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Inchoate Offences (I)

Inchoate Offences (I). Dr. Maris K öpcke Tinturé, Hilary 2013 Maris.Kopcke@law.ox.ac.uk. Inchoate =. ‘ just begun ’ ‘ undeveloped ’ ‘ incomplete ’. D shoots at V but misses. Attempt Conspiracy Encouraging or Assisting Crime. A Map of Inchoate Liability.

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Inchoate Offences (I)

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  1. Inchoate Offences (I) Dr. Maris Köpcke Tinturé, Hilary 2013 Maris.Kopcke@law.ox.ac.uk

  2. Inchoate = ‘just begun’ ‘undeveloped’ ‘incomplete’

  3. D shoots at V but misses Attempt Conspiracy Encouraging or Assisting Crime A Map of Inchoate Liability D1, D2 and D3 agree to kill V D lends P a rifle to kill V

  4. Preliminary: Inchoate offences penalize preparation, planning or encouragement towards the commission of a substantive offence. • Free-standing: Inchoate liability arises before and regardless of whether the substantive offence is committed… • Harmless wrongs?: …and hence it arises before and regardless of whether any concrete harm results. Features of Inchoate Offences

  5. Liable for Attempt Example: Attempt time bullet misses + Liable for Murder Liable for Attempt time bullet hits, killing V

  6. Liable for Conspiracy Example: Conspiracy time Murder frustrated by V’s holiday + The rest: liable for murder as accomplices? Those who commit it, liable for Murder as principals Liable for Conspiracy time Murder takes place

  7. D=Liable for Assisting Example: Assisting & Encouraging time Murder frustrated by V’s holiday D=Liable for murder as accomplice + P=liable for Murder as principal D=Liable for Assisting time Murder takes place

  8. AGAINST • Consequences matter • D could have changed his mind • Danger of criminalizing innocent behaviour • FOR • Liability should not depend on luck • Yes, consequences matter • Official intervention before it’s too late Justification of Inchoate Liability Substantive offence committed

  9. Consequences matter • No thought-crimes, please • No harm has resulted • D could have changed his mind • Liability arises before “last act” (attempts), and there’s no defence of withdrawal (conspiracy, SCA) • Denies D’s autonomy • Breaches the correspondence principle • Danger of criminalising innocent behaviour • MR is decisive, but hard to prove (police malpractice?) • Can we rely on prosecutorial discretion? Should we? Arguments Against

  10. Liability should not depend on luck • If crime frustrated, D no less blameworthy • No thought crime: intention translated into action • Yes, Consequences matter • Subjecting an innocent person to a risk is itself a harm • We should seek to prevent the consequences • Official intervention before it’s too late • Preventive arrest is not enough to forestall future crimes • Under s24 Police and Criminal Evidence Act 1984, it is lawful to arrest without warrant a person reasonably suspected of being “about to” commit a crime • But if the arrested person was not already committing an inchoate offence, no prosecution can be brought and so no punishment and incapacitation Arguments For

  11. More blameworthy Where do we draw the line? Focus of legal and moral argument Way too early! Too early? Too late? Way too late! time V shot Effective intervention

  12. Inchoate Liability Correspondence Principle Actus Reus Mens Rea Constructive Liability Actus Reus Mens Rea

  13. Inchoate Offences Correspondence Principle Actus Reus Mens Rea Substantive offences defined in an inchoate mode • s5 Terrorism Act 2006 • Fraud Act 2006 • Burglarious entry (s9(1)(a) Theft Act) • Theft (especially after Gomez/Hinks)? • Some crimes of possession

  14. Inchoate offences Substantive offences Double Inchoate Offences • Attempt • Conspiracy • Assisting & Encouraging • s5 Terrorism Act 2006 • Fraud Act 2006 • Burglarious entry (s9(1)(a) Theft Act) • Theft (especially after Gomez/Hinks)? • Crimes of possession Inchoate offences Inchoate offences • Conspiracy • Assisting & Encouraging (s44) • Attempt • Conspiracy • Assisting & Encouraging • Attempt

  15. … are (in general) NOT defences to inchoate liability. • Withdrawal is not a defence: • Unlike in Complicity. • Can at most mitigate the sentence: Lankford [1959] • PRO the current position: • ‘temporal logic of the law’ (Ashworth) • inchoate liability is free-standing • CON the current position: • no incentive to abort plan • less blameworthy (purpose wasn’t firm)? Withdrawal and Impossibility

  16. Impossibility is not a defence: • Not to attempts: s1(2), s1(3) Criminal Attempts Act 1981; Shivpuri [1986] • Not to conspiracy: s1(b) Criminal Law Act 1977 • To assisting and encouraging? Unclear. • PRO the current position: • D is just as blameworthy (fault-centered approach) • CON the current position: • D poses no risk (risk-centered approach) • Overcriminalization: criminalising ‘objectively innocent’ situations (buying a video recorder believing it is stolen) • Police fabrication: “Anyone carrying a bag might be liable to be arrested and to have attributed to him or her the remark: ‘I thought it contained drugs’” (Ashworth) Withdrawal and Impossibility

