The Concept of Impossibility In Inchoate Offences.

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The concept of impossibility occurs in all three inchoate offences; incitement, conspiracy and attempts. This concept entails the fact that in some circumstances the planned act which, if carried would result in an unlawful offence, sometimes becomes impossible, and no offence can be committed or is committed. This is well illustrated in Haughton v Smith (1975) AC 476, where the defendant was charged and convicted of attempting to handle stolen goods. Prior to this however, the police had already recovered the stolen goods but proceeded to catch the rest of the people involved, which resulted in the arrest of the defendant. The court held that at the time of the alleged offence the goods, being in the lawful custody of the police, ceased to be stolen goods as stated by section 24(3) of the Theft Act 1968. 

Inchoate offences are used where the full substantive offence does not occur.

Of all the three inchoate offences, incitement has no statutory basis; it is governed by the common law. The actus reus of incitement requires proof that the accused by means of encouragement, persuasion, threats or pressure sought to influence another to commit an offence. 

Generally, incitement occurs between two people, however an incitement can be unilateral as seen in R v Most (1881) 7 QBD 244. Here the defendant had published an article urging readers to follow the example of those in Russia and murder their Heads of State. This was held to be incitement to murder contrary to section 4 of the Offences Against the Person Act 1861. 

In R v Whitehouse (1977) QB 868, the defendant was convicted of inciting his daughter, who was fifteen, to commit incest with him. The act was not carried out but had it been, the defendant would have been guilty of incest. However, the conviction was quashed in accordance to section 11 of the Sexual Offences Act 1956. This would not be the same today, as section 54 of the Criminal Act 1977 makes it an offence for a man to incite a girl under sixteen whom he knows to be his grand-daughter, daughter or sister to have sexual intercourse with him.

The mens rea of incitement requires that the inciter intended that the incitee would commit the offence that was incited. However, if the defendant believes that the person incited will not have the mens rea for the crime in question; he will not be guilty of the incitement. This is demonstrated in R v Curr (1968) 2 QB 944 (CA). The defendant solicited women to obtain family allowance payments on his behalf and was convicted of the equivalent of inciting them to commit the offences under section 9(b) of the Family Allowances Act 1945. The conviction against the defendant was quashed, as no mens rea was found on behalf of the women agents. However in  DPP v Armstrong (2000) CLR 379. The defendant was accused of attempting to incite a police officer to supply him with pornographic pictures. The police officer had access to these pictures but had no intention of supplying them to the defendant. The court held that the defendant could be convicted despite the lack of mens rea of the officer. Unlike Curr, the court in this case ignored the state of mind of the incitee and looked solely at the state of mind of the incitor. This clearly detours from the decision in Curr, which would suggest that at the time, it was a wrong decision.

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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; ...

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