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8.2 General Inchoate Offences Lecture

1.0 Introduction

There are 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 (the substantive offence). In these instances, where the substantive offence has not itself have 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!

2.0 Assisting or Encouraging an Offence

The 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 committed

2.1 Intentionally encouraging or assisting an offence

Section 44 of the Serious Crime Act 2007 provides:

(1) A person commits an offence if-

(a) he does an act capable of encouraging or assisting the commission of an offence; and

(b) he intends to encourage or assist its commission.

(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.

2.1.1 Actus Reus

  • Defendant commits an act, and;
  • The act is capable of encouraging or assisting the commission of an offence

Note here that the defendant will not be guilty by way of omission.

2.1.2 Mens Rea

  • Intention to encourage or assist in the commission of the offence

This is a specific intention not reckless.

2.2 Encouraging or assisting an offence believing it will be committed

Section 45 of the Serious Crime Act 2007 provides:

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:

(i)that the offence will be committed; and

(ii)that his act will encourage or assist its commission.

2.2.1 Actus Reus

  • Defendant commits an act, and;
  • Act is capable or encouraging or assisting the commission of an offence

2.2.2 Mens Rea

  • Belief that the offence will be committed, and;
  • Belief that his act will encourage or assist the commission of the offence

The prosecution should consider belief here to mean the same as it does in the context of handling stolen goods.

2.3 Encouraging or assisting offences believing one or more will be committed

Section 46 of the Serious Crime Act 2007 provides that:

(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; 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.

2.3.1 Actus Reus

  • Defendant does an act, and;
  • The act is capable of encouraging or assisting in commission or one or more offences.

2.3.2 Mens Rea

  • Belief that one or more offences will be committed, and;
  • Belief that his act will encourage or assist their commission.

Belief should be interpreted in the same manner as in the s.45 offence.

Applying s.46(2), it is irrelevant whether the person has a belief as to which of the offences they are specifically encouraging or assisting as the mens rea is a general belief.

2.4 Defence

Section 50 of the Serious Crime Act 2007 provides a general defence to the encouraging and assisting offences where the defendant’s actions were reasonable or where he was acting with a reasonable belief.

Section 51 of the Act further provides limitation of liability to the offences where the offence that was encouraged or assisted by the defendant was one which was created in order to protect a description of person which the defendant fulfils and accordingly the defendant was the victim, or the intended victim of the offence.

2.5 Charging and Sentencing

Despite the provision in s.46 of the Act that the belief of the defendant is that one of more offence may be committed, where these offences carry differing sentences these should be charged as separate counts of encouraging and assisting.

Section 48(3) of the Act 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.

Section 49 of the Act further provides the CPS with the remit to charge a person who encourages and assists another party to in return encourage and assist someone to commit an offence.

The offences are all triable either way and the defendant is liable to the same maximum sentence as for the full offence. The only exception to this is in relation to murder where the life sentence becomes a discretionary one and not a mandatory one.

3.0 Conspiracy

The offence of conspiracy is provided for both under statute and in the common law.

3.1 Statutory Conspiracy

Section 1 of the Criminal Law Act 1977 provides that:

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

Section 2 of the Act exempts from liability for the offence the following people:

  • Married or civil partners
  • People under the age of criminal responsibility
  • An intended victim of one of the offences

Although there is no requirement for any action in preparation for the offence to be carried out past the agreement, in practice there will often be steps taken towards committing the offence past a mere discussion as without this it would be very difficult to prove the conspiracy in a court.

3.1.1 Actus Reus

  • An agreement
  • As to a course of conduct

Agreement

Agreement must involve actual communication of words, either spoken or written.

It is not necessary for every party to be involved in actioning the agreement for them to satisfy this element of the actus reus, simply being part of the agreement is sufficient.

Case in Focus

Yip Chiu-Cheung v The Queen (1994) 2 All E.R. 924

The case of R v Shillam [2013] EWCA Crim 160 clarifies that whilst the motive behind the agreement is irrelevant.

Course of conduct

This does not need to be to a certain set course and could be dependant on external factors.

