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Summary - Criminal Law
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summary of notes on inchoate offences (from 1st year law topics)
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INCHOATE OFFENCES- type of crime committed by taking a punishable step towards the commission of an-
other crime.
- often instances where despite the intentions of a defendant, their desire to commit
their intended crime is not sufficient to fulfil the requirements of the offence. This in-
tended offence will be referred to throughout as the substantive offence. In these in-
stances, where the substantive offence has not itself been committed there may well
be an offence of a different nature committed due to the actions or agreements of the
defendant in preparing to commit the substantive offence. These offences are referred
to as general inchoate offences, inchoate meaning incomplete.
- (S.44(a) SCA 2007) ACTUS REUS = D carrying out an act capable of ‘encouraging or
assisting the commission of another offence’
- (S.44(b)SCA 2007) MENS REA = D must have intended to encourage or assist the
commission of offence
SERIOUS CRIME ACT 2007 :
sets out three offences relating to assisting or encouraging an offence.
• Section 44: Intentionally encouraging or assisting an offence
• Section 45: Encouraging or assisting an offence believing it will be committed
• Section 46: Encouraging or assisting offences believing one or more will be commit-
ted
These offences essentially provide for a defendant who assists another person in commit-
ting an offence to be prosecuted regardless of whether the offence is ever actually at-
tempted, yet alone committed
- section 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: (AR)
(i) that the offence will be committed; and
(ii) that his act will encourage or assist its commission. (MR)
- section 46 (Encouraging or assisting offences believing one or more will be commit-
ted)
(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; (AR) 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.
(MR) Belief that one or more offences will be committed, and; Belief that his act will en-
courage or assist their commission.
Applying s.46(2), it is irrelevant whether the person has a belief as to which of the of-
fences they are specifically encouraging or assisting as the mens rea is a general belief
rather than a belief that must attach itself to a certain specific offence.
1
, DEFENCE:
- section 50
provides a general defence to the encouraging and assisting offences where the defen-
dant’s actions were reasonable or where he was acting with a reasonable belief. These
defences would cover situations such as pulling over to allow a car travelling in excess of
the speed limit to overtake, thus assisting in allowing him to speed but doing so with the
reasonable belief that this is the safest thing in the circumstances. In any such case, the
burden of proof in establishing the defence rests on the defendant.
- section 51
further provides limitation of liability to the offences where the offence that was encour-
aged or assisted by the defendant was one which was created in order to protect a de-
scription of person which the defendant fulfils and accordingly the defendant was the vic-
tim, or the intended victim of the offence. For example, consider the topical case study of
the teacher Jeremy Forrest who ran away with one of his 15-year-old pupils. In relation to
the charges of abducting a child and engaging in sexual intercourse of a minor, both of-
fences which the girl encouraged and assisted him in, the young girl could not be
charged with this as under s.51 she was the very person who the offence was designed
to protect
CHARGING AND SENTENCING:
- section 48(3)
sets out the defendant will only be found guilty in relation to a belief in an offence being
committed that is so specified in his indictment. Accordingly, it is vital at the CPS charge
the defendant with the specific relevant offences to ensure a conviction.
- section 49
Act further provides the CPS with the remit to charge a person who encourages and as-
sists another party to in return encourage and assist someone to commit an offence. This
would cover behaviour for example such as saying “if you tell him to do it he’ll listen to
you”. The section, however, only allows such a charge to be brought under s.44 of the
Act, which requires that they intend that the offence in question will be committed. A
charge under s.45 or 46 will fail as a mere belief that the offence would be committed is
insufficient in relation to this behaviour
CONSPIRACY
- section 1 Criminal Law Act 1977
if a person agrees with any other person or persons that a course of conduct shall be pur-
sued 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 of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence
or any of the offences impossible
he is guilty of conspiracy to commit the offence or offences in question
- section 2
exempts from liability for the offence the following categories of people:
• Married or civil partners
• A person under the age of criminal responsibility
• An intended victim of one of the offences
2
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