Inchoate Offences

1. Inchoate OffencesMain Objectives:What is incitement?What is conspiracy?What is an Attempt?Why are inchoate offences necessary?What is the difference between preparation and embarking on a crime proper?What mens rea is required in Attempt cases?

2. Inchoate Offences These are offences where the main one has not been completed. They are concerned with planning and preparing for an offence to be committed. The main ones are:- Incitement Conspiracy Attempt Can not be charged with an offence of incitement, conspiracy or attempt. It must be incitement to commit specific offence …

3. Incitement Common Law offence Involves one person encouraging another to commit a crime. Actus Reus for Incitement is one of following:- Advice Financial Payment Threats Pressure Persuasion Goading Mens Rea involves D intending that the offence should take place and knowing that it is an offence. D can be guilty even if main offence has not been carried out or is not impossible. Invicta Plastics ltd V Clare 1976- CO Guilty of advertising a product which encouraged people to commit driving offences If in magistrates court max penalty is that for main offence If in Crown Court Judge can sentence inciter to a greater punishment than principal offender. Without inciter offence would probably not been committed.

4. Fair or Not In groups consider Should the person who commits a crime receive a lesser sentence than those who encouraged them? Give reasons for your answer. 5 min

5. Conspiracy Covered by statute law and interpreted by courts. Where two or more people agree to commit a criminal offence. Actus Reus is agreement- once agreed intention then the offence has occurred. Intended offence does not need to be carried out. Not all parties to the crime have to have met but must agree. Defences: Spouses, Victim or person under age of criminal responsibility are involved in agreement. Defence of withdrawal may not be enough if crime then carried out. Mens Rea is intention to carry out main offence. Sentence is the maximum of the crime committed.

6. Group Exercise • Why do you think the defence of withdrawal may not be available in conspiracy cases? Give reasons for your answer • Why do you think there is a defence where the victim, spouse or person under age of criminal responsibility are involved in agreement allowed?

7. Attempt is More than just preparation! • Copy out s 1 (1) Criminal Attempts Act 1981 using a different colour, leave a line between each sentence. Pg 59 (This forms the actus reus of attempt). 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

8. ATTEMPTS The distinction between what is merely preparatory and what is more than merely preparatory is made by case law. Gullefer (1987) Read page 60. The D’s acts were simply preparation, he had not started on the crime proper. In this case he had not submitted his betting slips and he had not committed the act of theft. Held-NO ATTEMPT!!

9. Common Law Tests of Attempt Before attempt was defined by the 1981 Attempts Act the courts used several different tests to decide if D had actually done enough towards commission of offence to be guilty of offence. Main two were proximity test and last act test Proximity test- R V Robinson 1915 Rubicon Test- R V Widdowson 1986 Series of Acts- Boyle V Boyle 1986 Gullefer Test- R V Gullefer 1990 Geddes Test- R V Geddes 1996 In groups look at the following cases ( pg 59-61) and explain what each test looks at and how they are different to each other.

10. ATTEMPT Therefore D must go beyond just preparing for a crime!

11. ATTEMPT • In contrast, in the following cases attempt was established…. AG REFERENCE(no. 1 of 1992)(1993) No need to have reached the point of no return. The fact that he couldn’t get an erection did not mean there was no attempted rape. Read page 60. Do you agree with this ruling?

12. Taking off the hinges… BOYLE & BOYLE (1987) D had done part of a series of acts which would have led to a crime being committed- in this case a burglary. This means taking a door off one of it’s hinges being part of a series of acts was sufficient as an attempt, that is to say it was ‘more than merely preparatory’ for attempted burglary RE JONES (1990)-What were the facts??? Attempt or no attempt?? Note; Despite the above, there are no hard and fast rules to decide what is merely preparatory and what is more than preparatory, ultimately each case is decided on it’s own individual circumstances!!!!

13. ATTEMPT • Mens Rea Mens rea for an attempt at the main offence is the same as the mens rea for committing the offence in full. If this is not proven=no attempt=not guilty! Husseyn (1977) Easom (1971) The mens rea for theft requires an intention to permanently deprive. As the accused put the bag back down without removing any content-he did not possess the required mens rea and thus could not be convicted of attempted theft.