Case in Focus

R v Jackson [1985] Crim LR 442

3.1.2 Mens Rea

  • Intention to be party to the agreement, and;
  • Intention that the offence will be carried out by one or more of the conspirators.

Only intention will suffice and mere recklessness will be insufficient.

Case in Focus

R v Saik [2006] UKHL 18

The offence must actually be intended and not just discussed as a theoretical possibility.

Case in Focus

R v G and F [2013] Crim LR 678

3.1.3 Charging and Sentencing

The offence of conspiracy is triable either way. The sentence for conspiracy will not exceed the sentence for the crime that was being conspired to.

3.2 Common Law Conspiracy

Common law conspiracy was abolished by the enactment of the Criminal Law Act 1977 except in relation to two things provided for in s.5 Act, where it is stated that the abolition will not affect the common law offence where it is committed by entering into an agreement to engage in conduct that:

  • Corrupts public morals or outrages public decency; or,
  • Amounts to a conspiracy to defraud

3.2.1 Conspiracy to corrupt public morals or outrage public decency.

This upholds the crime to conspire to corrupt public morals (Shaw v DPP [1962] AC 220) and the crime to conspire to outrage public decency (Knuller v DPP [1973] AC 435).

3.1.2 Conspiracy to Defraud

This offence exists to deal with situations where a person dishonestly obtains property but the offence is not covered by any of the Theft Act 1968 provisions.

3.1.3 Actus Reus for Common Law Conspiracy

The actus reus is satisfied by:

  • Conspiring to corrupt public morals or decency or;
  • Conspiring to defraud

3.1.4 Mens Rea for Common Law Conspiracy

The mens rea is the same as for statutory conspiracy with the added element of dishonesty. For the purposes of conspiracy dishonesty should be assessed subjectively using the Ghosh test set out in R v Ghosh [1982] EWCA Crim 2:

  1. Were the defendant’s actions dishonest by the standards of reasonably honest people?
  2. Did the defendant realise that his actions were dishonest?

3.1.5 Charging and Sentencing Common Law Conspiracy

There is not a set sentence in place for conspiracy to corrupt public morals and decency, it is left to the discretion of the judge.

Conspiracy to defraud carries a maximum sentence of 10 years’ imprisonment.

4.0 Attempt

Section 1 of the Criminal Attempts Act 1981 provides:

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.

(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.

(3)In any case where—

(a)apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but

(b)if the facts of the case had been as he believed them to be, his intention would be so regarded,

then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.

Subsection (4) further provides that this only applies to indictable offences and lists exemptions to which the Act will not apply. It is not possible under the Act to be guilty of the attempt to commit:

-  A summary offence

- Conspiracy

  • Aiding, abetting, counselling, procuring or suborning the commission of an offence
  • Assisting or accepting or agreeing to accept consideration for not disclosing evidence in relation to an arrestable offence.

Where a defendant is on trial for the charge of the full offence but it cannot be established on the facts that the offence was completed, then on indictment the court may still convict the defendant for the attempt.

4.1 Actus Reus

  • An act which is more than merely preparatory in the commission of an indictable offence.

Whether the defendant in any case has gone far enough to complete the actus reus of the attempt of their intended offence is a question of fact that will require assessment in the circumstances of each individual case.

Case in Focus

R v Geddes (1996) 160 JP 697 and R v Campbell [1991] 93 Cr App R 350

If the jury hold that the preparatory stage has been surpassed then the actus reus is complete, even where the defendant then withdraws their desire to commit the intended offence. 

4.2 Mens Rea

  • Intention to commit the offence

As an attempt is an offence of specific intent, it requires the defendant to harbour an actual intention to commit the offence in question. Anything less, for example recklessness will not be sufficient, even where it would be sufficient as the mens rea for the full offence.

Case in Focus

R v Shivpuri [1986] 2 All ER 334 and R v Taaffe [1984] AC 539

4.3 Charging and Sentencing

Attempt is a triable either way offence and s.4 of the Criminal Attempts Act 1981 provides that the offence of attempt carries the same maximum sentence for the full offence attempted.


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