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You are here: BAILII >> Databases >> The Law Commission >> Inchoate Liability for Assisting and Encouraging Crime (Report) [2006] EWLC 300(3) (04 July 2006) URL: http://www.bailii.org/ew/other/EWLC/2006/300(3).html Cite as: [2006] EWLC 300(3) |
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PART 3
AN OUTLINE OF THE PRESENT LAW OF INCHOATE LIABILITY FOR ENCOURAGING OR ASSISTING CRIME
3.1 In this Part we provide an outline of the common law of inchoate liability for encouraging or assisting the commission of an offence. We begin by focusing on what we consider to be its main defect.INTRODUCTION
3.2 At common law if P commits or attempts to commit an offence, it matters not whether D encouraged, on the one hand, or assisted, on the other, P to commit the offence. D is an accessory to and guilty of the offence (or the attempt to commit it) provided that the encouragement or assistance in fact contributed to the commission of the offence. However, what if D's encouragement or assistance fails to bear fruit? This could be because:A SERIOUS GAP IN THE COMMON LAW
(1) P does not commit or attempt to commit the offence:
Example 3A
D, knowing that P is intending to burgle V's premises, leaves a ladder outside V's house in order to assist P to enter the premises. On learning that V has returned from holiday earlier than expected, P abandons the project.
(2) P does commit or attempt to commit the offence but without reference to the assistance or encouragement that D has provided:
Example 3B
D, knowing that P intends to burgle V's premises, leaves a ladder outside V's house to assist P to enter the premises. P, unaware that D has left the ladder, commits the burglary without using the ladder.
(3) P commits or attempts to commit the offence but without recourse to or reliance on D's assistance or encouragement because D has not provided it by the time P commits or attempts to commit the offence:
Example 3C
D sends a cheque in the post to P who has appealed for funds to enable him to publish and distribute an abusive and insulting pamphlet intended to stir up racial hatred. The cheque does not arrive but P is still able to publish the leaflet.
At common law, D is not criminally liable in any of the three examples despite having done his or her best to assist P to commit an offence.
3.3 In examples 3B and 3C, it might be thought that D, by virtue of trying to assist P, could be convicted of attempting to commit the offence that P has committed.[1] However, it is not an offence to attempt to aid, abet, counsel, procure or suborn the commission of an offence.[2] That leaves the possibility of D being inchoately liable for assisting P to commit an offence. However, the common law does not recognise inchoate liability for assisting the commission of an offence if the offence is not subsequently committed or is committed without reference to D's assistance. 3.4 In examples 3A to 3C, instead of seeking to render assistance, D might have sought to render encouragement by urging D to commit burglary or by posting a letter encouraging P to publish the racist pamphlet. Had D done so, in examples 3A and 3B, he or she would have been guilty of the common law inchoate offence of incitement. In example 3C, D would have been guilty of attempting to incite.[3] 3.5 The difference in the way that the common law treats encouragement and assistance for the purposes of inchoate liability is striking. There is a possible historical explanation. In developing the inchoate offences, the courts sought to identify a cogent reason to justify imposing criminal liability for conduct that merely enhanced the prospect of actual harm occurring. The cogent reason that they identified was an intention on the part of D to bring about harm. Although there will be exceptions, those who encourage others to commit an offence generally do so with the intention that the offence be committed. The same is not true of those who render assistance. Such persons, particularly if the assistance is rendered in return for payment, are frequently indifferent as to whether or not the offence is committed. 3.6 Whatever the explanation, the rendering of assistance, no less than the rendering of encouragement, increases the likelihood of harm occurring. The Supreme Court of Canada, identifying the rationale underlying liability for incitement, has recently observed:… if the primary act (for example, killing) is harmful, society will want people not to do it. Equally, it will not want them even to try to do it, or to counsel or incite others to do it. For while the act itself causes actual harm, attempting to do it, or counselling, inciting or procuring someone else to do it, are sources of potential harm – they increase the likelihood of that particular harm's occurrence.[4]
The rationale applies with equal force to acts of assistance.
3.7 Partly because of the absence at common law of an inchoate offence of assisting crime, Parliament has enacted a considerable number of statutory offences that criminalise particular instances of inchoate assistance.[5] However, there are no statutory inchoate offences of assisting some of the most serious, including murder, robbery, blackmail or burglary. We agree with Professor John Spencer that there "is a general problem, and it needs a general solution".[6] 3.8 In addition, Professor Spencer has argued that the lack of a general inchoate offence of assisting crime has had an unfortunate knock-on effect, which we now consider.3.9 According to Professor Spencer:THE DISTORTION OF OTHER OFFENCES TO COMPENSATE FOR THE LACK OF INCHOATE LIABILITY FOR ASSISTING CRIME
… the lack of an inchoate offence of facilitation creates a theoretical gap in the criminal law through which undeserving rogues threaten to escape, and [which] the courts regularly plug … by bending other offences, with baleful side effects.[7]
The offences to which he was referring to include statutory conspiracy and common law conspiracy to defraud.