  17. Attempts

  18. (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. Criminal Attempts Act 1981 AR A person does an act which is more than merely preparatory MR With intent to commit an offence

  19. Sorry …it’s not that simple!

  20. An act • Omission? Unclear. • Which is “more than merely preparatory” • Merely preparatory = not liable • Preparatory, but not merely so = liable Actus Reus Incomplete Attempt Complete Attempt time “merely preparatory” “last act” “more than merely preparatory”

  21. “First act” • “Substantial step”(US Model Penal Code + examples) • “More than merely preparatory”(current UK law) • “Can properly be regarded as part of the execution of the plan to commit the intended offence”(Law Commission proposal in 2007, taken back in 2009) • “Unequivocal act” (Davey v. Lee [1968]) • “Last act”(Eagleton [1855]) Other tests time “last act” “first act” “more than merely preparatory”

  22. Question of fact (jury) • s4(3) CAA, Jones [1990] • Judge must first decide whether as a matter of law D’s acts could be sufficient to amount to an attempt and, if so, it is for the jury to decide as a matter of fact • Legal interpretation • Words to be given their natural meaning (Jones [1990]) • Trying v. getting ready or putting oneself in a position to do so (Geddes [1996]) • Embarking on the crime proper (Gullefer [1990]) “More than merely preparatory”

  23. Better to compare facts? “More than merely preparatory” NOT More than merely preparatory More than merely preparatory • Campbell [1990]: D is about to enter a post office carrying an imitation gun and a threatening note • Geddes [1996]: D hides inside a school lavatory in possession of a knife, rope and binding tape • Gullefer [1990]: D disrupts a dog race to have the race declared void so that his stake is refunded • Jones [1990]: D points loaded gun at V • Tosti [1997]: D bends down to examine the padlock, outside the building he plans to burgle

  24. Can we extract any rationale? • Physical proximity? • But Campbell was only 1 yard away, and Tosti was also outside the building • How many acts under D’s control remain to be accomplished? • But Tosti still had to use his oxy-acetylene cutting equipment (hidden in a hedge) to enter the building • ‘Confrontation’ with the victim or with the property (Clarkson) • Jones confronted V. Campbell, Geddes and Gullefer did not confront V. • Tosti ‘confronted’ the building. “More than merely preparatory”

  25. “… an offence to which this section applies” (s1(1) CAA 1981) • Which offences cannot be attempted? (s1(4) CAA 1981) • Summary offences (eg common assault and battery) • Conspiracy • Complicity • Offences of assisting offenders (s4(1), s5(1) CLA 1967) • Which offences can be attempted? • All others • Including: Assisting and encouraging crime (Serious Crime Act 2007), assisting and encouraging suicide (s2 Suicide Act 1961) Scope of Attempt

  26. Impossible Attempts • Impossibility is not a defence • s1(2), s1(3) CAA 1981 (supposed to clarify but…) • Anderton [1985] on ‘objectively innocent acts’ overruled by Shivpuri [1986] • “More than merely preparatory”? • Judged on the facts as D believed them to be (s1(2), s1(3) CAA 1981) ? Vs.

  27. Mens Rea of Attempt “with intent to commit an offence” (s1(1) CAA 1981) An act which is more than merely preparatory Intending to commit the FULL offence Actus Reus = ULTERIOR INTENT Mens Rea

  28. Elements of Attempt An act which is more than merely preparatory AR Conduct Conduct Act is deliberate MR Conduct “intend the substantive offence” Ulterior intent Circumstance Consequence of the substantive offence

  29. “Intend the offence” – really? Conduct Intention? Ulterior intent Circumstance Intention? Consequence Intention? Alas, no… but for a good reason.

  30. Attempt vs. Success I don’t consent I don’t know whether she consents Penetrates: liable for rape Fails to penetrate: not liable even for attempted rape!

  31. Circumstance of the main offence Khan [1990]: D liable for attempted rape so long as he is reckless as to whether V consents • FOR: Khan was well decided • It’s often sheer luck whether offence is completed or not • CON: Only intent/knowledge/belief should suffice for an attempt • Contravenes s1(1) (“with intent to commit an offence”) • Simester & Sullivan: “D intends to rape only if it is his purpose ‘to have sexual intercourse without consent’” – not enough if he only suspects (=is reckless) that V doesn’t consent • “attempting” = “trying” = purposeful behaviour

  32. Circumstance of the main offence What is the rule in Khan [1990]? • In attempts, D must always be at least reckless about the circumstance. • In attempts, D must have the same MR about the circumstance as is required for the full offence. • Khan is a pre-Sexual Offences Act 2003 case. When Khan was decided, the MR about the circumstance for rape was recklessness. (Now it is lack of reasonable belief.) • Rule 2 is more plausible. • But will the courts hold someone liable for attempted rape so long as he lacks a reasonable belief that V consents? • Law Commission proposal: Rule 2 (same MR as for the full offence) but at least recklessness

  33. Ulterior Intent in Attempts Conduct Intention Ulterior intent Circumstance = substantive offence? Khan [1990] s1(3): if offence is impossible: knowledge/belief Consequence Intention (incl. virtual certainty) Mohan [1976], Pearman [1984]

  34. Consequence of the main offence • Intent doesn’t mean desire • “A decision to bring about, in so far as it lies within the accused’s power, the commission of the offence…, no matter whether the accused desired that consequence or not” (Mohan) • Intent includes virtual certainty (Mohan, Pearman) • Consider Murder: • Murder: enough if intent to cause GBH • Attempted Murder: only if intent to kill • Consider ABH (s47): • ABH: enough if reckless as to touching (battery) • Attempted ABH: only if intent to cause ABH

  35. Ulterior Intent of Attempts Conduct Intention Ulterior intent Circumstance = substantive offence? Khan [1990] s1(3): if offence is impossible: knowledge/belief Consequence Intention (incl. virtual certainty) Mohan [1976], Pearman [1984] What about the “missing element test” in AG Ref. 3 of 1992?

  36. “Missing element” test AG Ref 3 of 1992: AR element missing: Intent AR elements present: = MR as for full offence • Says it follows Khan, but does it? • On the facts of Khan (penetration missing), same result • But what if circumstance missing (eg you damage to your own bike, thinking it’s someone else’s)?

  37. Ulterior Intent of Attempts or Conduct Intention Ulterior intent = substantive offence? Circumstance “Missing element test” (AG Ref 3 of 1992) Khan [1990] s1(3): if offence is impossible: knowledge/belief Consequence Intention (incl. virtual certainty) Mohan [1976], Pearman [1984] Eg dishonesty, intention permanently to deprive, to cause a gain/loss, to commit an offence inside building… Any other MR of the full offence

  38. Elements of Attempt An act which is more than merely preparatory AR Conduct Conduct Act is deliberate MR Ulterior intent

  39. AR-Conduct: act is more than merely preparatory to causing GBH Example: Attempted GBH MR-Conduct: deliberate act ✓ Ulterior intent about the Conduct of the full offence: Intention (= missing element test) ✓ No Circumstance element in GBH! ✓ Ulterior intent about the Consequence of the full offence: Intention (= missing element test) ✓ ✓

  40. Conspiracy

  41. Murder on the Orient Express Let’s all get on this train to jointly kill Cassetti!

  42. s1(1) Criminal Law Act 1977 “…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 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.”

  43. Elements of Conspiracy An agreement to pursue a course of conduct that will necessarily involve the commission of an offence by one or more of the parties Intention that the agreement is carried out Actus Reus = ULTERIOR INTENT Mens Rea

  44. Actus Reus of Conspiracy • Agreement • Beyond the stage of negotiation (Walker [1962]) • Mutual understanding (Ardalan [1972]) • Joint project (Griffiths [1965]) • To pursue a course of conduct that will necessarily involve the commission of an offence • By at least one of the parties

  45. Actus Reus: Agreement • Beyond the stage of negotiation (Walker [1962]) Hmm… not sure if I want to get on this train and kill Cassetti with you guys. I’ll give you a definite answer tomorrow, ok?

  46. Actus Reus: Agreement 2. Mutual understanding • normally through physical meeting • Ardalan [1972]: “criminal purpose held in common” My purpose is to kill Cassetti, and I think I’m the only one on this train who has this purpose. My purpose is to kill Cassetti, and I think I’m the only one on this train who has this purpose.

  47. Actus Reus: Agreement 3. Joint project (Griffiths [1965]) Hi, I’m on this train to kill Cassetti. How funny! I’m on this train to kill the driver. Ah, it’s a small world. Well, so long! So long!

  48. Actus Reus: Agreement • To pursue a course of conduct that will necessarily involve the commission of an offence – “necessarily”? • All projects can go wrong (eg gun doesn’t fire) • Saik [2006]: all agreements concerning the future are subject to conditions • Implicit conditions (‘if the police isn’t around’) • Explicit conditions (‘if the IRA ends the cease-fire’, O’Hadhmaill [1966]) • Distinguish: conditions that affect the agreement’s existence (Walker) v conditions that affect the agreement’s execution

  49. Actus Reus: Agreement • By at least one of the parties to the agreement • “We agree that you will kill him inside the train”

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