INCOHATE OFFENCES

INCITEMENT – CONSPIRACY – ATTEMPT

INCITEMENT

Incitement is a common law offence punishable with fine or imprisonment. Its existence dates back to Higgins (1801) and recent case of Goldman (2001).

Actus reus: D incites another person to do an act which if done, will involve commission of an offence. The actus reus requires more than a mere expression of desire that a consequence be brought about. There must be some element of persuasion or encouragement or some form of pressure (Race Relation Board v Applin [1973])

Mens rea: D intends or belief that the person incited if he acts as incited will do so with the mens rea required for the offence.


Mikosiyan (1966) Justice Holmes in the South African Case was approved in Goldman. CA in Marlow (1977) pointed out that the definition omits reference to the word ‘encourage’ Most (1881) that it is not necessary for the solicitation to be directed towards a particular individual, it may also be addressed to a number of person such as newspaper advertisement.

Clayton (2005): A incite boy 14 to commit burglary and was convicted of inciting, but because the boy was incapable of committing the offence at the time, the offence was quashed. Curr (1966) which was wrongly decided was overruled by Clayton (2005). Bodin (1979) – you cannot be charge with inciting some to be an accomplice.

CONSPIRACY

Conspiracy is an agreement with one or more person to commit an offence. There cannot be conspiracy unless there is a concluded agreement, at which time the offence is complete, whether the parties thereafter seek to put the agreement into effect is inconsequential. There must be agreement between two or more person and you cannot conspire with your wife, a child or the victim. Husband and wife could however conspire with a third part. Chrastny (1991) once D1 is aware of the existence of the third party there is liability. Hollinshead (1983) Court of Appeal decided that conspiracy must be for the commission of an offence and not to aid or abet the commission. In essence one of the parties to the conspiracy must be a principal to the commission of the offence.

Impossibility does not preclude liability for statutory conspiracy s.1(1) b of CLA sub-clause B was added by s.5 of Criminal Attempt Act 1981 to overrule the decision of the House of Lords in Nock (1978).

Mens rea: D must know the existence of the other party and the circumstances of the actus reus of the substantive offence. Anderson (1986) It is not important that a party to agreement and intended that the offence was committed.

Yop-Chiu Cheng (1994) – PC crime of conspiracy requires an agreement between two or more person with intention to carry it out. Lord Grifith state that it is the intention to carry out the crime that constitute the necessary mens rea for the offence of conspiracy. Lord Bridge and active participation. Lord O, Connor LJ in Siracusa explain that what Lord Bridge mean either active or passive participation. Conditional intention is a criminal conspiracy – I will carry out the crime if the condition is conducive.

ATTEMPT

Attempt: s.1(1) of Criminal Attempts Act 1981.

Actus reus: Doing an act which is more than preparatory to the commission of the substantive offence. s.4(3). It is a question for the jury, whether an occurrence is an attempt or not. Only if the Judge is satisfied that there is evidence upon which a jury could properly conclude that D perform an act which was more than merely preparatory to the commission of the offence allegedly attempted should he rule that there is a case to answer.

In complete attempt D has done everything but failed to achieve his object. However, there is a problem with incomplete attempt. Gullefer (1996) Jumped into a dog track to get £18, not attempt. Campbell (1991) Caught in from of post office with harmer, a number of act remain undone and conviction quashed.

Mens rea: D acted with intent to commit crime. Intention to do GBH will suffice for murder and only an intention kill will suffice for attempted murder. O’Toole – recklessness would suffice for the offence, prove that D intended to cause damage for attempted offence. For circumstantial offences if element of recklessness will suffice for full offence it will also suffice for attempt.

The question is if D has achieved what he intended, he would have been guilty of the full offence. If the answer is yes, he is guilty of an attempt to commit the offence.

An impossible attempt is nonetheless an attempt (Shivpuri [1997]). Taafe (1984): Importing cannabis, while thinking it was currency was not an offence since importing current was not an offence.

IMPOSSIBILITY AND INCOHATE OFFENCES

INCITEMENT AND IMPOSSIBILITY – This is governed by Common law and impossibility will provide a defence unless it results from the inadequacy of means.

IMPOSSIBILITY, CONSPIRACY AND ATTEMPT: The fact that the objective of the conspiracy or attempt is impossible of performance does not preclude liability for statutory conspiracy.


THE FRAMEWORK OF SECONDARY LIABILITY

S.8 of the Accessories and Abettors Act 1861 provides …… and Potter LJ in Bryce stated: Persons who come within the statutory genus are variously depicted as accomplices, accessories or secondary parties. It seem that in respect at least, the term ‘secondary parties’ is preferable because it emphasise that the secondary liability of an accomplice is derivative from the liability of the principal offender.

MODELS OF PARTICIPATION - AID, ABET, COUNSEL AND PROCURE

The act provides for aid, abet, counsel and procure Attorney General’s Reference (No. 1 of 1975) (1975). Lord Widgery said the words should be give their ordinary meaning. The former technical distinctions are now redundant (Howe [1987]) and there are in effect the following three modes of participation due to overlap of the terms:

 Encouraging the principal to commit the offence
 Assisting the principal to commit the offence
 Procuring the commission of the offence

It is advisable to use the catch-all-phrase aid, abet, counsel and procure.

Actus reus consist of an act (or possibly omission ) which aids, abets, counsel or procure the commission by the perpetrator of the principal offence.

AID – type of assistance given prior to the commission of the offence. It is mo necessary that the principal must be aware. Bryne (2004) On the instruction a major drug dealer D2 assisted D1, a hit killer, to killer a rival dealer. D2 appealed on conviction that 12 hours difference between his involvement and commission of the crime was too remote. Court of Appeal rule that delay in the commission of crime does not negate liability.

of the of Criminal Law Act 1977 – conspiracy to defraud and conspiracy to corrupt public officials


ABET OR COUNSEL – Inciting and encouraging the commission of an offence. Calheem (1983) – D2 who hire D1 to kill V who was having an affair with D2’s solicitor. Court ruled that there was no requirement that the encouragement was sine qua non of the offence. Giannetto (1997): The fact that the principal had already decided to commit the offence would not relieve an alleged accomplice liability. Any encouragement suffice.

PROCURE

In Attorney General’s Reference (No. 1 of 1975) – to procure is to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that thing. D2 lace D1 drink with alcohol. When D1 drove home he committed a strict liability offence of driving with an excess alcohol in his blood. It was held that D had procured the offence. There is no requirement that the parties have communicated. It may also apply to crime requiring mens rea, where D1 had been acquitted for lack of mens rea, incapacity or availability of defence. Cogan and Leak (1975) Court of Appeal held that a man could be convicted as an accomplice for rape even though the perpetrator was acquitted for lack of mens rea.

MENS REA:

 The act of assistance, encouragement or procuring was done intentionally. In Clarkson (1971) mere presence at the scene of crime – even deliberate presence – is not enough to give rise to secondary liability. Neither was non-interference to prevent a crime.
 At the time of act of assistance or encouragement or procuring D2 contemplated or foresaw the commission of the offence by D1 (Johnson v Youden [1950]). It is not necessary that he intended the crime to be committed 9NCB V Gamble [1959])
 Foresight as a basis for secondary liability – It is sufficient that at the time of acting D2 foresaw that D1 might commit an offence of the type he actually commit, without having the knowledge of the precise crime intended. Bainbridge (1960). Hyde and others (1991)
 Powell: HL held it is sufficient to found a conviction for murder for a secondary party to have realised that in the course of joint enterprise the perpetrator might kill with intent to do so or with intent to cause GBH
  The level of foresight required – The secondary liability is liable unless the risk was so remote that the jury was of the view that he genuinely dismissed it as altogether negligible – Powell and Daniels; English (1991)
 Foresight of an act of the type committed by D1 – English – killed a policemen with a knife while the intention was to use a wood.
 Whether the act is fundamentally different is a question of fact – this are more a less a question of fact for the jury – O’Flaherty
 D2 is not a party to killing if the acts of D1 are different from those foreseen (Uddin (1998) If the jury conclude that the death of V was cause by the act of DI which are completely different from the type contemplated by the others. Anderson and Morris (1966)
 Where D1 perform an act foreseen by D2 but with a more serious intent. – the Secondary party is liable for the consequence to the extent of his own mens rea. Gilmour (2000)]
 Liability for unforeseen consequences – where D2 is liable for the acts done by D1 his liability extend to unusual or unforeseen consequences – Anderson; Morris (1966)
 The secondary party may be liable for more serious offence than the perpetrator – where D1 suffers from the abnormality of the mind which can provide a defence D2 will suffer the full consequence – Howe (1987)

WITHDRAWAL

A person can escape liability by withdrawal before the offence is commited or has reach a stage of attempt – Grundy (1977). Effective withdrawal depends on the circumstances and a fact for the jury. Communication is necessary. O’Flaherty – it was not necessary that step is taken to prevent the crime

type of assistance given prior to the commission of the offence. It is mo necessary that the principal must be aware. Bryne (2004) On the instruction a major drug dealer D2 assisted D1, a hit killer, to killer a rival dealer. D2 appealed on conviction that 12 hours difference between his involvement and commission of the crime was too remote. Court of Appeal rule that delay in the commission of crime does not negate liability.

of the of Criminal Law Act 1977 – conspiracy to defraud and conspiracy to corrupt public officials