3.10 Section 1(1) of the Criminal Law Act 1977 provides:Statutory conspiracy
3.11 Prior to the enactment of s 1(1), the Law Commission had recommended that "the law should require full intention and knowledge before a conspiracy can be established".[8] The reference to "full intention" denoted an intention to bring about any consequence specified in the definition of the actus reus of the substantive offence.[9] During the Criminal Law Bill's passage through Parliament, the Lord Chancellor stated that "the law should require full intention and knowledge before conspiracy can be established".[10] It seems therefore that Parliament intended that a party to an agreement should be guilty of statutory conspiracy only if he or she intended that the agreed offence should be committed. 3.12 In Anderson[11] D, in return for payment, agreed with P that he would help P escape from prison by providing some cutting equipment. No attempt was made to put the plan into effect. D was charged with conspiracy to effect the escape of a prisoner.[12] D submitted that he could not be convicted of the offence because, although he had intended to provide the equipment, he had never intended that the escape plan should be carried into effect. Additionally, he claimed that he believed that the escape plan could not possibly succeed. After an adverse indication by the trial judge, D pleaded guilty. 3.13 The House of Lords upheld D's conviction. It was sufficient to prove that, when entering into the agreement, D knew that the envisaged course of action, if pursued, would involve the commission of an offence and that he had intended to play some part in the agreed course of conduct. Lord Bridge articulated the policy reasons underlying the decision:[I]f a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, … will necessarily amount to or involve the commission of any offence … by one or more of the parties to the agreement … he is guilty of conspiracy to commit the offence … in question.
I am clearly driven by the diversity of roles which parties may agree to play in criminal conspiracies to reject any construction of the statutory language which would require the prosecution to prove an intent on the part of each conspirator that the criminal offence … should in fact … be committed. A simple example will illustrate the absurdity to which this construction would lead. The proprietor of a car firm agrees for a substantial payment to make available a hire car to a gang for use in a robbery … . Being fully aware of the circumstances of the robbery in which the car is proposed to be used he is plainly a party to the conspiracy to rob.… . Yet, once he has been paid, it will be a matter of complete indifference to him whether the robbery is in fact committed or not. … Parliament cannot have intended that such parties should escape conviction of conspiracy on the basis that it cannot be proved against them that they intended that the relevant offence or offences should be committed.[13]
The effect of the decision is that there can be a criminal conspiracy which none of the conspirators intend to carry out.[14]
3.14 It is true that, even if there had been an inchoate offence of assisting crime, there would still have been a need in Anderson to distort the law of conspiracy in order to secure D's conviction. This is because D was injured in a traffic accident before he could provide or attempt to provide the cutting equipment and he, therefore, did not provide any assistance. However, an inchoate offence of assisting crime would address the policy concerns expressed by Lord Bridge in cases where D does provide assistance pursuant to the agreement that he or she enters into.3.15 In Hollinshead[15] the accused - D1, D2 and D3 – manufactured and agreed to sell to X, an under-cover police officer, devices to be fitted to electricity meters to make them under-record the amount of electricity used. They expected X to re-sell the devices to users of electricity for use in defrauding electricity boards. They were charged with conspiring to aid, abet, counsel or procure persons unknown to commit the offence of evading liability by deception[16] and, alternatively, with conspiracy to defraud. They were convicted of conspiracy to defraud. 3.16 The House of Lords held that they had been rightly convicted of conspiracy to defraud because they manufactured and sold the devices for the dishonest purpose of enabling the devices to be used to the detriment of electricity boards. The decision is open to two objections. First, the purpose of the accused was to make a profit rather than to cause loss to electricity boards. This was unaffected by the fact that the only function of the devices was to cause loss to electricity boards. Secondly, the conspiracy did not involve any of the accused perpetrating the contemplated fraud. The accused had merely conspired to manufacture and sell the devices. In executing their conspiracy and selling the devices, they were not defrauding anyone. 3.17 The decision makes it possible to convict of conspiracy to defraud those who contemplate that the execution of their agreement will facilitate a third party to perpetrate a fraud. According to Professor Spencer, the House of Lords did so by making "an offence which was already vague and amorphous even more so".[17] The need to do so would have been obviated had there been an inchoate offence of assisting crime.Conspiracy to defraud
THE COMMON LAW OFFENCE OF INCITEMENT
3.18 The common law inchoate offence of incitement imposes criminal liability in respect of conduct by D that encourages P to commit an offence. Provided D satisfies the fault element of the offence, D is liable as soon as the encouragement comes to P's attention. If P is in fact encouraged and does commit the offence, D is guilty of the offence as an accessory.Introduction
The elements of the offence
3.19 It is clear that to propose, to persuade or to exhort another person to commit an offence is to engage in the proscribed conduct of the offence. In Marlow[18] the Court of Appeal referred to "encourage" and said that the word "represents as well as any word can the concept involved".[19] Marlow confirms that there does not have to be an element of persuasion or pressure. 3.20 The incitement may be implied. In Invicta Plastics Ltd v Clare,[20] D was convicted of incitement by virtue of advertising a device that could not be used without at the same time committing the offence that D was charged with inciting. In contrast, a mere intention to manufacture and sell a device that cannot be used without committing an offence does not amount to incitement.[21] 3.21 The conduct element is capable of being satisfied even if the initiative is taken by P in the form of inviting D to encourage P to commit an offence. In Goldman[22] P published an advertisement inviting readers to buy indecent photographs of children under 16. D replied offering to buy the photographs. D was convicted of attempting to incite P to distribute indecent photographs of children under 16.[23] 3.22 The target of D's incitement has to be a person[24] but it does not have to be a particular individual or group. In Most[25] D was held liable for inciting murder on the basis of a newspaper article he wrote seemingly addressed to the world in which he encouraged political assassinations.[26] 3.23 The encouragement must come to the attention of the intended recipient[27] but it is not necessary that anyone is in fact encouraged.[28] Thus, in Marlow[29] D would have been liable even if nobody reading his book had been encouraged to cultivate cannabis. Likewise, in DPP v Armstrong[30] D was liable for inciting an undercover police officer to distribute indecent photographs of children under 16 despite the officer himself never having any intention of distributing the material. 3.24 If the encouragement does not come to P's attention, D can be convicted of attempting to incite[31] provided that the offence incited is triable on indictment or triable either way[32] and D does an act that is more than merely preparatory to the commission of the full offence.[33] Thus, if D posts a letter to P urging P to murder V but the letter is intercepted or reaches but is never read by P, D is guilty of attempt to incite murder.The proscribed conduct
3.25 The general principle is that the act incited must be one that, if done, would involve P committing a substantive offence[34] as a principal offender. The principle gives rise to problems in cases where, were the act incited to be done:The conduct incited
(1) P would not commit any offence;
(2) P would commit an inchoate, but not a substantive, offence;
(3) P would commit a substantive offence but as an accessory rather than a principal offender.
INCITING P TO DO AN ACT WHICH, IF DONE, WOULD NOT INVOLVE P COMMITTING ANY OFFENCE
3.26 There is a conclusive presumption that a child under 10 cannot be guilty of a criminal offence.[35] If P encourages a child under 10 to commit an offence, whether or not D is criminally liable may depend on whether or not the child commits or attempts to commit the offence. If the child does commit or attempt to commit the offence, D, by virtue of the doctrine of innocent agency, is guilty of the offence that he or she has encouraged the child to commit.[36] 3.27 However, there is no authority that has applied the doctrine of innocent agency to incitement. It is uncertain, therefore, whether D can be guilty of incitement if he or she encourages a child under 10 to commit an offence if the child, for whatever reason, does not commit or attempt to commit the offence.P is aged under 10
3.28 In Tyrrell[38] D, a girl aged between 13 and 16 encouraged P to have sexual intercourse with her. It was an offence for a man to have sexual intercourse with a child aged between 13 and 16.[39] D was charged with being an accessory to P's offence and, alternatively, with inciting P to commit the offence. Lord Coleridge CJ said that the Criminal Law Amendment Act 1885 had been passed "for the purpose of protecting women and children against themselves"[40]. He concluded that it was impossible to say that Parliament intended that those persons for whose protection an offence had been created could be convicted of being an accessory to the offence or of inciting it.[41] 3.29 Subsequently, the Court of Appeal has held that if D incites P to commit an offence that P cannot commit because of the Tyrrell exemption, D cannot be guilty of inciting P to commit the offence.[42] In doing so, the Court of Appeal decided that it was not an offence at common law for a man to incite a girl of 15 to permit him to have sexual intercourse with her. Lord Justice Scarman said that the Court had reached its decision with regret and that "plainly a gap or lacuna in the protection of girls under the age of 16 is exposed by [the court's decision]".[43] The decision enables D to take advantage of a principle designed for the protection of P.[44]The offence cannot be committed by P because it exists for P's protection[37]
3.30 In some cases, were P to perpetrate the act incited, P would lack the fault element of the offence:P does not satisfy the fault element of the offence
Example 3D
D encourages P to have sexual intercourse with V. D tells P to ignore any protest by V because V enjoys feigning lack of consent even when she is consenting. D knows that what he is telling P is untrue.
If P had intercourse with (non-consenting) V but under a reasonable belief that she was consenting, P would not be guilty of rape.[45] There is authority, however, that in those circumstances D would be guilty of rape as an accessory despite the fact that P has not committed the offence.[46] Yet, it seems that if P decides not to have intercourse with V, D cannot be convicted of incitement to rape. This is because the Court of Appeal has held that in order for D to be guilty of incitement, P must satisfy the fault element of the principal offence.[47]
3.31 Duress is a complete defence to all offences except murder,[48] attempted murder[49] and, possibly, some forms of treason. The defence does not negate the fault element of the offence and, therefore, if P successfully pleads the defence he or she is acquitted despite having satisfied all the elements of the offence:P acting under duress
Example 3E
D encourages P to rape V and threatens P with serious harm if he does not do so. Fortunately, the police arrive before the intercourse occurs.
It is clear that had P had intercourse with non-consenting V, P would have been able to plead duress as a complete defence to a charge of rape. It is also clear that, as in example 3D, D would be guilty of the offence as an accessory despite the fact that P not committed the offence.[50] However, there is no authority on whether D can be convicted of incitement if P does not have intercourse with V because, for example, of the fortuitous intervention of a third party.
3.32 We acknowledge that the fact that, in examples 3D and 3E, D can be convicted of being an accessory should P commit the act incited, is not a conclusive reason why D should be guilty of incitement if P does not perpetrate the act. As Smith and Hogan points out, in cases of incitement "the full offence is merely in prospect".[51] Nevertheless, we believe that it is unsatisfactory for D to incur no criminal liability in circumstances where the reason that P would not commit an offence is D's own reprehensible conduct.INCITING P TO COMMIT AN INCHOATE OFFENCE
3.33 Cases of incitement usually involve D encouraging P to commit a substantive offence. Sometimes, however, D incites P to commit an inchoate offence:(1) D incites P to incite X to assault V; or
3.34 The inchoate offences of incitement, conspiracy and attempt punish conduct that is a step removed from the commission of the principal offence. However, in cases where D incites P to incite X to assault V, D's conduct is two steps removed from the principal offence. The underlying problem is in identifying the point at which conduct is so far removed from the commission of a principal offence that it ought not to be criminalised.[52](2) D incites P1 and P2 to conspire to assault V.
3.35 At common law it was an offence for D to incite P1 and P2 to conspire to commit an offence:Incitement to commit conspiracy
Example 3F
D, who hates V, encourages P1 and P2 to agree to murder V.
If P1 and P2 reach agreement, P1 and P2 are guilty of conspiracy to murder and, D, by encouraging them, is also guilty of the offence as an accessory. However, should P1 and P2 fail to reach agreement, D is not criminally liable because in 1977 Parliament abolished the common law offence of incitement to commit conspiracy.[53]
3.36 By contrast, D can be convicted of inciting P to incite X to commit an offence:Incitement to commit incitement
Example 3G
D urges P to encourage X to murder V. Instead, P reports D to the police. `
D is guilty of inciting P to incite X to commit murder.[54]
3.37 However, recognising that Parliament had abolished the offence of incitement to commit conspiracy, the Court of Appeal has said that a charge of incitement to incite does not lie if the incitement takes the form of inciting P to enter into a conspiracy with a third party.[55] This led the Law Commission to observe, "In relation to incitement the present law has reached the point of absurdity".[56]3.38 It must be unusual for a person to incite another to commit an attempt rather than the completed offence. However, it is possible to envisage an example:Incitement to commit attempt
Example 3H
D, a drug dealer, has previously supplied V with heroin for which V has failed to pay. V requests a further supply. D agrees but, to teach V a lesson, decides to supply V with an innocuous substance. D tells one of his "runners", P, to take the substance to V. D tells P that the substance is heroin. P is arrested before he can take the substance to V. P informs the police of what D had asked him to do.
The defence of impossibility has been abolished for the statutory offence of attempt.[57] Therefore, had P supplied the substance to X, P would have been guilty of attempting to supply a controlled drug to another person.[58] Accordingly, although there is no direct authority, in principle D ought to be guilty of inciting P to attempt to supply a controlled drug.[59]
INCITING P TO COMMIT AN OFFENCE AS AN ACCESSORY
3.39 It is uncertain whether it is an offence to incite a person to commit an offence as an accessory:Example 3J
D encourages P to encourage X to rob V. P is arrested before being able to encourage X.
There is no doubt that D has committed the offence of inciting P to incite X to commit robbery.[60] The issue is whether D can be convicted of inciting P to commit robbery.
3.40 In Whitehouse[61] the Court of Appeal appears to have assumed that an offence of inciting another to commit an offence as an accessory is an offence known to English law. The facts were that D incited his daughter to commit incest with him. In fact, no sexual intercourse took place and there was no attempt at sexual intercourse. Under what was section 11 of the Sexual Offences Act 1956, a girl under the age of 16 could not be guilty of incest. The prosecution, in seeking to uphold D's conviction, submitted that, although D could not be guilty of inciting his daughter to commit incest as a principal offender, he could be guilty of inciting his daughter to be an accessory to incest. 3.41 If inciting another to commit an offence as an accessory is not an offence known to English law, the Court of Appeal could have quashed D's conviction on that short ground. Instead, the Court allowed D's appeal on a different ground, namely that the act incited must be one that, when done, would be a crime by the person incited.[62] D could not be guilty of inciting his daughter to be an accessory to the offence because, had intercourse been attempted or taken place, she would not have been an accessory to her father's offence because of the Tyrrell exemption.[63] 3.42 However, a subsequent ruling suggests that incitement to commit an offence as an accessory is not an offence known to English law. In Bodin,[64] D arranged with P that P would find a third party, X, to assault V. In the event, P did nothing and the assault never took place. D was charged with inciting P to assault V. Had the assault taken place, P would have been guilty of the offence not as a principal offender but as an accessory. The trial judge ruled that the conduct that D incites must involve P committing an offence as a principal offender and not as an accessory. If Bodin is an accurate statement of the law, in example 3K D is guilty of inciting P to incite X to commit robbery but not of inciting robbery. 3.43 The view of leading commentators[65] is that the law is as stated in Bodin. Commenting on the case, Simester and Sullivan state:Perhaps what lies behind the ruling in Bodin is the idea that acts of complicity are too remote from the commission of the principal offence to fall within the mischief of incitement. If this is the reason, it does not sit well with the fact that it is quite irrelevant to liability for incitement whether or not the principal offence is committed.[66]
The fault element of incitement
3.44 According to Smith and Hogan:Introduction
The mens rea of incitement is crucial to the offence and has given rise to confusion in the courts resulting in an unfortunate lack of clarity in the law. It comprises two elements. First, as with attempts, D must intend the consequences specified in the actus reus. … . The second element … is that, as in the case of counselling and abetting, the prosecution must prove that D knew of (or deliberately closed his eyes to) all the circumstances of the act incited which are elements of the crime in question.[67]
3.45 There is no definitive analysis in the case law of what D's attitude towards the commission of the principal offence must be. The authorities point to two possibilities. One leading case suggests that it must be D's purpose that P should commit the principal offence or at least that P should be encouraged to commit it.[68] A requirement of purpose would be consistent with the origin of incitement as a species of attempt.[69] The same case, however, can be interpreted as authority for the proposition that it suffices if D believes that, were P to act on the encouragement, P would inevitably commit an offence.[70]D's attitude towards the commission of the act incited
3.46 In Curr[71] the Court of Appeal held that D could only be guilty of inciting P if, were P to commit the act incited, P would do so with the requisite fault element to be convicted of the principal offence:Knowledge of the circumstances of the act incited
Example 3K
D, aged 40, encourages P, aged 18, to have sexual activity with V who is aged 15 but looks older.[72] D, besides knowing that V is aged 15, believes that P also thinks that V is 15. In fact, P, because of V's appearance and what she has told him, believes that V is aged 17. Just as P and D are about to embark on the sexual activity, V's mother interrupts them. She reports the matter to the police.
If Curr is applied to the facts of example 3K D would not be liable if P reasonably believed that V was 16 because P would not satisfy the fault element of the principal offence. Yet, D knows that V is aged 15 and, in addition, D believes that P believes that V is 15. Curr is an unsatisfactory decision because it focuses on P's rather than D's state of mind. In principle, D ought to be liable provided that:
(1) he or she believes that if P commits the act incited P would do so with the fault required for conviction of the offence; or
(2) D's own state of mind is such that, were he or she to commit the act incited, he or she would do so with that fault.
Whether P in fact satisfies the fault requirement should be irrelevant.
