Inchoate offences Flashcards
(32 cards)
Eagleton (1854) 5 Dears C.C. 515
attempts - more than merely preparatory - ‘last act’ doctrine
= only the last act constitutes an attempt.
Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are… on the statement in this case, no other act on the part of the defendant would have been required. It was the last act, depending on himself, towards the payment of the money, and therefore it ought to be considered as an attempt.
Gullefer [1990] 1 W.L.R. 1063
attempts - more than merely preparatory
It is not necessary to apply the two conflicting lines of case law that precedes the 1981 Act, under which D must have reached a ‘point of no return’ in respect of the full offence, or must have done an act ‘forming part of a series of acts’ which constitute the crime
The 1981 Act provides a midway course between both different lines of authority: it does not require that D reach a point beyond retreat and ‘more than merely preparatory’ defines where the ‘series of acts’ begins
= no conviction
attempts ‘ begins when the merely preparatory acts come to an end and the defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular case. ‘
D climbed onto a greyhound racetrack in an attempt to stop a race
The dog on which he had placed a £18 bet was losing and he had hoped to recover his stake by stopping the race, the stewards decided not to stop the race
D was charged with attempting to steal the £18 from the bookmaker under s1(1) and s1(4) Criminal Attempts Act
Jones [1990] 1 W.L.R. 1057
attempts - more than merely praparatory
We do not accept Mr. Farrer’s contention that section 1(1) of the Act of 1981 in effect embodies the “last act” test derived from Reg. v. Eagleton. Had Parliament intended to adopt that test, a quite different form of words could and would have been used…
convicted of attempt
= Clearly his actions in obtaining the gun, in shortening it, in loading it, in putting on his disguise, and in going to the school could only be regarded as preparatory acts. But, in our judgment, 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. It was a matter for them to decide…
Jones’s wife left him with another. The gun had a safety lock and he had not removed it. T
Campbell [1991] 93 Cr. App. R. 35
attempts - more than merely preparatory
contrast this narrow approach with Tosti
conviction quashed
‘If a person, in circumstances such as this, has not even gained the place where he could be in a position to carry out the offence, it is extremely unlikely that it could ever be said that he had performed an act which could be properly said to be an attempt.’
Was going to rob a post office. Was arrested in front of the post office. The police finds the sunglasses, a threatening note and a imitation firearm. But he had decided not to do it when he was arrested.
Geddes (1996) 160 JP 697
Principle demonstrated = ‘there is no rule of thumb test’ (on a case by case basis)
D is not convicted.
Bingham draws a distinction between:
* a defendant has done an act which shows that he has actually tried to commit the offence in question
* a defendant who has only got ready or put himself in a position or equipped himself to do so.
= only the former shoul be culpable
Gone to the toilet and found various things in the backpack (rope, knife, tape). Suspected of kidnapping children.
Tosti [1997] EWCA Crim J0128-1
attemps - more than merely preparatory.
= the question was effectively put to the jury
As we have said, there may be actions which are preparatory which are not merely so and which are essentially the first steps in the commission of the offence. In our judgment in this case the facts which were proved in evidence were sufficient for the judge to leave to the jury the question whether those acts were or were not merely preparatory and whether the offence had been attempted. For those reasons we would dismiss these appeals.
D Had driven in a car to a barn and examined the padlock
MS [2021] EWCA Crim 600
attempts - more than merely preparatory
Put otherwise, when arrested, she was in the position of attempting to commit the offence in question, rather than simply getting ready or putting herself in a position to do so, and we have no doubt she had embarked “upon on the crime proper” (booking a ferry, forging an authorisation)
Divorced Mother of a child. Got into a relationship with a foreign national and then refused to bring the child out of the country. Orders were issued making it an offence to leave the country with the child. She booked tickets on a ferry. She had passports and was driving there though was not nearly close to the ferry(85 miles away). Were those acts more than merely preparatory
Whybrow (1951) 35 Cr. App. R. 141
attempts - MR - intent to commit an offence
pre Act case but approved in Walker and Pac
attempted murder the mens rea must be intent to kill, and not merely intent to do GBH. (the MR is narrower)
Mohan [1976] 1 Q.B.
attempts - MR - intent to commit an offence
The Court of Appeal in R v Mohan quashed D’s conviction, ruling that a conviction for an attempt to cause bodily harm by dangerous driving requires proof that D intended to cause harm by dangerous driving. It was not sufficient to prove that D did not care whether he hit the police officer when attempting to escape, nor that he knew it was likely.
Trying the hurt the policeman with his car.
Pearman (1985) 80 Cr. App. R. 259
attemps - MR - intention to commit an offence
= For an attempt, the prosecution must prove that the defendant intended (either in the purposive or oblique sense) to commit the primary offence. Recklessness is insufficient.
This is taken to be some evidence that the approach to intention endorsed in Nedrick and Woollin should be applicable in attempts as well as in murder
During a traffic stop, the defendant drunkenly swerved his car towards police officers. This knocked one officer into his police car. Another police officer avoided a collision by jumping behind the police car.
Walker (1990) 90 Cr. App.
attempts - MR - intention to commit an offence
To avoid any misunderstanding, we repeat that in the great majority of cases of attempted murder, as in murder, the simple direction will suffice, without any reference to foresight. In the rare case where an expanded direction is required in terms of foresight, courts should continue to use virtual certainty as the test, rather than high probability.
appeal dismissed
D’s dropped a man from a balcony and he survived. They appealed their conviction for attempted murder on the basis that that the trial judge was confusing foresight of death with an intention to kill and should have directed the jury in the Nedrick terms of “virtual certainty”.
Khan [1990] 1 W.L.R. 813
attempts - MR
at 819 per Russell LJ:
‘The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely, an intention to have intercourse plus a knowledge of or recklessness* as to the woman’s absence of consent.
… the attempt does not require any different intention on the part of the accused from that for the full offence of rape.’
For the purposes of s1(1) Criminal Attempts Act 1981, D intends to commit a crime where D intends the act and consequences and is at least reckless about circumstances where recklessness suffices for the main offence
Here there was no penetration, but the acts were clearly more than preparatory. How can you commit an offence that merely requires recklessness?
Attorney-General’s Reference (No 3 of 1992) [1994] 1 W.L.R. 409
attemps - MR - similar to Khan
The ‘missing element test’
“One way of analysing the situation is to say that a defendant, in order to be guilty of an attempt, must be in one of the states of mind required for the commission of the full offence and did his best, as far as he could, to supply what was missing from the offence.”
Current case
The prosecution must prove that the defendant intended to supply missing physical elements of the completed offence
The endangerment of life is not a physical element of the substantive offence but a pure mental element since it is not necessary to show that anybody’s life has been endangered; it suffices that the defendant had unjustifiably foreseen the risk of such endangerment
Hence, intention to damage property and intent or recklessness to endangerment of life
D acquitted
Proposed the missing element test for mens rea of attempt: to be liable for attempt D must intend a missing physical (actus reus) element of the substantive offence to be present
D’s convicted of aggarvated crimnal damage unde s 1(2) of the CDA 1971 which requires recklessness as to endangerment of lives suffices for the substantive offence of aggravated arson
Pace and Rogers [2014] EWCA Crim 186
attemps - MR
= much harder test for the prosecution to satisfy
These arguments have led some commentators to suggest that a distinction must be drawn between the two cases. One possibility is that Pace and Rogers was a case that involved an impossible attempt: the property was not stolen and so, whatever they did, the defendants could not commit the crime. Khan was not an impossible attempt, in that, had the defendants managed it, a penetration was possible.
‘as a matter of ordinary language and in accordance with principle, an “intent to commit an offence” connotes an intent to commit all the elements of the offence.’
charged under s. 1 of the Criminal Attempts Act 1981 with attempting to conceal, disguise, or convert criminal property (an offence under s. 327(1) of the Proceeds of Crime Act 2002). They worked at a scrap-metal yard and had bought what they suspected was stolen metal from two men (Andy and Kinger). In fact, these were undercover police officers, who were engaging in Operation Symphony, which was designed to test whether scrap-metal yards would accept stolen metal. The metal that Andy and Kinger offered was not stolen. The trial judge rejected the defendants’ submission of no case to answer. He held that suspicion as to the criminal nature of the property was sufficient for the mens rea of the attempt. Pace and Rogers appealed.
Anderton v Ryan [1985] 1 A.C. 560
attempts - impossible attempts
Anderton v Ryan is not the law: it was overturned very soon afterwards in the following case
The HoL: holds that they cannot be guilty of an attempt because it is not an offence to buy a video cassette recorder that is not stolen.
Cf. the umbrella example + other examples
Ds has bought a video recorder and they thought that it was a stolen item (when in fact it was not).
R v Shivpuri [1987] AC 1
attempts - impossible attempts
‘I am satisfied on further consideration that the concept of “objective innocence” is incapable of sensible application in relation to the law of criminal attempts. ‘
issues with this case:
* how far should it go: believer in voodoo were to stick a pin in a figure of their enemy, believing to kill him ? Many commentators take the view that there comes a point at which the facts as the defendant believes them to be are so far from reality that the Shivpuri principle should not apply
* in Shivpuri, it was suggested that Ryan may not have been guilty of attempting to handle stolen goods because she suspected, rather than believed, that the goods were stolen and her intent was only to obtain a cheap video player. The problem is that Shivpuri could have said a similar thing: his intent was to make money; he suspected that the package contained drugs, but he did not really care about that. The line between suspicion and knowledge or intent is a fine one, and may prove problematic in future cases.