14. CONDITIONAL ATTEMPT • What precedent was set in: -AG Reference (no’s. 1& 2 of 1979)(1979) Do you think this ruling is more appropriate?

15. ATTEMPT • Recklessness is not normally sufficient as mens rea for attempt. Millard & Vernon (1987) • Exception-recklessness as to one part of the offence is sufficient.. Read page 63

16. ATTEMPT • Before the CAA 1981, a D could not be guilty of an offence that was legally or physically impossible to commit. • This is now changed as a result of Section 1 (2) of the Act. • Read page 65. Do you think the ruling in Shivpuri was fair?

17. ATTEMPT • THINK- Where D sets off to murder V, not knowing V has already passed away in his sleep, and approaches the body with a sharpened blade and with an intent to kill V… Surely if D has demonstarted a willingness to commit the offence of murder with his actions being more than preparatory then should he too not be punished same as an actual murderer???? • The law on attempt, allowing attempts at the impossible fills this gap in public safety.

18. ATTEMPT • ‘Discuss whether the current law relating to attempted crimes strikes the right balance between protecting society and convicting those who need to be punished.’ (OCR, Unit 2571, June 2004) Relevant issues= • -Protecting the Public????- Inchoate offences are all aimed at allowing early prevention of crime, allowing police to make arrests at earlier stages, dealing with the threat prior to the occurrence of the full offence thus affording society a greater degree of protection. It would be ridiculous to expect the police to wait until a member of the publics has been made a victim.

19. ATTEMPT Similarly with Campbell, did the accused need to have stepped inside the post office until he could be arrested for attempt. or would it be when he uncovered the imitation fire arm or threatened force or when he demanded the money???? At what point can arrest for attempt be made??? THINK-Should it really be left until the proposed danger becomes a real threat????? • Such decisions are therefore failing in protecting the well being of the general public!!!

20. ATTEMPT • -Impossibility- • Can you identify why decisions such as those in Shivpuri and Anderton & Ryan caused the controversy they did?? Is punishing based on intention going too far in an effort to protect the public or is it striking the right balance???

21. R v Robinson 1915 • D was a jeweller who had insured his stock against theft. He decided to claim on the policy by hiding stock around the shop. He tied himself up and then called the police. • His scheme was uncovered and he was prosecuted for obtaining money from his insurer to the value of £1200. • His defence argued that since he had not obtained, filled in or sent the claim off he was not guilty of the offence. • C of A agreed and quashed his sentence. His acts were not immediately connected with the main offence. However he may have been charged with wasting police time

22. R v Gullefer 1987 D jumped onto a race track in order to have the race declared void and so enable him to reclaim money he had bet on the race. However he did not submit the betting slips. His conviction for attempting to steel was quashed because the act was merely preparatory to committing the offence.

23. Geddes 1996 • D was found in the boys lavatory block of a school, in possession of a large kitchen knife, some rope, and masking tape. He had no right to be in the school. He had not contacted any of the pupils. • His conviction for attempted false imprisonment was quashed . Court asked 2 qu. • 1. had he moved from preparation to implementation • 2 had he done something tangible to show that he was trying to commit the offence or where his actions simply putting himself into a position to commit the act?

24. R V Boyle and Boyle Both found by a door whose lock and hinges had been broken. D had done part of a series of acts which would have led to a crime being committed- in this case a burglary, had they not been caught by the policeman

25. R v White 1910 • A son poisoned his mother with potassium cyanide but before the poison could take effect and kill her she died of a heart attack. • He was not liable for her death but was convicted of attempted murder instead of murder

26. Questions • Define the crime of incitement • What is the punishment for incitement? • Give three examples of incitement • Outline the key issues in Invicta Plastics Ltd V Clare 1976 • What are the main defences against conspiracy? • What criminal issue does R V White 1910 illustrate? • Outline the key elements of the Criminal Attempts Act 1981 • Explain the main common law tests used to establish attempts • Explain the mens rea of attempts

27. Exam Question • Incitement to commit a crime is as serious as conspiracy to commit a crime. Comment (50 marks)

28. Bibliography • Exam Qu, Case Law, and Section QuestionsTaken from • Martin.J, Criminal Law for A2, Hodder Arnold, London, 2006- course text book