Lecture notes
Inchoate Offences and Complicity
- Module
- Criminal Law
- Institution
- University Of Sussex (UoS)
Lecture notes of 39 pages for the course Criminal Law at UoS (.)
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Inchoate Liability and ComplicityInchoate Liability - Inchoate Offences
What are Inchoate Offences?
Criminalisation of conduct before harms arise, and to prevent the risk of harm from
arising at some point in the future.
Undeveloped crimes, or crimes that have just begun, but are not yet
completed crimes.
Don’t need to show that the full substantive crime has been committed, or
that any harm was actually caused.
Inchoate offences label defendants as being morally blameworthy to justify
the intervention of the criminal law at a much earlier point before the harm is
actually being caused.
More emphasis is placed on the defendant’s mens rea, and less emphasis on the
actus reus.
Principles of causation are irrelevant.
Not looking for a complete crime that has caused harm to a person or
property.
3 general offences:
Attempt.
Conspiracy.
Assisting/encouraging.
Rationale of Inchoate Offences
R v Hamilton (2005).
Fish J (delivering judgment of the majority of the Supreme Court of Canada) –
‘…if the primary act (for example, killing) is harmful, society will want people
not to do it. Equally it will not want them even to try to do it, or to counsel or
incite others to do it. For while the act itself causes actual harm, attempting
to do it, or counselling, inciting or procuring someone else to do it, are
sources of potential harm – they increase the likelihood of that particular
harm’s occurrence’.
R v Gotts (1992).
‘A man shooting to kill but missing a vital organ by a hair's breadth can justify
his action no more than can the man who hits that organ. It is pure chance
that the attempted murderer is not a murderer and I entirely agree with what
Lord Lane C.J. (1991) said: that the fact that the attempt failed to kill should
not make any difference’.
,Different Approaches
Pragmatism – subjectivist approach.
We have inchoate offences to allow law enforcement officials to intervene at
an early stage and prevent harm from coming about.
Aim for the earliest possible intervention.
Main emphasis is on the mens rea.
If a defendant intends to commit a crime, then they are a
dangerous person that needs to be restrained.
Some conduct that can corroborate the intention to commit a
crime at some point in future is required.
Liability can be imposed at a much earlier stage.
Moral culpability – objectivist approach.
A defendant needs to have done enough so that he or she is sufficiently
morally blameworthy and thus deserving of punishment.
Main emphasis is on the actus reus.
Basic Terminology
Attempt – defendant is trying to commit an offence.
A defendant doesn’t actually have to succeed in completing the crime to be
criminally liable – they are criminally liable at the point of trying to commit a
criminal offence.
Conspiracy – defendant agrees with at least one other person to commit an offence.
Criminal liability at the point when an agreement is reached between the
parties to that agreement – no future offence needs to ever happen.
Assisting and encouraging – defendant assists or encourages another person to
commit an offence.
Even if the principal offender who is assisted or encouraged by the defendant
simply walks away and has no interest in committing a future crime, that is
irrelevant – defendant is still liable for the inchoate offence.
Inchoate Liability – Attempt
Definition
Attempt – defendant is trying to commit an offence.
A defendant doesn’t actually have to succeed in completing the crime to be
criminally liable – they are criminally liable at the point of trying to commit a
criminal offence.
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 the offence.
S4(3) – The question of whether acts are more than merely preparatory is a question
of fact for jury to decide.
,Actus Reus – ‘More than Merely Preparatory’?
Actus reus – at what point in the chain of events should the law intervene? (depends
on whether to take a subjective or objective approach).
D tries to murder V .
D forms the intention to murder V by setting light to his house.
D writes it down in a diary and boasts to a friend about it.
D goes to V’s property to conduct surveillance on V.
D goes to buy petrol.
D takes the petrol to V’s house.
D walks up V’s drive.
D takes the lid of the petrol.
D pours the petrol into the letter box.
D strikes a match.
D puts the match through the letter box.
D drops the match.
D flees the scene.
Unbeknown to D, V was not at home.
Criminal Attempts Act 1981 – the Midway Course.
Draws a midway course of not intervening too early, or to intervene too late.
This is attempted through the terminology of ‘more than mere
preparation’.
R v Gullefer (1990).
Leading decision on what constitutes acts which are more than mere
preparation.
The Court of Appeal ruled that the defendant had to have embarked on the
crime proper.
The defendant, seeing that the dog he had backed in a greyhound
race was losing, jumped onto the track and attempted to distract the
dogs by waving his arms.
He hoped that the stewards would declare “no race” whereupon
punters would be entitled to have their money back and he would
recover his £18 stake.
He was convicted of attempted theft and appealed on the ground that
his acts were not sufficiently proximate to the completed offence of
theft to be capable of comprising an attempt to commit theft.
His conviction was quashed – he was not criminally liable for
attempted theft.
At the point when the defendant tried to disrupt the race, this
wasn’t more than mere preparation, it wasn’t embarking on
the crime of attempted theft proper.
, Lord Lane CJ questioned, might it properly be said that when he
jumped on to the track he was trying to steal £18 from the
bookmaker?
He had not gone beyond mere preparation – he had several
more steps to do.
R v Jones (1990).
The defendant had bought some guns, shortened the barrel of one of them,
put on a disguise and had gone to the place where his intended victim, F,
dropped his daughter off for school.
As the girl left the car, the defendant jumped into the rear seat and asked F
to drive on.
They drove to a certain point where the defendant took a loaded sawn-off
shotgun from a bag and pointed it at F and said: “You are not going to like
this.” F grabbed the gun and managed to throw it out of the window and
escaped.
The defendant was convicted of attempted murder and appealed.
In dismissing his appeal Taylor LJ felt that there was evidence from
which a reasonable jury, properly directed, could conclude that the
defendant had done acts which were more than merely preparatory.
His Lordship pointed out that the defendant’s actions in
obtaining, shortening and loading the gun, and in putting on
his disguise and going to the school could only be regarded as
preparatory acts.
But once he had got into the car, taken out the loaded gun and
pointed it at the victim with the intention of killing him, there
was sufficient evidence for the consideration of the jury on the
charge of attempted murder.
o He crossed the line of preparation and had done more
than merely preparatory for the purposes of attempted
murder.
R v Campbell (1991).
The defendant planned to rob a post-office.
He drove a motorbike to near the office, parked it and approached, wearing a
crash helmet.
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