3.47 Equally unsatisfactory is the decision of the Court of Appeal in Shaw.[73] D encouraged a fellow employee to accept bogus invoices and issue cheques upon them. D did so in order to expose his employer's lax accounting systems. The Court held that D was not guilty of inciting P to obtain property by deception because, although P was acting dishonestly and D knew that he was, D's motive was not dishonest. 3.48 In his commentary on Shaw, Professor Sir John Smith said "the court has confused the mens rea of incitement with the mens rea of the offence incited",[74] a criticism that is equally applicable to Curr. Recently the Court of Appeal has said that the approach of the Court in Curr was wrong and that the mens rea of the person incited is "irrelevant".[75] However, since the Court of Appeal acknowledged that its ruling on the issue was unnecessary for its decision, the law remains as stated in Curr.Defences
3.49 Incitement is committed as soon as P is aware of D's encouragement. Thereafter, it is too late for D to withdraw the encouragement because the offence is already complete.Withdrawal
3.50 Whether acting in order to prevent the commission of an offence is a defence to secondary liability and inchoate offences, including incitement, is unclear. The draft Criminal Code Bill provides for a defence to secondary liability where D acts "with the purpose of preventing the commission of an offence"[76] or "with the purpose of avoiding or limiting any harmful consequences of the offence and without the purpose of furthering its commission".[77] 3.51 In the context of secondary liability, the authors of the draft Criminal Code Bill could point to Clarke.[78] D joined other burglars once an offence of burglary had been planned. He claimed that that he did so in order to ensure that the property stolen in the course of the burglary would be recovered. The Court of Appeal held that this could form the basis of a defence if the jury was satisfied that D's conduct was "overall calculated and intended not to further but to frustrate the ultimate result of the crime".[79] 3.52 By contrast, there is no direct authority on whether acting to prevent crime is a defence to incitement. We have explained that in Shaw[80] the Court of Appeal held that D was not guilty of incitement by encouraging P to commit offences of obtaining property by deception because D had not acted dishonestly. D's motive was not to prevent the commission of crime but merely to expose inefficiency. It might be thought, therefore, that the Court would have concluded that the case for exculpating D would have been even stronger had he been acting in order to prevent crime. 3.53 Shaw should be contrasted with Smith.[81] D offered a bribe to an official in order to expose corrupt practices in the local council. D was charged with and convicted of corruptly offering an inducement to an official.[82] The Court of Appeal upheld the conviction. D had acted "corruptly" because it was his intention that the official should enter into a corrupt bargain. The fact that D was not acting dishonestly was irrelevant. 3.54 Smith can be distinguished from Shaw in that in Smith D was charged with a substantive and not an inchoate offence. However, the Privy Council has held that it is no defence to a charge of conspiracy that an undercover drug enforcement officer who entered into a conspiracy to export heroin did so in order to expose the operation.[83] We agree with Professor Ashworth's description of the current law - "in confusion".[84]Crime prevention
3.55 The defence of impossibility is peculiar to inchoate offences. At common law, impossibility was capable of being a defence to attempt, conspiracy and incitement. However, by virtue of the Criminal Law Act 1977[85] and the Criminal Attempts Act 1981,[86] impossibility is no longer a defence to statutory conspiracies and attempts respectively.[87] 3.56 By contrast, it is the common law that continues to govern the defence of impossibility for common law conspiracies[88] and incitement.[89] The general principle is that impossibility is a defence to incitement unless the impossibility is merely the result of the inadequacy of the means to be used to commit the principal offence:Impossibility
Example 3L
D encourages P to murder V. However, unknown to D, V is already dead.
Since V is dead, D is inciting P to do something that it is impossible to do. D is not guilty of incitement to murder.[90]
3.57 By contrast:Example 3M
D gives P a jemmy and urges P to break into V's safe and steal a diamond. The diamond is in the safe but it would be impossible to break into the safe using the jemmy that D has provided.[91]
D cannot plead impossibility because the only reason why the offence cannot be committed is because the jemmy is an insufficient tool for breaking into the safe. This is right because the effectiveness of any assistance that D provides should be irrelevant in determining liability for an offence that is founded upon encouragement rather than assistance.
3.58 The defence of impossibility is not available in cases where D incites P to commit an offence that it is possible for P to commit, albeit only at some time in the future:Example 3N
D encourages P to murder, when it is born, her as yet unborn child.
D is guilty of incitement to murder.[92]
Note 1 By contrast, in example 3A, it would be absurd if D, although having done all that he or she set out to do, could be an accessory to attempted burglary in circumstances where P has not attempted to commit the offence – see J C Smith, “Secondary participation and inchoate offences” in C F H Tapper (ed) Crime, Proof & Punishment, Essays in Honour of Sir Rupert Cross (1981) 21, 37. [Back] Note 2 Criminal Attempts Act 1981, s 1(4)(b). The wording of the provision is based on a fallacy, namely that “aiding, abetting counselling, procuring or suborning” an offence is an offence known to English law. There is no such offence. A person who aids, abets counsels or procures the commission of an offence is guilty of the offence that he or she has aided, abetted, counselled or procured. As interpreted in Dunnington [1984] QB 472, the provision does not prevent D being convicted of attempt where his or her conduct does in fact encourage or assist P but P’s attempt to commit the principal offence is unsuccessful. In such a case, both D and P are guilty of attempt to commit the principal offence. However, it does prevent D being convicted of attempting to commit an offence that has been committed by P if, despite trying to encourage or assist P, D’s conduct does not in fact do so, as in examples 3B and 3C above. [Back] Note 3 Banks and Banks (1873) 12 Cox CC 393; Ransford (1874) 13 Cox CC 9; R v Chelmsford Justices, ex p Amos [1973] Criminal Law Review 437. [Back] Note 4 R v Hamilton 2005 SCC 47, para 25, by Fish J delivering the judgement of the majority of the Supreme Court of Canada. [Back] Note 5 Examples are Treason Act 1351; Prison Act 1952, s 39; Forgery and Counterfeiting Act 1981, s 17(1); Computer Misuse Act 1990, s 2(1)(b) and 2(3); Terrorism Act 2000, ss 12(2) and 17; Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 4(2). [Back] Note 6 “Trying to help another person commit a crime” in P Smith (ed) Essays in Honour of J C Smith (1987) 148, 159. [Back] Note 7 Above, 148 to 149. [Back] Note 8 Report on Conspiracy and Criminal Law Reform (1976) Law Com No 76 at para 1.39. [Back] Note 9 Above, para 7.2(5). [Back] Note 10 Hansard (HL) 20 January 1977, vol 379, cols 154-155. [Back] Note 12 Contrary to the Criminal Law Act 1977, s 1(1). [Back] Note 13 [1986] AC 27, 38. [Back] Note 14 Subsequent cases have shown a reluctance to follow Anderson. In McPhillips [1989] NI 360 the Court of Appeal of Northern Ireland sought to distinguish it. In Yip-Chiu-Cheung [1995] 1 AC 111, a case of common law conspiracy, the Privy Council, without referring to Anderson, held that the prosecution must prove that each conspirator intends the agreement to be carried out. In Edwards [1991] Criminal Law Review 45 the Court of Appeal held that D was guilty of conspiracy to supply amphetamine only if he intended to supply it. However, again the Court made no reference to Anderson. More recently, Lord Nicholls, without referring to Anderson, said, “The conspirators must intend to do the act prohibited by the substantive offence” – Saik [2006] UKHL; [2006] 2 WLR 993. [Back] Note 16 Contrary to the Theft Act 1978, s 2. [Back] Note 17 “Trying to help another person commit an offence” in P Smith (ed) Essays in Honour of J C Smith (1987) 148, 156. [Back] Note 18 [1997] Criminal Law Review 897 in which D published a book that contained advice on the cultivation of cannabis. By contrast, in A Criminal Code for England and Wales vol 2 Commentary on Draft Criminal Code Bill (1989) Law Com No 177, the Commission specifically rejected (para 13.6) the suggestion that “encourage” rather than “incite” should be used to describe the conduct component. It was feared that “encourage” might be interpreted as requiring that the person incited was actually encouraged. [Back] Note 20 [1976] RTR 251. In “Trying to help another person commit a crime” P Smith (ed) Essays in Honour of JC Smith (1987) 148, 152 to 154, Professor Spencer has criticised the decision and cites it as another illustration of how the lack at common law of inchoate liability for assisting the commission of an offence has led to the distortion of other offences. [Back] Note 21 James and Ashford (1985) 82 Cr App R 226, 232. [Back] Note 22 [2001] Criminal Law Review 894. [Back] Note 23 It is unclear why D was charged with attempting to incite rather than incitement. Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 265 criticises the decision on the grounds that it extends the natural meaning of incitement and, thereby, enables the willing purchaser of a controlled drug to be convicted of inciting the supplier to commit the offence of supplying a controlled drug. [Back] Note 24 It is not an offence to incite a machine. It is true that in O’Shea [ 2004] Criminal Law Review 894 the Court of Appeal accepted that, by subscribing to a website with indecent images of children, there was a prima facie case that D had incited P, the business offering supply on the site, even though D’s communication had been with a wholly automated computer system. However, as Smith and Hogan, Criminal Law (11th ed 2005) p 352 points out, “… D’s communication with [P] can be proved from evidence that the business responded for example, by producing bi-weekly updates to the website to reflect requests”. [Back] Note 25 (1881) 7 QBD 244. [Back] Note 26 In Invicta Plastics Ltd v Clare [1976] RTR 251 D was held liable for inciting motorists generally. [Back] Note 27 Banks and Banks (1873) 12 Cox CC 393; Ransford (1874) 13 Cox CC 9. If the target of the incitement is a group of persons, it suffices if the encouragement comes to the attention of one of them. If the target is people generally, it must come to the attention of someone. [Back] Note 28 Most (1881) 7 QBD 244; DPP v Armstrong [2000] Criminal Law Review 379. [Back] Note 29 [1997] Criminal Law Review 897. [Back] Note 30 [2000] Criminal Law Review 379. [Back] Note 31 Banks and Banks (1873) 12 Cox CC; Ransford (1874) 13 Cox CC 9; R v Chelmsford Justices ex p Amos [1973] Criminal Law Review 437. Whereas, the Criminal Attempts Act 1981 abolished the offence of attempt to commit conspiracy it left intact attempt to incite. [Back] Note 32 Criminal Attempts Act 1981, s 