CRIMINAL LAW

INCHOATE OFFENCES Professor Graham Virgo 1. (a) (b) (c) (d) THE AMBIT AND RATIONALE OF INCHOATE OFFENCES Culpability Potential harm State intervention at an early stage Ease of proof 2. (a) ENCOURAGING AND ASSISTING CRIME

Incitement at common law Higgins (1801) 2 East 5 Serious Crime Act 2007 s. 59 Abolition of common law replaced by this Part The common law offence of inciting the commission of another offence is abolished.

The Serious Crime Act (2007) (Commencement No. 3) Order 2008 (SI2008/2504): in force on 2nd October 2008. (b) Statutory offences of incitement Offences Against the Person Act 1861, s. 4 Whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other personshall be guilty of a misdemeanour, and being convicted thereof shall be liable to imprisonment for life. Banks (1873) 12 Cox CC Abu Hamza [2006] EWCA Crim 2918, [2007] 1 Cr. App. R. 27 Incitement to Disaffection Act 1934 (endeavouring to seduce members of HM forces from their duty or allegiance). Sexual Offences Act 2003, s. 10 (inciting a child to have sex), s. 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity), s. 26 (inciting a child family member to engage in sexual activity). Terrorism Act 2006, s. 1(2) (encouraging terrorism) and s. 59 (inciting in England and Wales the commission of acts of terrorism outside the United Kingdom). (c) Encouraging or Assisting Crime Spencer, Trying to help another person commit a crime Criminal Law: Essays in Honour of J. C. Smith (1987)

Law Commission, Inchoate Liability for Assisting and Encouraging Crime (No. 300, 2006) Sullivan [2006] Crim. LR 1047 Leigh [2008] 1 Archbold News 6 Spencer and Virgo [2008] 9 Archbold News 7 (i) The three offences (1) The intentional offence

s. 44 Intentionally encouraging or assisting an offence (1) A person commits an offence if (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he intends to encourage or assist its commission. (2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act. (2) The believing offence

s. 45 Encouraging or assisting an offence believing it will be committed A person commits an offence if (a) he does an act capable of encouraging or assisting the commission of an offence; and (b) he believes (i) that the offence will be committed; and (ii) that his act will encourage or assist its commission. (3) Believing more than one offence

s. 46 Encouraging or assisting offences believing one or more will be committed (1) A person commits an offence if (a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and (b) he believes (i) that one or more of those offences will be committed (but has no belief as to which); and (ii) that his act will encourage or assist the commission of one or more of them. (ii) The Actus Reus of Assisting and Encouraging (1) Inchoate offences: Serious Crime Act 2007, s. 49(1) (2) Encouraging includes threatening or putting pressure on another person to commit the offence: Serious Crime Act 2007, s. 65(1)
2

Race Relations Board v Applin [1973] QB 815 Invicta Plastics Ltd v Clare [1976] RTR 251 (3) You can assist or encourage by (per Serious Crime Act 2007, s. 65(2)): (a) taking steps to reduce the possibility of criminal proceedings being brought; or (b) failing to take reasonable steps to discharge a duty. (4) You can assist or encourage a crime by getting somebody else to do the act of assisting or encouraging: Serious Crime Act 2007, s. 66. (iii) Mens rea s. 47 Proving an offence under this part (2) If it is alleged under section 44(1)(b) that a person (D) intended to encourage or assist the commission of an offence, it is sufficient to prove that he intended to encourage or assist the doing of an act which would amount to the commission of that offence. (3) If it is alleged under section 45(b) that a person (D) believed that an offence would be committed and that his act would encourage or assist its commission, it is sufficient to prove that he believed

(a) that an act would be done which would amount to the commission of that
offence; and (b) that his act would encourage or assist the doing of that act. (4) If it is alleged under section 46(1)(b) that a person (D) believed that one or more of a number of offences would be committed and that his act would encourage or assist the commission of one or more of them, it is sufficient to prove that he believed (a) that one or more of a number of acts would be done which would amount to the commission of one or more of those offences; and (b) that his act would encourage or assist the doing of one or more of those acts. (5) In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence (a) if the offence is one requiring proof of fault, it must be proved that (i) D believed that, were the act to be done, it would be done with that fault; (ii) D was reckless as to whether or not it would be done with that fault; or (iii) Ds state of mind was such that, were he to do it, it would be done with that fault; and (b) if the offence is one requiring proof of particular circumstances or consequences (or both), it must be proved that (i) D believed that, were the act to be done, it would be done in those circumstances or with those consequences; or

