Inchoate Crimes: Attempt and Conspiracy

Introducing the Inchoates

• The inchoate crime is the crime of attempt or conspiracy
• The perpetrator of the inchoate crime will be referred to as D
• The completed crime is the crime being attempted or conspired towards
• Where the completed crime will be committed by someone other than D, the perpetrator will be referred to as P
• Attempted murder involves an inchoate crime by D and a completed crime by D
• Conspiracy to commit murder involves an inchoate crime by D and P and a completed crime by P

Two Inchoate Offences

• Attempt (Criminal Attempts Act 1981, s 1) is an inchoate offence
• Conspiracy (Criminal Law Act 1977, s 1) is an inchoate offence
• If, with intent to commit an indictable 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

Issues to Bear in Mind

• It is important to consider at what stage the criminal justice authorities should be able to intervene
• The further away from the commission of a completed offence, the more difficult it is to justify criminalising as a proportionate response--called the ‘Proportionality Principle'
• The Proportionality Principle forbids the state from going beyond what is necessary and appropriate to achieve a certain legitimate objective
• There must be careful balancing of competing values
• It is important to consider which forms of mens rea are acceptable for use in the inchoate offences
• The more remote an offence becomes from the actual infliction of harm, the higher the degree of fault necessary to justify criminalization

Conspiracy: General points

• Varieties of common law and statutory conspiracy exist but are not on the syllabus

Conspiracy’s Requirements: Overview

• To prove conspiracy, these requirements must be met:
  • Two or more persons must reach an agreement
• The agreement must be to pursue a course of conduct that will, if carried out in accordance with the parties' intentions, necessarily involve the commission of an offence
• The parties must intend that any conduct and consequence elements of the planned offence be brought about
• The parties must intend or know that any circumstance elements required for the planned offence will be present at the time the relevant conduct and/or consequences occur
• The parties must intend to ‘play their part' in carrying out the agreement

Requirement: Two or more persons must reach an agreement

• Conspiracy requires that the parties to it have a common unlawful purpose or design
• A common design means a shared design, which is not the same as similar but separate designs
• There may be an umbrella agreement pursuant to which the parties enter into further agreements which may include parties who are not parties to the umbrella agreement

What constitutes the ‘course of conduct’ that must be agreed to

• DD agreed to produce cocaine by applying a chemical process to substance X (which was a mixture, they thought, containing cocaine)
• Substance X contained no cocaine whatsoever in Nock [1978] AC 979 ([1978] Crim LR 483)
• The case of Bolton (1992) 94 Cr App R 74 ([1992] Crim LR 57) provides that DD agreed to enter into a deceptive scheme that would result in their securing a valuable security. There was no way for the scheme to result in the obtaining of a valuable security

Conditional Agreements

• DD agreed to carry out an IRA bombing campaign if a ceasefire ended--*O'Hadhmaill [1996] Crim LR 509

Requirement: The parties must intend that any conduct and consequence elements of the planned offence be brought about

• The mental element of conspiracy, apart from the mental element involved in making an agreement, comprises the intention to pursue a course of conduct which will necessarily involve commission of the crime in question by one or more of the conspirators
• The conspirators must intend to do the act prohibited by the substantive offence--*Saik **[2006] UKHL 18 ([2006] Crim LR 998)

Requirement: The parties must intend or know that any circumstance elements required for the planned offence will be present at the time the relevant conduct and/or consequences occur

• Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place - *Criminal Law Act 1977, 1

Requirement: The parties must intend to ‘play their part' in carrying out the agreement

• It is necessary that any party to the agreement shall have assented to play his part in the agreed course of conduct, however innocent in itself, knowing that the part to be played by one or more of the others will amount to or involve the commission of an offence--*Anderson [1986] AC 27 ([1985] Crim LR 651)
• This requirement has become one of not having the intention to frustrate the plan before its completion

Further Issues with Conspiracy

• If the person on the other side of the agreement is acquitted. Can D1 be convicted of conspiracy if D2 is acquitted?
• If the only evidence on a joint trial is evidence which is admissible against both and equally of force against both, then clearly both could be convicted or both acquitted but no other result could be valid--*DPP v Shannon [1975] AC 717 ([1975] Crim LR 703)

Serious Crime Act 2007: Defence of acting reasonably

• A person is not guilty of an offence under this Part if he proves that he knew certain circumstances existed and that it was reasonable for him to act as he did in those circumstances
• A person is not guilty of an offence under this Part if he proves that he believed certain circumstances to exist, that his belief was reasonable, and that it was reasonable for him to act as he did in the circumstances as he believed them to be

Attempting the Impossible

• You cannot attempt the (legally) impossible, but you can attempt the (factually) impossible
• Taaffe [1984] AC 539 Facts: D thought that importing a large amount of money was unlawful, but it was not
• *Anderton v Ryan [1985] AC 560 ([1985] Crim LR 503) Facts: D admitted to the police that she thought she had bought a stolen video recorder. It could not be proved that the video recorder was, in fact, stolen
• *Shivpuri [1987] AC 1 ([1986] Crim LR 536) Facts: D was paid money to receive delivery of a briefcase and take it to a third party. D thought that the briefcase contained heroin. In fact, it contained a material similar to snuff
• It is factual impossiblity not a defence - as long as D believes facts to be incriminating, they still are

Attempts

• If a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized--*Gideon Yaffe, Approaches (2010)
• An attempt begins when the merely preparatory acts come to an end and the defendant embarks upon the crime proper-- *Gullefer [1990] 1 WLR 1063 ([1987] Crim LR 195)
• *MS [2021] EWCA Crim 600 Facts: D, T's mother, wanted to move abroad with T. C, T's father, refused his permission, and a court agreed T should not be moved
• D was stopped 85 miles from Dover, having packed up all of her and T's belongings, bought tickets for a Dover-Calais ferry and onward travel, brought their passports, and forged C's signature on a document purporting to give his consent to T's being taken abroad. D was charged with attempted child abduction

The Mens Rea of Attempts

• D must intend to perform the conduct element of the completed crime
• D must intend that any consequence elements of the completed crime come about

Will conditional Intention suffice?

• Husseyn (1978) 67 Cr App R 131 Facts: D was caught tampering with the back of a van, inside of which was a holdall containing some diving equipment. D was charged with attempted theft of that diving equipment

The Actus Reus: A ‘more than merely preparatory act’ towards commission of a completed offence

• Where, in proceedings against a person for an offence, there is evidence sufficient in law to support a finding that he did an act falling within that subsection, the question whether or not his act fell within that subsection is a question of fact--*Criminal Attempts Act 1981, 4