1(4). [Back] Note 33 Criminal Attempts Act 1981, s 1(1). [Back] Note 34 As opposed to an inchoate offence. [Back] Note 35 Children and Young Persons Act 1933, s 50. [Back] Note 36 See Part 1 n 27 above. [Back] Note 37 For detailed discussion, see Professor Glanville Williams, “Victims and other exempt parties in crime” (1990) 10 Legal Studies 245. [Back] Note 38 [1894] 1QB 710. [Back] Note 39 Criminal Law Amendment Act 1885, s 5. [Back] Note 40 [1894] 1 QB 710, 712. [Back] Note 41 At least if the protected person is or would be the victim of the principal offence. [Back] Note 42 Whitehouse [1977] QB 868. See also Pickford [1995] 1 Cr App R 420, 424. In response to the decision in Whitehouse, the Criminal Law Act 1977, s 54 made it an offence to incite a girl under 16 to have incestuous sexual intercourse but the general principle is unaffected. [Back] Note 43 [1977] QB 868, 875. [Back] Note 44 The Court of Appeal has recently applied Whitehouse in the context of incitement to commit buggery – Claydon [2005] EWCA Crim 2827; [2006] 1 Cr App R 20. The Court said that it too reached its decision with regret. [Back] Note 45 Sexual Offences Act 2003, s 1(1)(c). [Back] Note 46 Cogan and Leak [1976] QB 217. [Back] Note 47 Curr [ 1968] 2 QB 944. In paras 3.46 to 3.48 we consider Curr in more detail [Back] Note 48 Howe [1987] AC 417 [Back] Note 49 Gotts [1992] 2 AC 412 [Back] Note 50 Bourne (1952) 36 Cr App R 125. [Back] Note 51 Criminal Law (11th ed 2005) p 356. [Back] Note 52 We consider this issue in detail in Part 7. [Back] Note 53 Criminal Law Act 1977, s 5(7). However, Parliament has not abolished the common law offence of conspiracy to incite so that D and P can be convicted of, for example, conspiring to incite X to murder V – Booth [1999] Criminal Law Review 144. [Back] Note 54 Sirat (1985) 83 Cr App R 41; Evans [1986] Criminal Law Review 470. [Back] Note 55 Sirat (1985) 83 Cr App R 41. [Back] Note 56 Criminal Law: A Criminal Code for England and Wales, vol 2 Commentary on Draft Criminal Code Bill (1989) Law Com No 177, para 13.13, [Back] Note 57 Criminal Attempts Act, s 1(3). [Back] Note 58 Contrary to the Criminal Attempts Act 1981, s 1(1). D would have been an accessory to P’s attempt – Hapgood and Wyatt (1870) LR1 CCR 221. [Back] Note 59 In passing, it should be noted that X, by asking D to supply cannabis, has incited P to supply a controlled drug. [Back] Note 60 See para 3.36 above. [Back] Note 62 See para 3.29 above. [Back] Note 63 Tyrrell [1894] 1 QB 710 – see para 3.28 above. The daughter in Whitehouse was a member of the class of persons that the offence in question was designed to protect. [Back] Note 64 [1979] Criminal Law Review 176. Since it is a Crown Court ruling it is of no formal authority. However, it was referred to without criticism by the Court of Appeal in Sirat (1985) 83 Cr App R 41. [Back] Note 65 Smith and Hogan, Criminal Law (11th ed 2005) p 357; Simester and Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 266. [Back] Note 66 Criminal Law Theory and Doctrine (2nd ed 2003) p 266. [Back] Note 67 Criminal Law (11th ed 2005) pp 353 to 354. [Back] Note 68 Marlow [1997] Criminal Law Review 897. [Back] Note 69 Higgins (1801) 2 East 5, 102 ER 269. [Back] Note 70 On one view, Invicta Plastics Ltd v Clare [1976] RTR 251 also supports this proposition. [Back] Note 71 [1968] 2 QB 944. [Back] Note 72 It is an offence under s 9 of the Sexual Offences Act 2003 for P to have sexual activity with a child under 16 if P does not reasonably believe that the child is 16 or over. [Back] Note 73 [1994] Criminal Law Review 365. [Back] Note 75 C [2005] EWCA Crim 2817 [30]. Previously the Divisional Court in DPP v Armstrong [2000] Criminal Law Review 379 had sought to distinguish both Curr and Shaw. Professor Sir John Smith described the Court’s attempt to distinguish them as “unconvincing” – [2000] Criminal Law Review 380. [Back] Note 76 Clause 27(6)(a). [Back] Note 77 Clause 27(6)(b). [Back] Note 78 (1984) 80 Cr App R 344. [Back] Note 79 Above, 347 to 348. [Back] Note 80 [1994] Criminal Law Review 365. [Back] Note 81 [1960] 2 QB 423. [Back] Note 82 Contrary to the Public Bodies Corrupt Practices Act 1889, s 1. [Back] Note 83 Yip Chiu-Cheung v R [1995] 1 AC 111. The Privy Council so ruled in upholding the defendant’s conviction. The defendant had argued that he could not be guilty of conspiracy if the officer was not guilty of the offence. The officer was never prosecuted for the offence. [Back] Note 84 Principles of Criminal Law (4th ed 2003) p 441. [Back] Note 85 Section 1(1)(b). [Back] Note 86 Section 1(2) and (3). [Back] Note 87 The leading case on the proper interpretation of the Criminal Attempts Act, s 1(2) and (3) is Shivpuri [1987] AC 1 overruling Anderton v Ryan [1985] AC 560. [Back] Note 88 DPP v Nock [1978] AC 979. [Back] Note 89 In Fitzmaurice [1983] QB 1083 the Court of Appeal said that the principles to be applied were those laid down by the House of Lords in Haughton v Smith [[1975] AC 476, a case decided when attempt was a common law offence. [Back] Note 90 However, if D was aware that V was dead, D could be convicted of inciting attempted murder. A person can commit an offence by attempting to do the impossible – Criminal Attempts Act 1981, s 1(2). Inciting P to attempt the impossible is not the same as inciting P to do the impossible – see example 3H above at para 3.38. [Back] Note 91 The example is taken from Smith and Hogan, Criminal Law (11th ed 2005) p 421. [Back] Note 92 Shepherd [1919] 2 KB 125. See also McDonough (1962) 47 Cr App R 37. [Back]