(ii) D was reckless as to whether or not it would be done in those circumstances or with those consequences. (8) Reference in this section to the doing of an act includes reference to (a) a failure to act; (b) the continuation of an act that has already begun; (c) an attempt to do an act (except an act amounting to the commission of the offence of attempting to commit another offence). Andrew offers his girlfriend, Belinda, a necklace which he has stolen. (i) Andrew thinks that Belinda believes he has acquired the necklace honestly, but in fact she knows he has stolen it; or (ii) Andrew thinks Belinda knows the necklace is stolen but in fact she believes he acquired it honestly. Is Andrew guilty of assisting or encouraging Belinda to handle stolen goods? (iii) The offences which can be assisted or encouraged (1) The section 44 offence can be committed in respect of all offences, except corporate manslaughter: s. 18(1A) Corporate Manslaughter and Corporate Homicide Act 2007 (2) The section 45 and 46 offences cannot be committed in respect of: (a) One of the other Serious Crime Act offences: SCA 2007, s. 49(5). (b) A listed offence in Schedule 3, Parts 1, 2 and 3, including: OAPA 1861, s. 4 (solicitation of murder) Criminal Law Act 1967, s. 4(1) (assisting persons who have committed an offence) Criminal Law Act 1977, s. 1(1) (statutory conspiracy), s. 5(2) and (3) (common law conspiracy) Criminal Attempts Act 1981, s. 1(1) (criminal attempt) (iv) Defences s. 50 Defence of acting reasonably (1) A person is not guilty of an offence under this Part if he proves (a) that he knew certain circumstances existed; and (b) that it was reasonable for him to act as he did in those circumstances. (2) A person is not guilty of an offence under this Part if he proves (a) that he believed certain circumstances to exist; (b) that his belief was reasonable; and (c) that it was reasonable for him to act as he did in the circumstances as he believed them to be. (3) Factors to be considered in determining whether it was reasonable for a person to act as he did include

(a) the seriousness of the anticipated offence (or, in the case of an offence under section 46, the offences specified in the indictment); (b) any purpose for which he claims to have been acting; (c) any authority by which he claims to have been acting. K Ltd v National Westminster Bank plc [2007] 1 WLR 311 (v) Miscellaneous matters (1) Protected categories of person: Serious Crime Act 2007, s. 51. Tyrrell [1894] 1 QB 710 (2) Cannot be proved whether committed the statutory inchoate offence or the substantive offence: Serious Crime Act 2007, s. 56 (3) Penalties:
(i)

(ii)

If the defendant is convicted of a statutory inchoate offence relating to murder the penalty may be life imprisonment: Serious Crime Act 2007, s. 58(2) For all other offences the penalty is the same as for the anticipated offence: Serious Crime Act 2008, s. 58(3). 3. CONSPIRACY

Criminal Law Act 1977 S. 1(1) if a person 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, either (a) will necessarily amount to or involve the commission of any offence or offences by one or more parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any offences impossible, he is guilty of conspiracy to commit the offence or offences in question. S. 5(1) Subject to the following provisions of this section, the offence of conspiracy at common law is hereby abolished. (2) Subsection (1) above shall not affect the offence of conspiracy at common law so far as it relates to conspiracy to defraud. (3) Subsection (1) above shall not affect the offence of conspiracy at common law and in so far as it may be committed by entering into an agreement to engage in conduct which (a) tends to corrupt public morals or outrage public decency; but (b) would not amount to or involve the commission of an offence if carried out by a single person otherwise than in pursuance of an agreement. Ayres [1984] AC 447
5

Criminal Justice Act 1987, s. 12 (a) Rationale of conspiracy Dennis (1977) 93 LQR 39 Law Commission CP. No. 183 (2007), Conspiracy and Attempts, pp. 25-35 (b) (i) Actus Reus Agreement Bridgwater Case (unreported) Simmonds (1967) 51 Cr. App. R 316 Hawkesley [1959] Crim. LR 211 Dorothy Sayers, The Cave of Ali Baba Meyrick (1929) 21 Cr. App. R 94 Griffiths (1965) 49 Cr. App. R 279 Paull J.: In law all must join in one agreement, each with others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other parties, but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself, but what each must know is that there is coming into existence, or is in existence a scheme which goes beyond the illegal act which he agrees to do. West [1948] 1 KB 709 (ii) Parties to a conspiracy McDonnell [1966] 1 QB 233 Criminal Law Act 1977: S. 2(1) A person shall not by virtue of section 1 above be guilty of conspiracy to commit any offence of he is an intended victim of that offence. (2) A person shall not be virtue of section 1 above be guilty of conspiracy to commit any offence or offences if the only other person or persons with whom he agrees are (both initially and at all times during the currency of the agreement) persons of any one or more of the following descriptions, that is to say
(a) his spouse or civil partner