= The actus reus of an attempt was doing an act that was more than merely preparatory to the commission of the offence. In a case of an ‘impossible attempt’, where, on the actual facts, it was not physically possible to complete the offence, the question was whether, on the facts as the defendant believed them to be, they were doing an act that was more than merely preparatory to the commission of the full offence
Pyare Shivpuri was convicted of attempting to be knowingly concerned in dealing with heroin (a controlled drug) contrary to s. 1(1) of the Criminal Attempts Act 1981. On a visit to India, Shivpuri was approached by a man who offered to pay him £1,000 if he delivered a package of drugs. When he met the man, the defendant was arrested. He was found by police carrying a package with powdered substance and more of the substance was found in his flat. In fact, analysis showed the substance to be a vegetable material and not an illegal drug at all.
Easom [1971] 2 Q.B. 375
attempts - conditional intent
also linked to theft
not convicted
= concerned the question of whether intention to steal anything which the defendant considered worth taking amounted to a present intention to steal it was decided that it did not. The court also held that Easom could not be convicted of attempted theft of those items for the same reasons.
he defendant picked up a handbag left in a cinema, rummaged through the contents and then, uninterested, replaced the handbag without having taken anything.
Husseyn (1978) 67 Cr. App. R. 131:
attempts - conditional intent
To establish attempted theft, the prosecution had to prove that the defendant had a ‘present’ intention to steal the equipment when he performed the more than merely preparatory act. A conditional intention to steal something only if there are valuables is not a present intention to steal the specific property. The judge’s direction had therefore been incorrect and the conviction was unsafe.
The police spotted the defendant standing in the middle of the road by a parked van, looking up and down. Moments later, an alarm went off. At that point, the police realised that another person was tampering with the van’s back door. When a police officer approached the van, both men fled. Inside the van was some valuable equipment. convicted of attemted theft
Attorney-General’s Reference (1 and 2 of 1979) [1980] 1 Q.B. 180
attempts - conditional intent.
compare with Husseyn and Easom
the Court of Appeal decided that if a defendant had a conditional intent ( i.e. intended stealing if there was anything worth stealing) he could be charged with an attempt to steal.
AG Ref (1 of 1975) [1975] 1 Q.B. 773
complicity - accessorial liability
We approach section 8 of the Act of 1861 on the basis that the words should be given their ordinary meaning, if possible. We approach the section on the basis also that if four words are employed here, “aid, abet, counsel or procure,” the probability is that there is a difference between each of those four words and the other three, because, if there were no such difference, then Parliament would be wasting time in using four words where two or three would do.
= this is not necessarily today’s view
= there is no requirement of meeting of the minds
= To procure means to ‘produce by endeavour’, there need not be agreement or discussion between the person committing the offence and the person procuring it
D added alcohol to P’s drink without P knowing
P was convicted for drink driving.
The judge dismissed the case against D for procuring P’s offence as there was no shared intention between D and P
Rahman [2008] UKHL 45
‘plain vanilla’ joint entreprise
At one stage the exact relationship of this to Section 8 of the Accessories and Abettors Act 1861 was slightly unclear, but it is of no consequence no
= convictions upheld
= if in the course of a joint enterprise to inflict unlawful violence a principal party killed with an intention to kill which was unknown to and unforeseen by a secondary party, the principal’s intention was relevant ( : the anwer is no)
After a history of violence a group of men, including the four defendants, chased and attacked another group including V. The weapons used in the attack included knives, metal bars, pieces of wood and baseball bats, and V was killed by deep stabs to the back. The principal attacker was probably one of those who escaped arrest. R and others were convicted of joint enterprise murder and appealed.
On appeal to the House of Lords, the question certified was whether, if in the course of a joint enterprise to inflict unlawful violence a principal party killed with an intention to kill which was unknown to and unforeseen by a secondary party, the principal’s intention was relevant: (i) to whether the killing was within the scope of a common purpose to which the secondary party was an accessory; (ii) to whether the principal’s act was fundamentally different from the act or acts which the secondary party foresaw as part of the joint enterprise.
Chan Wing-Siu [1985] AC 168
parasitic joint liability
overruled in Jogee
= …a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation or, putting the same idea in other words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal liability lies in participating in the venture with that foresight. (note that the threshold is really low)
Three Ds broke into the victim’s home, with two Ds killing him and one slashing his wife with knives
Ds claim that they had the purpose of reclaiming a debt that the victim owed to one of them
All three Ds were convicted of murder and wounding with intent to do grievous bodily harm
Ds appealed on the basis that Ds not only had to foresee a probable risk of the primary offence, not just a possible risk or that the risk was too remote
Powell and English [1999] 1 A.C. 1.
‘fundamental departure’.
most of this is overruled with Jogee
= in these cases where the primary offender used a much more dangerous weapon than that foreseen by D2, so that crime B became a ‘fundamental departure’ from the common purpose:
