The Concept of Impossibility In Inchoate Offences.

The concept of impossibility in incitement is set out in R v Fitzmaurice (1983) QB 1083 where the defendant in this case had encouraged three men to commit robbery by robbing a woman at a bank in Bow. The plan was fictitious, but the defendant was convicted of inciting the three men to commit robbery. He appealed on the grounds that the incited offence was fictitious and therefore impossible to carry out, but the court upheld his conviction.

The second inchoate offence is conspiracy. This offence is largely governed by statute, with the exception of the two common law offences; conspiracy to corrupt public morals and outrage public decency, and conspiracy to defraud.

‘Corrupt public morals’ suggests conduct which a jury might find to be destructive of the very fabric of society, as illustrated in Shaw v DPP (1962) AC 220, here the House of Lords upheld the convictions of the defendants in question. The defendants had published a ‘Ladies Directory’ containing the contact details of prostitutes and were convicted of conspiracy to corrupt public morals.

The offence of  conspiracy to outrage public decency was demonstrated in Knuller v DPP (1973) AC 435.  The defendants in this case had published a magazine with advertisements for homosexual contacts. They were convicted of conspiracy to corrupt public morals, and on appeal the House of Lords once again upheld their conviction.

The case of Scott v MPC (1975) AC 819, sets out the other common law offence of conspiracy defraud. In this instance the defendants were convicted of conspiracy to defraud by agreeing to borrow copy and distribute films in breach of copyright. On appeal the House of Lords upheld their convictions. Viscount Dilhorne stated:

“An agreement by two or more by dishonesty to deprive a person of something which is his or to which he is… suffices to constitute the offence of conspiracy to defraud.”

Statutory conspiracy is governed by the Criminal Law Act 1977; it is defined in section 1(1) (as amended by the Criminal Attempts Act 1981):

“If a person agrees with any other person(s) that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either:

1. will necessarily amount to or involve the commission of any offence(s) by one or more of the parties…or
2. would do so but for the existence of facts which render the commission of…any…offence(s) impossible,

 he is guilty of conspiracy to commit the offence(s) in question.”

The actus reus of conspiracy looks at the agreement between the conspirators. The parties must have agreed to a course of conduct to reach the conspired unlawful act. In Walker (1962) CLR 458, the defendant had discussed with others a proposal to carry out a robbery, but his conviction of conspiracy to rob was quashed as it was not proved that the parties had gone beyond the stage of negotiations, and had to arrive at a definite decision to carry out the unlawful act.

Proof of an agreement may be much more difficult to obtain. A very frequent way of proving it is by showing that the parties had a common goal, and that their actions were co-ordinated by arrangement beforehand. 

It must also be proved that there were two or more parties involved in the conspiracy. Under section 2(2) of the Criminal Law Act 1977 two people may not be enough to conspire, these include spouses.

The mens rea of conspiracy is obvious from the section 1(1) of the Criminal Law Act 1977, it assumes that the parties involved in the conspiracy have all intended to commit the crime. This was found to be the case in R v Anderson (1986) AC 27. Here the defendant had agreed to participate in the planned escape of a prisoner by supplying wire cutting equipment, but claimed to intend to take no further part in the scheme. He appealed on the basis of lack of mens rea but the House of Lords dismissed his appeal, stating that he had aided and abetted that conspiracy.

Impossibility in statutory conspiracy is dealt with under section 1(1)(b) of the Criminal Law Act 1977, which states that:

“ a person shall be guilty of conspiracy to commit  the offence or offences in question but the existence of facts which render commission of the offence or any of the offences impossible”

This section provides for scenarios such as one in which two people agree to kill another by shooting him, unknown to them, he is already dead, thus, making their plan impossible. According to the section in the Act, the two conspirators are guilty of conspiracy to murder. In addition to this, one can also be liable even though the means used are inadequate, or impossibility due to absence of a quality on the part of a person or subject matter.

In common law conspiracy, the concept of impossibility is set out in the previous case of Haughton v Smith (1975) AC 476.

Impossibility is capable of being a defence in common law conspiracy; this is shown in DPP v Nock (1978) AC 979. In this case the defendant was convicted of conspiracy to produce cocaine, but the powder in his possession, unknown to him, could not produce cocaine. The House of Lords allowed the appeal, stating that since the agreement was limited to engaging in a specific course of conduct from which it was impossible to commit the full offence, the defendant was not guilty.

The last inchoate offence to look at is attempts. This offence is governed by the Criminal Attempts Act 1981 section 1 (1), which states:

“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.”

The actus reus of attempt is the doing of ‘an act which is more than merely preparatory to the commission of the offence’ the accused intends to commit. 

In R v Tosti (1997) CLR 746, the defendants were found guilty of attempted burglary. They were caught examining the lock of a barn, seeing the best way to open it, and nearby the police found cutting tools and a car. Here, the court decided the defendants had done more than preparatory acts, and therefore guilty of attempted burglary.

The mens rea of attempt is intention. It is the intent with which an act is done which will determine whether that act is innocent or may amount to an attempt, for example, X shoots a arrow…this is innocent enough if he is aiming at a target circle, however, it could easily be an attempt to kill, if he was aiming at a person with the intent to kill.

In R v Pearman (1984) CLR 675, the defendant was charged with attempting to cause grievous bodily harm. He had driven his car at a police officer. He stated that he did not intend to harm the police officer and did not foresee that his actions could cause serious injury to anybody. The Court of Appeal held that ‘intent’ in this case was the same as in section 1(1) of the Criminal Attempts Act 1981.

The concept of impossibility in attempts is clearly stated in section 1(2) of the Criminal Attempts Act 1981, where it states that:

  “a person may be guilty of attempting to commit an offence…even though the facts are such that the commission of the offence is impossible.’

And also under section 1(3) (a & b) where it states:

   “In any case where:-

1. …a persons intention would not be regarded as having amounted to an intent to commit an offence but,
2. if the facts of the case as he believed them to be, his intention would be so regarded, then…he should be regarded as having an intent to commit that offence.

This is illustrated in R v Shivpuri (1986) 2 All ER 334, where the defendant was convicted of attempting to import a controlled drug, even though the substance was not a controlled drug. His belief that the substance was a controlled drug, coupled with the acts which were more than merely preparatory to its import, was sufficient to make him guilty of an attempt to import controlled drugs. 

The concept of impossibility, as demonstrated occurs in all three inchoate offences. Persons may agree upon a course of conduct, which they believe to be criminal, but which, for reasons of which they are unaware, turns out to be lawful. For incitement the concept of impossibility is set out in R v Fitzmaurice (1983) QB 1083, in attempts it is set out in the above case of Shivpuri, and for conspiracy it is laid down in Haughton v Smith. It is only under common law conspiracy that it is a defence, as shown in DPP v Nock (1978) AC 979.

Apart from this, it is an offence under the rest of the inchoate offences. It would seem that the mens rea of the defendant is the main aspect of liability under the concept of impossibility. An act would seem innocent enough if not form the ulterior motive or intention. However, this does not mean that the act is not considered, under section 1(1) of the Criminal Attempts Act 1981; ‘an act which is more than merely preparatory’ can result in a conviction.

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