(b) a person under the age of criminal responsibility; and (c) an intended victim of that offence or of each of these offences. Chrastny [1991] 1 WLR 1381 Duguid (1906) 21 Cox CC 200 (c) Statutory conspiracy Criminal Law Act 1977, s. 1

(i) (ii)

Agreement Intention that offence be committed Anderson [1986] AC 27 Ashton [1992] Crim. LR 667 Edwards [1991] Crim. LR 45 Harvey [1999] Crim. LR 70

(iii)

Intention to play a part Siracusa (1989) 90 Cr. App. R 340 Participation in a conspiracy is infinitely variable, it can be active or passive intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity. Yip Chiu-Cheung [1995] 1 AC 111

(iv)

Recklessness Criminal Law Act 1977 s. 1(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend of know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place. Sakavickas and Reichwald [2004] EWCA Crim 2686, [2005] 1 WLR 857 Harmer [2005] EWCA Crim. 1, [2005] Crim. LR 482 Spencer (2005) CLJ 279 Ali, Hussan, Khan and Bhatti [2005] EWCA Crim. 87, [2006] 2 WLR 316 Saik [2006] UKHL 18, [2007] 1 AC 18 Virgo (2006) CLJ 482 K [2008] 1 Cr. App. R. 1

(v)

Conditional intent Reed [1982] Crim. LR 819 Jackson [1985] Crim. LR 442 OHadhamaill [1996] Crim. LR 509 Saik [2006] UKHL 18, [2007] 1 AC 18

(vi)

Conspiracy and other offences Hollinshead [1985] 1 All ER 850 Suicide Act 1961, s. 2(1)

(d)

Common law conspiracy Law Commission No. 276, (2002) Fraud

(i)

Conspiracy to defraud
7

Scott v MPC [1975] AC 819 Viscount Dilhorne: It is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary rights of his, suffices to constitute the offence of conspiracy to defraud. Adams [1995] 1 WLR 52 Potger (1970) 55 Cr. App. R 42 Moses and Ansbro [1991] Crim. LR 617 Board of Trade v Owen [1957] AC 602, 622 Hollinshead [1985] AC 975 McPherson and Watts [1985] Crim. LR 508 Wai Yu-Tsang [1992] 1 AC 269 Ghosh [1982] QB 1053 Fraud Act 2006 (ii) Conspiracy to Corrupt Public Morals Shaw v DPP [1962] AC 221 Viscount Simonds: In the sphere of the criminal law there is no doubt that there remains in the court of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for. Knuller v DPP [1973] AC 435 (iii) Conspiracy to Outrage Public Decency Knuller v DPP [1973] AC 435 Gibson [1990] 2 QB 619 Rose [2006] EWHC 852 (Admin.), [2006] 1 WLR 2626 (e) Reform of conspiracy

Law Commission CP. No. 183 (2007), Conspiracy and Attempts: (i) (ii) (iii) (iv) (v) (vi) agreement to engage in the conduct element of an offence and (where relevant) to bring about any consequence element. Intention that conduct element and consequence element be engaged in or brought about. Recklessness as regards circumstance elements of substantive offence, save where that offence requires a higher fault element. The defence of acting reasonably in Serious Crime Act 2007, s. 48 should apply to conspiracy. Spousal immunity should be abolished. Victim exemption should be abolished but victim should have a protected person defence.

Dennis [2008] Crim LR 89

4. Criminal Attempts Act 1981

ATTEMPT

S. 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. (a) (i) Mens Rea Intention OToole [1987] Crim. LR 759 Woollin [1999] AC 82 Walker and Hayles [1990] Crim. LR 44 Fallon [1994] Crim. LR 519 (ii) Recklessness Khan [1990] 1 WLR 813; [1990] CLJ 390 A-Gs Reference (No. 3 of 1992) [1994] 1 W.L.R. 409 (iii) Conditional intent Husseyn (1977) 67 Cr. App. R 131n Attorney-Generals Reference (Nos. 1 and 2 of 1979) [1980] QB 180 (b) Actus Reus DPP v Stonehouse [1978] AC 55 Gullefer [1990] 1 WLR 1063 Jones [1990] 1 WLR 1057 Campbell (1991) 93 Cr. App. R 350 Attorney-Generals Reference (No. 1 of 1992) [1993] 1 WLR 274 Geddes [1996] Crim. LR 894 Bowles and Bowles [2004] EWCA Crim. 1608 (c) (i) Miscellaneous Matters Successful attempts Criminal Law Act 1967, s. 6(4) (ii) Which offences can be attempted? Criminal Attempts Act 1981, s. 1 (4)(a) McShane [1977] Crim. LR 369 (iii) (iv) Attempt omissions No attempts Larsonneur (1933) 24 Cr. App. R 74 (v) Attempts and defences
9

