Introduction:
Incohate means ‘just begun, incipient, in an initial or early stage’ (Smith and Hogan)
Incohate offences can be prosecuted before the full offence has been committed
Penalising incohate ofences is not the same as penalising evil thoughts
We will be dealing with 3 incohate offences
Attempts
Offences under the Serious Crimes Act 2007
Conspiracy
Attempts:
Criminal Attempts Act 1981 Section 1(1)
‘If, with intent to commit an offence to which this section applies, 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’
Section 1(4) confines liability to attempts to commit indictable offences
There is no crime of attempt, it is attempts liability in relation to another offence
Example 1:
A intends to kill B. A points a gun at B and shoots but misses
This is a complete attempt
Example 2:
A intends to kill B. She pours petrol through B’s letterbox and lights a match,
intending to set fire to the house. However she sees a police car further down
the road and so does not light the petrol
This is not a complete attempt as they have not done everything they could
have
Why Prosecute an Attempt:
No harm may result, is this important?
Practical concerns
D is morally blameworthy
Ashworth comments
Law is also about preventing crime
‘A person who tried to cause a prohibited harm and fails is, in terms of moral
culpability, not materially different from the person who tries and suceeds: the
difference in the outcome is determined by chance rather than by choice and
a censuring institution such as the criminal law should not subordinate itself to
the vagaries of fortune by focussing on results rather than on culpability.’
AR -
‘Does an act which is more than merely preparatory to the commission of the offence’ -
A - ‘Does an act’
This excudes omissions to act
D must do more than hatch an evil plan
, B - ‘More than merely preparatory’
This is a question of fact for the jury (Criminal Attempts Act 1981, S4(3)
The question remains, and it is one that has troubled the courts, how far must D go
towards the commission of the offence before they are liable?
Should we focus on what D intended (a fault centred or subjective approach)
Should we focus on what D did (an act centred or objective approach)
Gullefer (1990) 91 Cr App R 356 was a case where G realised that he would lose
money on the greyhound race bet he made so he attempted to distract the dogs in
the hope that the race would be declared a ‘no race’. The CA in this case considered
the approach to be taken: the last act test or the series of acts approach.
Court has to answer whether his act was more than merely preparatory
B - The ‘Last Act’ Test:
Eagleton (1955) Dears CC 515
Only acts immediately connected with the offence
It is not simply a random act, but an act that takes steps towards the
commission of the offence
Stonehouse [1978] AC 55
Must have ‘crossed the rubicon and burnt all the bridges’
Crossed a point of no return
B - The ‘Series of Acts’ Approach:
Stephen's Digest of the Criminal Law, 5th Ed (1894), art. 50
An attempt to commit a crime is an act done with intent to commit that crime,
and forming part of a series of acts which would constitute its actual
commission if it were not interrupted
B - Back to the Gullefer Case:
The CoA decided to ‘steer a midway course’ between the rather narrow ‘last act’ test
and the unduly broad and vague ‘series of acts’ test
‘It seems to us that the words of the Act of 1981 seek to steer a midway course. They
do not provide, as they might have done, that the Reg v Eagleton test is to be
followed, or that...the defendant must have reached a point from which it was
impossible for him to retreat before the AR of an attempt is proved. On the other
hand the words give perhaps as clear a guidance as is possible in the circumstances
on the point of time at which Stephens series of acts begin. It begins when the
merely preparatory acts come to an end and the defendant embarks upon the crime
proper. When that is will depend of course upon the facts in any particular case.’
He was convicted at first instance and appealed in the CoA
It was said that it depends on the facts of the case
B - Jones (1990) 91 Cr App R 351:
Incohate means ‘just begun, incipient, in an initial or early stage’ (Smith and Hogan)
Incohate offences can be prosecuted before the full offence has been committed
Penalising incohate ofences is not the same as penalising evil thoughts
We will be dealing with 3 incohate offences
Attempts
Offences under the Serious Crimes Act 2007
Conspiracy
Attempts:
Criminal Attempts Act 1981 Section 1(1)
‘If, with intent to commit an offence to which this section applies, 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’
Section 1(4) confines liability to attempts to commit indictable offences
There is no crime of attempt, it is attempts liability in relation to another offence
Example 1:
A intends to kill B. A points a gun at B and shoots but misses
This is a complete attempt
Example 2:
A intends to kill B. She pours petrol through B’s letterbox and lights a match,
intending to set fire to the house. However she sees a police car further down
the road and so does not light the petrol
This is not a complete attempt as they have not done everything they could
have
Why Prosecute an Attempt:
No harm may result, is this important?
Practical concerns
D is morally blameworthy
Ashworth comments
Law is also about preventing crime
‘A person who tried to cause a prohibited harm and fails is, in terms of moral
culpability, not materially different from the person who tries and suceeds: the
difference in the outcome is determined by chance rather than by choice and
a censuring institution such as the criminal law should not subordinate itself to
the vagaries of fortune by focussing on results rather than on culpability.’
AR -
‘Does an act which is more than merely preparatory to the commission of the offence’ -
A - ‘Does an act’
This excudes omissions to act
D must do more than hatch an evil plan
, B - ‘More than merely preparatory’
This is a question of fact for the jury (Criminal Attempts Act 1981, S4(3)
The question remains, and it is one that has troubled the courts, how far must D go
towards the commission of the offence before they are liable?
Should we focus on what D intended (a fault centred or subjective approach)
Should we focus on what D did (an act centred or objective approach)
Gullefer (1990) 91 Cr App R 356 was a case where G realised that he would lose
money on the greyhound race bet he made so he attempted to distract the dogs in
the hope that the race would be declared a ‘no race’. The CA in this case considered
the approach to be taken: the last act test or the series of acts approach.
Court has to answer whether his act was more than merely preparatory
B - The ‘Last Act’ Test:
Eagleton (1955) Dears CC 515
Only acts immediately connected with the offence
It is not simply a random act, but an act that takes steps towards the
commission of the offence
Stonehouse [1978] AC 55
Must have ‘crossed the rubicon and burnt all the bridges’
Crossed a point of no return
B - The ‘Series of Acts’ Approach:
Stephen's Digest of the Criminal Law, 5th Ed (1894), art. 50
An attempt to commit a crime is an act done with intent to commit that crime,
and forming part of a series of acts which would constitute its actual
commission if it were not interrupted
B - Back to the Gullefer Case:
The CoA decided to ‘steer a midway course’ between the rather narrow ‘last act’ test
and the unduly broad and vague ‘series of acts’ test
‘It seems to us that the words of the Act of 1981 seek to steer a midway course. They
do not provide, as they might have done, that the Reg v Eagleton test is to be
followed, or that...the defendant must have reached a point from which it was
impossible for him to retreat before the AR of an attempt is proved. On the other
hand the words give perhaps as clear a guidance as is possible in the circumstances
on the point of time at which Stephens series of acts begin. It begins when the
merely preparatory acts come to an end and the defendant embarks upon the crime
proper. When that is will depend of course upon the facts in any particular case.’
He was convicted at first instance and appealed in the CoA
It was said that it depends on the facts of the case
B - Jones (1990) 91 Cr App R 351:
