Criminal Law II

Seminar 4

Criminal Attempts and Accessories

Learning outcomes
By the end of the seminar you will be able to:
1) explain the requirements for establishing criminal liability for an attempted
crime and for being an accessory;
2) apply the relevant law to a hypothetical set of facts and discuss whether
liability may be established; and,
3) critically discuss the “more than merely preparatory” test for the actus reus
of criminal attempts.

Essential Reading
 Macdonald, Text, Cases and Materials on Criminal Law (2nd edn., 2018), pages
511-529 (on criminal attempts), 532-547 (on the actus reus and mens rea of
being an accessory) and 567-573 (on the offences to which one may be an
accessory, the derivative principle and withdrawal).

Further Reading
 Clarkson, ‘Attempt: The Conduct Requirement’ (2009) 29 Oxford Journal of
Legal Studies 25

Seminar Questions
Please ensure that you come to the seminar ready to participate in the discussion,
having prepared (in note form at least) answers to the following questions.

(1)

(a) Karen arrives at Alan’s office for a business meeting. Twenty minutes later there
is a knock at the door. Donald has unexpectedly dropped by to gloat about his latest
successful investment. Alan is so irritated that he attacks Donald. Karen stands and
watches. She does not say or do anything (although secretly she is rather pleased).
Donald suffers a black eye and bruised ribs.

Discuss the criminal liability of Alan and Karen. How (if at all) would your answer be
different if Alan had known that Donald was going to drop by, had told Karen that he
was going to attack Donald, and Karen had gone to Alan’s office to watch the attack?

S8 acessories and arbetors act 1861

Actus reus
- D must have aided, abetted and councelled or procured the commission of
the offence

1
Mens rea
- D have intended to create aid, abet, councel or procure the commission of
the offence
- D must have known or intended the essential elements of the principles
offence

Alan – commits criminal offence

Actus reus and mens rea – ABH

Karen – was she an accessory?

Actus reus
- Karen must have aided, abetted, counselled or preceded the commission of
the offence
- The relevant element here is abetting: did she encourage?
- Must be encouragement in fact

Mens rea
- She knows when it is happening in front of her – she knows what the
principle is doing – she is just standing and watching

How would the answer be different?

1. Alan – Karen knew about it – intention to the principals of the offence
– knows what she is going to do
2. Cox v Jeffery – Alan
encouraged to put on the show – valid enough evidence
Was not evidence of encouragement

Voluntary non accidental presence might be evidence of encouragement, but it is

unlikely to be conclusive on its own – Wilcox v Jeffery

(b) A few weeks later Donald telephones Nick and says, “I want revenge. Please, tell
me where Alan lives”. Nick hesitates. He likes Alan and does not wish him any harm,
but he also does not want to upset Donald. So he gives Donald Alan’s home address.
Nick knows that Donald has a fierce temper and expects him to do something
violent. He suspects that Donald will beat Alan up. In fact, Donald goes to Alan’s
house, throws a brick through Alan’s living room window and then runs away.

Discuss the criminal liability of Donald and Nick.

Donald – criminal damage

Nick – nick is potentially an accessory

Actus reus
- Nick gave Donald his address – he aided the crime
- Provided assistance

2
Mens rea
- Intend to aid? Yes
- Principles offence? He did know that he was going to do something
aggressive to hurt Alan in some way – criminal damage
- Does this matter?

Did nick intend to encourage or assist the offence?

Is it nicks purpose to do so? (Gillick) or is the commission of the offence a virtually
certain outcome of the assistance? (NCB)
Does nick have the mens rea in respect of Donald’s actions?
It isn’t enough to merely know something unlawful was planned (Bainbridge)
But the mens rea would be satisfied if criminal damage was one of the range of
offences nick compensated (maxwell)

(c) The next day Alan telephones Claude and says, “Donald has gone too far this
time. Will you help me kill him?” Claude agrees. That night, Alan and Claude go and
hide outside Donald’s house. Each man takes a gun. After waiting for half an hour
Claude begins to have second thoughts. He says to Alan, “This is a bad idea. Let’s go
home”. Alan replies, “No way, I’m going through with it”. After trying to persuade
Alan to change his mind for several minutes, Claude finally says, “You’re on your
own” and leaves. An hour later Donald arrives home. Alan pulls out his gun and kills
him.

Discuss the criminal liability of Alan and Claude. How (if at all) would your answer be
different if, shortly before Donald arrived home, a policeman had noticed Alan hiding
and arrested him?

Principles offence – murder

Is Claud an accessory?
Actus reus – has he assisted this? Yes
He encouraged for him to do it

Did he effectively withdraw?

Yes – becarra v cooper – said you had to communicate the offence which he did
No – bit late in the day to withdraw
He hasn’t gone beyond mere preparation
Didn’t do enough to countermand

Did Clare effectively withdraw from being an accessory?

Did he unequivocally communicate his withdrawal;?
Did he attempt the countermand his encouragement? (grundy)
Was the plan too far advanced? (beccerra v cooper)

How would the answer be different?

Attempts – issue on whether alan was attempting murder

3
Gone beyond mere preparation – waiting for him outside

Actus reus – did the act was more than preparatory for compassion of the full
offence
Mens rea – intended to commit the full offence

Case law:
Geddes – he was not guilty – contentious case
Campbell – got to give people a chance to change their minds
Merely a propartory – alan
Tosti – how on apply tosti – arguably a full offence – alan - attempted burglary
Difficult line to draw

(2)

‘The case law on the “more than merely preparatory” test contained in section 1(1)
of the Criminal Attempts Act 1981 is confused and inconsistent. Moreover, the
statutory test is too limited in its scope. This results in defendants who should be
convicted of a criminal attempt escaping liability’.

Discuss the extent to which you agree with this statement.