Bruzas [1972] Crim. LR 369 Gotts [1992] 2 AC 482 (d) Reform of Attempt

Law Commission CP. No. 183 (2007), Conspiracy and Attempts: Proposal 15: We propose that section 1 (1) of the Criminal Attempts Act 1981 should be repealed and replaced by two separate inchoate offences, both of which would require an intention to commit the relevant substantive offence: (1) an offence of criminal attempt, limited to last acts needed to commit the intended offence; and (2) an offence of criminal preparation, limited to acts of preparation which are properly to be regarded as part of the execution of the plan to commit the intended offence. (i) (ii) (iii) (iv) subjective recklessness should suffice if it suffices for the substantive offence and should apply if any lesser or no fault element is required for the substantive offence; Oblique intent and conditional intent should suffice. Should be liability for an omission. Provide specific examples of acts which amount to criminal preparation:

(1)D gains entry into a building, structure, vehicle or enclosure (or remains therein) with a view to committing the intended offence there and then or as soon as the opportunity presents itself. (2) D examines or interferes with a door, window, lock or alarm or puts in place a ladder or similar device with a view there and then to gaining unlawful entry into a building, structure or vehicle to commit the intended offence within. (3) D commits an offence or an act of distraction or deception with a view to committing the intended offence there and then. (4) D, with a view to committing the intended offence there and then or as soon as the opportunity presents itself: (a) approaches the intended victim or the object of the intended offence, or (b) lies in wait for an intended victim, or (c) follows the intended victim. (v) whether conduct is more than merely preparatory should be a matter of law. (vi) Same maximum sentence for both proposed new offences. (vii) Should be possible to attempt a summary offence. Dennis [2008] Crim LR 1 Rogers [2008] Crim LR 937 5. (a) IMPOSSIBILITY

Attempting to commit a crime which does not exist Taafe [1984] AC 359

(b)

Factual and legal impossibility Donnelly [1970] NZLR 980

10

Taylor (1859) 1 F and F 511 Brown (1890) 24 QBD 357 (i) Encouraging or Assisting Crime (1) Physical impossibility: Serious Crime Act 2007, s. 47(6) (2) Factual impossibility: Serious Crime Act 2007, s. 49(1) (3) Legal Impossibility: Serious Crime Act 2007, s. 47(5), 49(1) (ii) Common law conspiracy DPP v Nock [1978] AC 979 (iii) Statutory conspiracy Criminal Law Act 1977, s. 1(1)(b) (iv) Attempt Criminal Attempts Act 1981 S.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. S.1(3): In any case where (a) apart from this subsection a persons intention would not be regarded as having amounted to an intent to commit an offence; but (b) if the facts of the case had been as he believed them to be, his intention would be so regarded, then , for the purpose of subsection (1) above, he shall be regarded as having had an intent to commit that offence. Anderton v Ryan [1985] AC 560 Williams [1986] C.L.J. 33 It is an account of how the judges invented a rule based upon conceptual misunderstanding; of their determination to use the English language so strangely that they spoke what by normal criteria would be termed untruths; of their invincible ignorance of the mess they had made of the law; and of their immobility on the subject; carried to the extent of subverting an Act of Parliament designed to put them straight. Shivpuri [1987] AC 1 Jones [2007] EWCA Crim 1118

11

The relationship between inchoate offences and accessorial liability

To attempt

To conspire

To aid, abet, counsel or procure

To intend to encourage/ assist

To believe to encourage/ assist Yes

An attempt

Inappropriate

Abolished Criminal Attempts Act 1981, s. 1(4)(a) Inappropriate

No offence Criminal Attempts Act 1981, s. 1(4) (b) No offence Kenning

Yes

A conspiracy

Inappropriate

Yes

Yes

Aid, abet, counsel or procure

Offence Dunnington [1984]

Offence

No offence

Yes

Yes

Intend to encourage/ assist

Inappropriate

Inappropriate

Yes

Yes

Yes

Believe to encourage/ assist

No offence: SCA 2007, s. 49(5)

No offence: SCA 2007, s. 49(5)

Yes

No offence: SCA 2007, s. 49(5)

No offence: SCA 2007, s. 49 (5)

12