Criminal Law

727M3
Inchoate and
Accessory Liability
Mr James Greenwood-Reeves
CW: violence, theft, fire, kidnapping, rape, bestiality
 To demonstrate knowledge and
understanding of criminal
attempts;
To demonstrate knowledge and
Aims understanding of the rules of
complicity;
To engage in a critical discussion as
to the current approach of the law.
Session outline

• What are inchoate offences

• Conspiracy
• Encouraging or assisting
• ATTEMPT
• Accessory liability
Question:
Should we punish someone where no
substantial crime has been
committed?
Inchoate offences -
rationale
• Objectivist: harm, threat to security
(H. Gross, A Theory of Criminal Justice
(New York: OUP, 1979), p.125)
• Subjectivist: Ashworth, moral luck
(J. Horder, Ashworth’s Principles of
Criminal Law, 9th edn (Oxford: OUP, 2019),
p.493–494)
• Pragmatic: prevent and prosecute criminal
behaviour
• …But no actual harm to victim?
H.L.A. Hart, Punishment and Responsibility
(Essays in the Philosophy of Law) (1968),
p.131
Conspiracy -
statutory
• S.1 Criminal Law Act 1977: agree
with another person to commit
an offence with intention – even
if the offence is factually
impossible.
• AR: agreement (needs
communication, Scott (1979); not
all details, just common purpose
Fritzl (2011)
Conspiracy:
MR
• MR: i) intention for offence to
occur (Siracusa, GBH not intent
to murder; intention to import
weed no intention to import
heroin),
ii) intend / believe in
circumstances: Saik (2007)
• Includes conditional outcomes:
Jackson (1985), shoot in leg if
found guilty
Encourage or assist

• Serious Crime Act 2007:

• S.44 – with intent
• S.45 – with belief it will be committed
• S.46 – believing one or more offences will be
committed
Sadique (2) (2013), doesn’t matter which type
of drug offence assisted

E/A not defined. Includes acts “capable” of E/A,

without the principal’s knowledge or
agreement, and for inchoate offences.
Attempt
• s 1(4) Criminal Attempts Act 1981 only
applies to indictable offences (and ‘low
value shop-lifting’)
• The act specifically excludes the
following:-
• attempting to conspire
• attempting to aid abet counsel or
procure
• attempting to assist an offender after
the commission of a crime
So no ‘double inchoate’ liability for attempt
s.4 – sentencing, same penalty as
substantive offence
Question:

• Mr Pilfer plans to break into Pascha’s

house and take any valuables he can
find. Pilfer gathers the necessary
equipment to break in and goes to the
house. As Pilfer is inspecting the
window and working out the best way
to get inside, he has a change of heart
and decides not to go through with it.
Should Pilfer be criminally punished?
Attempt: AR

• S1(1): act that is “more than

merely preparatory”
• S4(3): question of fact for jury

• R v Gullefer [1990] 1 WLR 1063

• R v Campbell [1991] 93 Cr App R
350
• R v Geddes [1996] Crim. LR 894
• R. v Griffin [1993] Crim. L.R. 515.
• R v Tosti [1997] Crim. LR 746
Attempts: AR

• Impossible crimes
• CAA 1981, s 1(2): “A person may be guilty of attempting
to commit an offence to which this section applies even
though the facts are such that the commission of the
offence is impossible.”
• Distinction between legal and factual impossibility
• R v Shivpuri [1985] - G when snuff not drugs
• R v Jones [2007] EWCA Crim 118 – G when sexting police
not teenager

• No backing out: Haughton v Smith [1975] AC 476

Attempts: MR
• Intention as to result: R v
Whybrow (1951) 35 Cr. App. R.
141, kill for murder, GBH not
enough
• Conditional intention: AG Ref 1+2
1979, G of attempted theft even
if unaware of whether anything
worth stealing
Attempts: MR as to
circumstances
For possible attempts:
R v Khan [1990] 1 WLR 813 (attempted
rape), all other MR requirements except for
result are the same as for the substantive
offence

But see the mess of impossible attempts:

R v Pace and Rogers [2014] EWCA 186, need
intention to act, circumstances and result
Question: when should D be
guilty?
• D forms the intention to murder V by setting light to his
house.
• D writes it down in a diary and boasts to a friend about it.
• D goes to V’s property to conduct surveillance on V
• D goes to buy petrol
• D takes the petrol to V’s house
• D walks up V’s drive
• D takes the lid of the petrol
• D pours the petrol into the letter box
• D strikes a match
• D puts the match through the letter box
• D drops the match
• D flees the scene
Attempts: summary
• Actus Reus:
• D goes beyond mere preparation for the AR of the principal offence (based on the facts as D
believes them to be).

• Mens Rea:
• Where the attempt is possible:
• Intending to complete the acts and results required by that offence (no matter what the
principal offence’s MR is).
• With the same mens rea for the circumstance element as is required for the principal
offence (minimum of recklessness).
• Where the attempt is impossible:
• Intent or knowledge for all elements of the full offence
 Accessory liability
• Principal (P) must commit an offence (unlike
encourage / assisting above)
• D is an accomplice
• Accessories and Abettors Act 1861 s. 8:

‘Whosoever shall aid, abet, counsel, or procure the

commission of any indictable offence, whether the same
be an offence at common law or by virtue of any Act
passed or to be passed, shall be liable to be tried,
indicted, and punished as a principal offender’.

• For summary only offence see s.44 of the Magistrates’

Courts Act 1980.
AR: Aiding, abetting
or counselling
• Used interchangeably, question of fact for
jury: Calhaem (1985) (asked P to kill
solicitor’s love interest…)
• Stringer [2011] EWCA Crim 1396: D’s
conduct must have some relevance to the
commission of the principal offence
• Bryce [2004] EWCA Crim 1231 impact
need not be substantial
• Gianetto (1997) D’s act must be capable of
encouraging and communicated to P
AR: Aiding, abetting or
counselling
• Can mere presence at the scene of the
crime satisfy the actus reus of
complicity? Clarkson [1971] 3 All ER 344:

• Can the actus reus be committed

through an omission? Du Cros v
Lambourne [1907] 1 KB 40
AR: Procuring

• D did not encourage or assist P, but D

played a causal role in the commission
of the principal offence (see AG’s
Reference (No.1 of 1975) [1975] 2 All ER
684)
• C.f. Blakely and Sutton (1991), intended
to warn P to not drive, so lacked
intention, NG.
MR of complicity

1. D’s MR as to his own conduct

• Voluntary conduct
• Intention to assist or encourage (or to
cause for procuring)

2. D’s mens rea as to P’s offence

• D must know the essential elements
(Johnson v Youden [1950] 1 KB 544)
• D must intend P to commit the
principal offence (Jogee [2016] UKSC
8)
Racialisation of complicity: “gangs”
• ‘The ‘gangs’ discourse was significantly more likely to be cited in the prosecution
of BAME JE defendants.’ Williams and Clarke, ‘Dangerous associations: Joint
enterprise, gangs and racism’ (Centre for Crime and Justice Studies 2016).
• Use of dehumanizing language such as ‘pack of animals’ to groups of
‘BAME’ defendants. Theodora Okocha, ‘Joint Enterprise and Race’ [2018]
Q.M.L.J, 121-140
• Joint Enterprise Not Guilty By Association (JENGBA), ‘ Black people are serving
time under joint enterprise at 11 times their presence in the population as a
whole.’
• White people appear to be committing the majority of serious youth violence.
(Williams and Clarke, 2016).
• R v Sode [2017] EWCA Crim 705 – drill music used as evidence!
Problems with
complicity
• No P: Bourne (1952) dog; Cogan and Leak
(1976) believe wife consented
• D harsher than P: Howe (1987), told P had
blanks, so murder where P gets
manslaughter
• Withdrawal: Becerra and Cooper (1975),
communicate “countermand”
• V as accessory to the crime? Tyrell; but
Gnango (2011) and Brown (1993)
• Transferred malice: Saunders and Archer
(1573)
• Duress and murder: Howe (1987)
 Question:
how could
we improve
complicity?
Complicity: summary
• D will be liable as an accomplice to P’s crime if:
• P commits the AR of the offence,
• P has the necessary MR,
• D intentionally provides assistance or encouragement OR procures
P’s offence,
• D intends P to complete all AR elements of the principal offence,
AND
• D intends P to act with the required MR of the principal offence
Next time:
Defences
• Tuesday 26th April
• Lots of reading
• Formative assessment
• Feedback survey