Impossibility & conspiracy
- Even where the act agreed is impossible, a conspiracy charge may still succeed S1 (1)(a) CLA 1977
- Conviction: it is possible for one conspirator to be convicted even if the other is acquitted
- Sentencing: not to exceed max for crime agreed
INCITEMENT (common law)
Actus Reus:
- Encouraging other to do something which is a crime may be spoken, written or by some sign
- Needs real encouragement, not merely suggestion
- D need not incite a particular person – maybe addressed to group or people in general
- R v MOST (1881) – was held that in an article in a revolutionary newspaper encouraging revolutionaries all over the world to assassinate their heads of state, could be an incitement to murder
- INVICTA PLASTICS LTD v CLARE (1976) – D’s manufactured a device called a Radatec which could detect wireless transmissions,, including those used by the police radar traps designed to catch speeding motorists. They advertised the product in a motoring magazine, the advertisement showing a road with a speed limit sign, seen through a car windscreen. The court held that this was an implied incitement to use the device without a license, constituting an offence under the WIRELESS TELEGRAPHY ACT 1949. The fact that the company’s advertisement did point out that o do so would be an offence did not prevent liability being incurred.
- R v GOLDMAN (2001) – D had seen an advertisement in a magazine for the sale of pornographic videos of children. D ordered a video and was convicted of attempting to incite another to distribute indecent photographs of children under the age of 16. His appeal against conviction was rejected. The act incited must be one which would be a crime if it was committed by the specific person incited.
- The Q of liability for inciting the impossible is complicated and depends on whether D is inciting in specific terms (where impossibility is a defence) or in general terms (where it is not)
- MCDONOUGH (1962) – it appeared that a person could be liable for inciting an offence even though it would not have been possible to go on and commit the actual full offence. McDonough had been convicted of inciting another to handle stolen lamb carcasses. He had believed that the meat in question was in cold store, but in fact it did not exist (and therefore could not have been either stolen or handled). COA upheld his conviction
CF
- R v FITZMAURICE (1983) – COA held that a person would not be liable for inciting offences that were impossible to commit, but that if the incitement was in general terms, the fact that the precise plan visualised by the incite was impossible would not necessarily mean that the offence itself was impossible. Fitzmaurice’s father had asked him to recruit people to commit a robbery near a bank in Bow, on a woman whom he said would be carrying a lot of money. He found 1 person, who recruited 2 other and the put, all 3 in touch with his father. Unknown to Fitzmaurice, his father had no intention of bringing about the crime he had discovered, and in fact planned to claim reward money by reporting his son’s activities to the police. Fitzmaurice was convicted of incitement to rob, and COA upheld his conviction because the incitement was in general terms & the offence of robbery was not impossible to carry out – even if the men could not rob the particular woman whom Fitzmaurice’s father appeared to have in mind, the could have robbed someone else coming out of the bank.
Mens Rea: intention that end result of the crime should occur & knowledge of, or wilful blindness to, the circumstances which make act illegal
- DPP v ARMSTRONG (2000) – had asked another man to supply him with pornography involving girls not younger than 12 years. Unknown to him the man he had asked to supply the pornography was a police officer, and D was charged with inciting a person to distribute indecent photographs of children. At first instance the magistrates found that the police officer had no intention of supplying the respondent with child pornography and following R v CURR, concluded that D was not guilty of incitement. On appeal, Divisional Court ruled that for the purposes of the offence of incitement the intention of the person incited was irrelevant.
Sentence: May be greater than max for crime incited, to reflect greater fault & risk to society. A similar provision in conspiracy was reformed.
- If the offence necessary? If there is an agreement to commit a crime, then there is a conspiracy and it is only then that there is any real threat to society. If there is no agreement, then an attempted conspiracy could be charged (although currently this is not allowed under S1 (4) CLA 1977
ATTEMPT
CRIMINAL ATTEMPTS ACT 1981 – Statutory offence
- S1 (1) – offence for a person with intent to commit an offence to do an act more than merely preparatory to the commission of the offence (Actus Reus)
- S1 (4) provides crimes which cannot be attempted: summary, conspiracy, aiding, abetting, counselling or procuring, assisting an offender or concealing an offence – You would be charged with indictable offences or either way offences
Mens Rea: “intention” D must intend to commit the offence – intention has the same meaning as in MOLONEY, NEDRICK i.e. it can be direct or oblique – with direct aim or foresight of it virtually happening
Actus Reus: “more than preparation” doing something more than merely preparatory: a Q of fact in each case
- Prior to 1981 ACT, “proximity” (how near was you to do the substantive act?) and “last act” tests were used (D must have “crossed the Rubicon” & burnt his boats) – once you cross the line there is no return of going back, have they embarked on the crime proper? Completing all the stages?
- now no longer any “magic formula” although common law test still broadly applicable – GULLEFER (1987) – Accused had backed a greyhound & once the race was started, it became clear that the dog would probably lose. Accused thought by disrupting the race, so that it would be declared null & void, he would get his stake money back, so he ran on to the track. COA held that there was no evidence that this act was more than merely preparatory, as the accused had clearly not started on ‘the crime proper’ – the offence consisted not of stopping the race, but of using that disruption to get his money back & he had not yet started to get that money back
- JONES (1990) – Jones was going to commit murder and there were various stages involved and found a shotgun which was sawn off and was an effective weapon and finds out that the intended V was going to be at a certain place at a certain time. He goes to load the gun & leaves the house wearing overalls and a crash helmet and approaches the car and gets into the back of the car and says that he wants to sort it out and says V you are not going to like this and then V escapes out the car. D was convicted, in his defence he said that he had not finished his preparatory as he had his safety catch on and didn’t have finger on the trigger but he was still convicted.
- CAMPBELL (1991) – Accused was arrested by police within a yard of the door of a post office, carrying a threatening note and a fake gun. He admitted that he had originally planned to rob the post office, but said he changed his mind and was going back to his motorbike when he was arrested. His convicted for attempted robbery was quashed because, it was held that here was no evidence on which a jury could safely find that his acts were more than merely preparatory to committing the offence.
- GEDDES (1996) – Accused had entered some school premises including boys’ toilets. On being discovered he ran away discarding a rucksack which was found to contain a rope, masking tape and a large kitchen knife. He was charged with attempted false imprisonment and the trial judge ruled that there was a case fit for the jury’s consideration. Accused was convicted but appeal was allowed. Where there was no doubt about the appellant’s intention, there was no evidence of the Actus Reus of the offence. Evidence showed that he had made preparation, got himself ready & put himself in a position to commit the offence of false imprisonment, but he had not made contact with any pupil. He had not moved from the role of preparation and planning into the area of execution or implementation.
- TOSTI & WHITE CA 1997 – Driving to the scene of the crime, concealing equipment for burglary & examining locks held “essentially the first steps in the commission of the crime”)
- There does not need to be “one last preparatory act” – AG’s REF No 1 of 1992 – and judges should be wary of directing jury too rigidly
Impossibility & attempt
- if offence is impossible a charge of attempt can still succeed – SHIVPURI – if D intended the offence and did more than merely preparatory, he maybe convicted
Sentence: max is same as for the same offence