPT Can the actions prescribed below be considered as attempts possible or not possible to achieve? 1.not breaking into the car because of the lack of capability of the perpetrator 1.giving a strong poison to a person that did not die from it because of the individually high tolerance of the victim to the poison 2.burglary to the empty safe

INCHOATE CRIMES UNSUCCESSFUL ATTEMPT attempt impossible to achieve: the attempts impossible to achieve are punishable because of the negative evaluation of the behavior of the perpetrator circumstances under which the impossible attempt is punishable: lack of the object of the attack lack of the proper means to commit a crime lower penalty in case of impossible attempt – lack of the real danger

FORMS OF COMITTING AN OFFENCE FORMS OF COMPLICITY

FORMS OF COMPLICITY - GENERALLY forms of perpetratorship individual perpetratorship complicity committing a crime through another person ordering commitment of a crime accessorial liability instigation (inducement) aiding (aiding and abetting)

FORMS OF COMPLICITY INDIVIDUAL PERPETRATORSHIP most common committing an offence individually one person fully conducts all elements of certain crime examples?

FORMS OF COMPLICITY COMPLICITY two or more people jointly commits an offence co-perpetrators; accomplices achieving an agreement is essential explicit agreement – made orally between co-perpetrators implied agreement – even without oral confirmation an agreement must be achieved before or during the commitment of a crime but joining the group during commitment leads only to liability for the criminal actions from that moment unless it was a part of the agreement and it was his/her role to join the action at a later stage

FORMS OF COMPLICITY COMPLICITY – Question I Two people (Thief A and Thief B) agreed to steal money from a bank threatening customers and employees with shotguns. During the course of events Thief A got too excited and shot one of the bank employees to force cooperation of the rest of the hostages. For commitment of what kind of crimes Thief A and B can be found liable and why?

FORMS OF COMPLICITY COMPLICITY – Question II Thief A decided to steal money from a bank threatening customers and employees with a shotgun. When he entered the bank he saw Thief B with a shotgun threatening customers and employees with an aim to get money. For commitment of what kind of crimes Thieves A and B can be found liable and why?

FORMS OF COMPLICITY COMPLICITY differentiating between complicity or aiding in commitment of a crime co-perpetrators agree to commit a crime together but only certain elements of a crime are fulfilled by them together; the rest only by some of them most important: significance of the role of the individual in commitment of a crime current approach: if without actions undertaken by the individual a crime wouldn’t be committed his or her actions must be considered as complicity

FORMS OF COMPLICITY COMMITING AN ACT THROUGH ANOTHER PERSON leadership in commitment of a crime not a direct commitment of a criminal act actual and real control over the commitment of prohibited act power to decide on commencement of an illegal act, changes in the conduct and interception of an act more than instigation or aid in commitment of a crime

FORMS OF COMPLICITY ORDERING COMMITMENT OF A CRIME not leading the individual perpetrator leaving all decisions to the perpetrator beside the direct order to commence it taking advantage of the dependency of individual perpetrator lack of the dependency – possible instigation organized crimes groups

FORMS OF COMPLICITY INSTIGATION inducing commitment of a crime lack of domination or control over perpetrator must appear before the perpetrator presents his or her intent to commit a crime if it happens after presenting the intent by the perpetrator it might be considered as intellectual aiding only direct mens rea in inducing commitment of a crime only action (not ommission) criminal liability regardless of the liability of the perpetrator (even if a perpetrator’s criminal liability might be excluded)

FORMS OF COMPLICITY AIDING common law: aiding and abetting making a commitment of a crime easier for another person in particular by: supplying tools supplying transportation giving advices providing information direct and indirect mens rea act and omission of an act aid provided before or during commitment of a crime (after – partisanship)

FORMS OF COMPLICITY CASE A plans the theft of certain valuable articles from a country house. He talks to B and C, who agree to carry out the burglary for him. They approach D, who has worked at the house, for information which will help them to gain entry. They arrange for E to drive them to the house in a large van and to transport the stolen goods after the burglary; and they agree with F that he should come and position himself near the main gates of the house in order to warn them if anyone approaches. What is the liability of A, B, C, D, E, F?

FORMS OF COMPLICITY ENGLAND AND WALES “Whosoever shall aid, abet, counsel, or procure the commission of any indictable offence, whether the same be an offence at common la or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted, and punished as a principal offender” (Sec. 8 Accessories and Abettors Act 1861) same liability of accomplices as of a principal offender convenient for the Prosecutor – no need to provide in a courtroom an answer who is a principal offender and who is an accomplice

FORMS OF COMPLICITY ENGLAND AND WALES liability for different, more serious offence in case of joint criminal enterprise objective test of foreseeability, to be applied at the point at which the assistance was given or the agreement reached “probable consequence” foreseen widely discussed issue seems unfair to defendants (some claim the contradiction with Human Rights Act) it is enough that accomplice was aware that the other person in joint criminal enterprise is carrying a gun

FORMS OF COMPLICITY ENGLAND AND WALES liability for different, more serious offence in case of joint criminal enterprise objective test of foreseeability, to be applied at the point at which the assistance was given or the agreement reached “probable consequence” foreseen widely discussed issue seems unfair to defendants (some claim the contradiction with Human Rights Act) it is enough that accomplice was aware that the other person in joint criminal enterprise is carrying a gun

FORMS OF COMPLICITY GERMANY forms of complicity perpetratorship: individual perpetratorship joint criminal enterprise committing a crime through another person forms of accessorial liability: instigation aiders

FORMS OF COMPLICITY GERMANY distinguishing between perpetrator and other forms historically: subjective factor perpetrator - the intent to commit a crime oneself aider – the intent to support another person nowadays: objective and subjective elements of the situation perpetrator – domination in the commission of the offence aider – no control just help

FORMS OF COMPLICITY SANCTIONING - GENERALLY criminal liability in case of all forms of complicity is the same as principal offender (individual perpetrator) responsibility within the limits of the intent of accomplice irrespectively of the liability of other participants (even if their liability is excluded through one of the defenses) personal circumstances (excluding, mitigating, aggravating are only considered for the person they relate to) practice: lighter sentences on accomplices (beside joint criminal enterprise) than on principal offenders common law more strict on the liability in case of joint criminal enterprise

FORMS OF COMPLICITY QUESTIONS What is a difference between instigation and commitment of a crime through another person? What is a difference between aiding and joint criminal enterprise?