Inchoate offences

Inchoate meaning “not yet completed or undeveloped.” inchoate offences refer to crimes which have not yet been completed.

OCR Criminal Law for A2 fourth edition

Inchoate offences are concerned with the planning processes of a criminal offence which may not ever come to fruition but there is sufficient conduct that is blameworthy and needs to be addressed under the criminal law. The main offence has not yet been committed and may not be committed at all.

There is a range of conduct which amounts to inchoate offences and these are covered by attempting to commit, conspiring and encouraging and assisting the commission of a criminal offence. Incitement was another inchoate offence but was abolished on 1 October 2008, except in relation to offences committed wholly or partly before that date .

 

Attempt.

A criminal attempt is defined by s1 (1) Criminal Attempts Act 1981 as: 'If, with intent to commit an offence....., 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.'

 

Prior to 1981 common law cases had evolved a number of tests to decide if the actions of the defendant did amount to attempt. For example, the last act test and the proximity test would have been used, nowadays these tests are classed as irrelevant.

 

The purpose of the 1981 Act was to replace the common law tests and previous decisions with a statutory definition of the offence which laid down a test in order to help all concerned with a common sense and practical approach. This also reflects the idea that members of the jury will probably know when somebody has been up to no good.The first issue is to determine what amounts to an attempt or to identify the actus reus of attempt. We are now helped by Section 1 (1) of the 1981 Act, which says that an attempt is an act which is more than merely preparatory to the commission of the offence. The Act does not go further and does not provide a definition as to what 'more than merely preparatory' means. So we need to look at how the courts have approached this question in practice.

 

In Gullefer (1990), the defendant had placed a bet on a dog which was clearly losing. Gullefer jumped over a fence and onto the race track to try to cause confusion as part of a plan to have the race declared void. The trial judge ruled that more than merely preparatory means the defendant must have gone beyond purely preparatory acts and 'embarked on the crime proper.' He (Gullefer) was found not guilty of attempted theft as he was able to argue that amongst other things he had not gone back to the tote office with his betting slip to demand his money back.

 

In Geddes (1996), the position is less clear. Geddes had been found in a boys' lavatory block of a school. Geddes did not have permission to be on the school premises. When seen he ran away and discarded a rucksack he had in his possession. The rucksack contained a large kitchen knife, rope and masking tape. Geddes was arrested and charged with attempted false imprisonment. Geddes was convicted of attempted false imprisonment but had his conviction quashed on appeal.

 

In the case of Campbell (1991) the defendant was found not guilty of attempted robbery. Campbell had been arrested and charged with attempted robbery. He had been spotted in the street outside a post office with an imitation gun, wearing a motor cycle helmet and with a threatening letter in his pocket presumably ready to hand to the cashier. He was arrested before going into the post office and it was held that he had not 'embarked on the crime proper', and his acts were "merely preparatory".

 

Conspiracy.

One of the problems of the old common law definition of conspiracy was that it was very wide and could include situations dealing with civil matters such as tort. In Kamara v DPP (1974) the defendants agreed to commit the tort of trespass to the land of another. In this case there was a conviction for conspiracy to trespass where the trespass in question was not a criminal trespass.  Notwithstanding that the tort of trespass is a civil matter the defendants were convicted of the criminal offence of conspiracy.

Inchoate offences are specific offences, but they can only be charged in the context of another substantive or main offence. The result being that a person is not charged with 'attempt', 'conspiracy' or 'encouragement' but the person is charged for example with attempted murder or conspiracy to rob.

 

A conspiracy is an agreement between two or more persons to commit an offence. At one time conspiracy was a common law offence but the Criminal Law Act 1977 changed that and abolished most of the common law offences of conspiracy and replaced them with a new statutory offence of conspiracy. Three types of common law conspiracy still exist, namely:

  • conspiracy to defraud
  • conspiracy to corrupt public morals

  • conspiracy to outrage public decency.

Statutory conspiracy is now defined in Section 1 Criminal Law Act 1977 (as amended by Section 5 of the Criminal Attempts Act 1981) as:

'…..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.'

 

Assisting and Encouraging.

The common law offence of incitement was abolished under the Serious Crime Act 2007 and was really concerned with the principle of encouragement given for the commission of the substantive or main offence. Incitement was abolished on 1 October 2008, except in relation to offences committed wholly or partly before that date.

Following the Law Commission's report Inchoate Liability for Assisting and Encouraging Crime (2006)  recommendations were made which included the introduction of two new offences of assisting and encouragement (Sections 44, 45 and 46 of the Serious Crime Act 2007).

 

Inchoate offences: Legal Guidance: The Crown Prosecution Service

Use of the common law offence of conspiracy to defraud ... - Gov.uk

BBC News - Call to change 'criminal conspiracy' law

Serious Crime Act 2007 - Legislation.gov.uk

BBC News - Man jailed for Facebook incitement to riot to appeal

 

 

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