Summary
Summary Criminal Law - Inchoate Offences
- Module
- Criminal Law (LU1005)
- Institution
- City University (City)
1. Attempted 2. Conspiracy 3. Assisting or encouraging
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INCHOATE OFFENCES**The Rotherham 12: there was a march planned by a white supremacy group. People came from all over - “self-
defence is no offence”
Inchoate offences:
Means ‘incomplete’
Different types of inchoate offences:
1. Attempted X – D is criminalised for attempting X – EG: attempted murder
2. Conspiracy to X – D is criminalised for agreeing with another to commit X
3. Assisting or encouraging X – D is criminalised for assisting or encouraging P to commit X – EG: assisting or
encouraging murder
P = Principal offender
It is irrelevant whether X actually happens
Justifying Inchoate Offences:
Doesn’t it go against the criminal elements of MR – EG: there is no harm in 2 people deciding to kill another, and
nothing happens
Possible justification for criminalising ‘harmless wrongdoing’:
- Practical benefit – harm prevention – allows intervention before the harm occurs
- Moral blameworthiness – emphasis on the ‘guilty mind’
- The problem of moral luck – EG: you wanted to kill John but your shot missed so he didn’t die – if there wasn’t
inchoate offences, you would not be liable.
Problems with justifications:
- Do ‘wicked thoughts’ alone deserve punishment?
- Fairness to D v protection of society
- At what point to intervene? ‘intelligence led policing’ – with the access the police have, they will be able to
predict what people are going to do. It becomes possible for police to intervene at a much earlier state. –
they might intervene at a point where the evidence might not stand up in court
ATTEMPTED
Criminal Attempts Act 1981 s1(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 an offence.’
Normally, the full offence does not occur, but it’s irrelevant why not – EG: missed shot, changed mind
Attempt available for indictable offences only (s1(4)) – EG: attempted assault or battery
Same maximum penalty as complete offence – EG: attempted murder = life sentence
ACTUS AR: an act which is more than merely preparatory to the commission of an [indictable]
REUS offence.
What does this mean? 3 tests exist
1. Last act test: only allows for attempt liability where D has completed all acts that she
believes are necessary to commit the principal offence
- Gullefer 1990: ‘embarked on the crime proper’
- Jones 1990: ‘the last act which lay in his power towards the commission of the offence.’
- Stonehouse 1978: ‘where D has crossed the Rubicon and burned their boats’
o Criticised because it leaves it till very late to intervene – EG: John may have killed
Jane
2. Series of acts test: finds liability if D’s acts were part of a series which would result in the
commission of the offence if not interrupted = incomplete attempt
- Allows for early criminalization and thus early intervention by the police to protect
society
- But if you intervene at that point you need more evidence because the crime wasn’t
completed – won’t be enough – the fear has been expressed that using this test will
tempt the police to put pressure to confess = police malpractice
3. CAA 1981 Test: more than merely preparatory acts = sufficient evidence of attempt. A
midway between 1 and 2?
- R v Jones 1990: D got in backseat of car and pointed a sawn-off shotgun at V. after a
struggle, V escaped unharmed. Charged with attempted murder – even though D was 3 steps
away from completing principal offence (still had to put finger on trigger and shoot)
his acts were still capable of being ‘more than merely preparatory’.
How do the courts know what test to apply? – judge’s discretion
D cannot attempt by omission
Is the AR of Gullefer 1990: put a lot of money on 1 dog in the race. D jumped onto dog racing track hoping to
attempt get his betting money back
applied too - Appeal allowed – D’s acts weren’t beyond mere preparation: he would still have had
, narrowly? to go to the bookmakers, demand his money – further steps needed.
Campbell 1991: D arrested in street outside post office wearing full visor motorcycle helmet,
carrying imitation firearm and note demanding money – not attempted robbery, as he hadn’t yet
entered
- Appeal allowed – D’s acts weren’t beyond mere preparation: he hadn’t yet entered
the post office or made any demands of the cashier - further steps needed.
Geddes 1996: D was arrested after being seen in school toilets (without good reason) equipped with
knife, rope and masking tape – not attempted false imprisonment (kidnap) – he was just ‘lying in wait’
- Appeal allowed – D’s acts weren’t beyond mere preparation: D was lying in wait but
hadn’t confronted a potential victim - further steps needed.
K 2009: asked a boy if he wanted to watch porn with him in his office – not attempted s12 SOA 2003
(causing a child to watch a sexual act), D had not led V into his office.
- Appeal allowed – D’s acts weren’t beyond mere preparation: D hadn’t led child to
the laptop - further steps needed.
Are the tests Dagnall 2003: D approached V at bus stop saying he wanted sex, pushed her against fence, pulled
applied her hair and covered her mouth – attempted rape – why wasn’t Geddes ruled the same
inconsistently? R 2009: messaged sex workers asking if there were any 12-year olds available – attempted s14 SOA
2003 – he never got close to any child – K wasn’t held guilty
Tosti 1997: D examined padlock of farm building, cutting equipment found nearby – attempted
burglary – evidence is not conclusive based on the material facts – Campbell wasn’t convicted
Impossible attempts:
‘Legal impossibility’ – D believes her/his action amount to a crime, when it doesn’t ( EG: act not criminal, think
you are walking around with a bag of drugs but its just icing sugar) – no attempt
- Taaffe 1983: D attempted to import foreign currency believing that it was a crime, it wasn’t – no liability for
attempt
‘Factual impossibility’ – D tries to commit a crime through inadequate/insufficient means ( EG: gun not loaded)
– always an attempt
- Criminal Attempts Act 1981 s1(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.’
- Anderton v Ryan: D bought a video recorder believing it to have been stolen. HOL: allowed appeal – ‘the mind
alone is guilty; the act is innocent’ – Bridge LJ
- Shivpuri 1987: D supplied harmless vegetable matter to undercover officers believing it to be heroin or cannabis.
HOL: overruled Anderton – ‘what turns what would otherwise, from the point of view of the criminal law, be an
innocent act into a crime is the intent of the actor to commit an offence’ – Bridge LJ. D was convicted
- Post-Shivpuri: even where D’s acts don’t go beyond mere preparation in fact, they may still satisfy the
AR of attempt if they go beyond mere preparation on the facts as D believed them to be.
MENS REA
s1(1) requires D to act ‘with intent to commit an offence’ (intent to commit the ‘full offence’)
Must have intent
Requirement that D acts with the intention to commit the AR of the principal offence applies regardless of
the MR requirements of that principle offence.
Whybrow 1951: D wired up a soap dish in his bathroom to give his wife electric shock. D only intended to cause GBH,
not kill his wife. He didn’t kill her - intent to cause GBH is not enough for attempted murder – must have
intent to kill
Attempted criminal damage: intent needed, not just recklessness
Conditional intent: where D decides to do something only if/unless a certain condition arises – EG: goes
through bag to steal phone but is not in there – leave bag.
- AG’s references (Nos 1 and 2 of 1979) 1980: - D entered building searching for items of value – conditional
intent. CA: conditional intent to steal is still intention
Important to assess what D intended – Easom: should have been charged with ‘attempting to steal contents of
handbag’
All intent is to some extent conditional – EG: I will steal tomorrow unless I win the lottery’
BUT…. Khan 1990: D and others tried to have sex with V (16)- all were reckless as to her consent. Those who succeed
were convicted of rape. D was charged with attempted rape.
- Criminal Attempts Act 1981 s1(1): D must have intended all elements of the AR
- COA: D must have intended the conduct but need not have intended V’s non-consent (circumstance),
recklessness was sufficient for liability for attempted rape.
- This changes the law on MR of attempt. Intent needed re. conduct. recklessness re. circumstances
suffice if this is the MR in the full offence.
- Criticisms of Khan:
a) Difficulty in separating offence elements – in order to apply Khan’s approach, such separation is
essential: although MR as to the circumstance element can mirror that required for the principal
offence, MR as to the conduct and result elements are fixed at intention
b) Lack of clarity - Sometimes MR for a circumstance is not clear – EG: current rape law in SOA 2003:
‘lack of reasonable belief in consent’ needed, or recklessness (as in Khan?) likely recklessness
c) What if the principal offence includes an ulterior MR element? Doesn’t tell us what MR will be
required as to an ulterior MR element within a principle offence
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