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8.3 General Inchoate Offences Lecture – Hands on Examples

The following scenario will give you the opportunity to put your knowledge of the inchoate offences to the test, and examine your ability to identify the offences and apply the provisions and surrounding case law in a practical setting.

Take a look at the following passage and have a go at highlighting the material facts and legal issues, making a note of any ideas or relevant law that springs to mind as you go through. Once you have done this have a go at putting together an answer to the question. Good luck!

If you’re feeling stuck there is really no need to worry. If you haven’t seen one of these questions before then they can be daunting, but there is nothing in the scenario that we haven’t covered in this unit. Use the outline answer provided below as a prompt to help you with your answer or to check any answer you have produced on your own.

Jan is in a restaurant with her friend Sebastian. The pair enjoy a lovely meal together and have a good chat, during which Sebastian offloads to Jan about his unrequited love for their friend Samantha, desperate to understand why she isn’t interested in him. Jan ribs Sebastian saying that the reason why Samantha will never fancy him is that he is too boring and that he doesn’t break the rules enough. “Samantha prefers a bit of a rebel” she tells him. When the bill arrives Jan jokes to Sebastian “go on, let’s do a runner, show Samantha that you aren’t boring after all”. She goes to the toilet and then when she comes back, the pair walk out. Jan believes that Sebastian has paid the bill already but in fact Sebastian has decided to take Jan up on her suggestion and live a little more dangerously, leaving the restaurant without paying for the food. As they leave the waitress goes to run after them but another customer Dave who is annoyed at the poor service and wants to see the restaurant pay sees this and gets in the way, allowing Jan and Sebastian to exit the restaurant without being stopped.

Walking back to the car the pair see Jan’s ex-boyfriend James who recently cheated on Jan leaving her heartbroken. Jan tells Sebastian that she wants to hurt him and make him pay before announcing that she will go and break his nose. She runs off and gets behind James who is facing away from her and swings a punch just as Sebastian catches up with her and restraints her from doing anything further.

Discuss the liability of the parties for any inchoate offences.

Jan

Restaurant

  • Possible offence of encouraging and assisting the offence of making off without payment under either s.44 or s.45 of the Serious Crime Act 2007.
  • s.44
  • Actus Reus
  • Defendant commits an act, and;
  • The act is capable of encouraging or assisting the commission of an offence

This is satisfied on the facts. Jan commits the act of talking Sebastian into committing the offence and the act is capable of encouraging Sebastian to do that through persuasion and knowing how Sebastian feels about Samantha.

  • Mens Rea
  • Intention to encourage or assist in the commission of the offence

On the facts as it appears that Jan is only joking and teasing Sebastian and has no intention to genuinely encourage Sebastian to commit the offence.

  • The mens rea is not satisfied so no liability for an offence under s.44 arises.
  • s.45
  • Actus Reus
  • Defendant commits an act, and;
  • The act is capable or encouraging or assisting the commission of an offence

As above this is satisfied by Jan’s behaviour on the facts.

Mens Rea

  • Belief that the offence will be committed, and;
  • Belief that his act will encourage or assist the commission of the offence

Applying Hall Jan must harbour more than mere suspicion that her actions will encourage or assist the offence and given everything she has said to him, she can come to no other conclusion as to Sebastian’s actions. This is contentious on the facts and could be argued either way. It is likely, however, that given that Jan was joking and that she believes Sebastian to be very well behaved and reluctant to break the rules, coupled with the fact she is oblivious to the fact that Sebastian carries out the offence, suggests that at no point does it cross her mind that she is encouraging Sebastian.

  • According to the interpretation of the facts the mens rea is not satisfied therefore no offence is committed by Jan.

Punch

  • In relation to trying to punch James and break his nose, Jan may be guilty of the attempted GBH under s.1 of the Criminal Attempts Act 1981.GBH is charged under s.18/20 of the Offences Against the Persons Act 1861 where it is specified that the offence is indictable, and therefore qualifying as an act that can be criminally attempted.
  • Actus Reus
  • An act which is more than merely preparatory in the commission of an indictable offence.

Applying Geddes, Jan has embarked upon the offence proper, doing the last possible act she can in throwing the punch, without making and committing the offence.

Mens Rea

  • Intention to commit the offence.

This is established on the facts as it is clear that Jan intends to break James’ nose and thus commit GBH.

  • Applying the law to the facts it is evident that Jan will be guilty of the attempted GBH

Dave

  • Dave may be guilty of intentionally assisting with an offence under the Serious Crime Act 2007.
  • s.44
  • Actus Reus
  • Defendant commits an act, and;
  • The act is capable of encouraging or assisting the commission of an offence

This is satisfied on the facts. Dave commits the act of getting in the way or the waitress allowing Sebastian to successfully leave the restaurant and complete the offence of making off without payment.

  • Mens Rea
  • Intention to encourage or assist in the commission of the offence

On the facts as it appears that Dave intends to assist Sebastian in making off without payment by doing the act of getting in the way of the waitress as he is annoyed at the service he has received and wants to see them lose money.

  • All elements of the offence are therefore satisfied and Dave will likely be liable for an offence under s.44. No defence under s.50 as the facts are as Dave believed in that he was helping them get away and he was not operating under a mistaken belief, for example that he was preventing the waitress from assaulting them.

…For extra marks

Sebastian

It should briefly be mentioned that in relation to Jan’s intention to punch James, Sebastian will not be guilty of conspiracy under s.1 Criminal Law Act 1977 as he is not in agreement as to the course of action, he is merely informed of it seconds before it takes place and does everything he can to prevent Jan thus highlighting that he is not party to any agreement.


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