kembaraXtra-Case Law -Case: Whitehouse (1977) CA

Facts:

The defendant encouraged another person to carry out conduct which, because of that person’s legal status and age, did not amount to an offence on their part.

Issue:

Can a person be guilty of incitement where the person being encouraged is not legally capable of committing the offence?

Held:

No. The defendant was not guilty of incitement because the person he sought to persuade could not legally commit the offence.

Principle:

At common law, incitement requires the defendant to encourage another person to commit a crime. As Scarman LJ stated, an inciter is someone who seeks to influence another person’s mind towards the commission of a criminal offence.

Significance:

The case illustrates that, under the former common-law offence of incitement, the proposed conduct had to constitute a crime by the person being incited.

Note:

The law was later changed by statute so that certain forms of encouragement involving persons below the specified age became expressly criminalised.

Kembaraxtra-Case Law- Invicta Plastics Ltd v Clare (1976)

Case Summary

• Case: Invicta Plastics Ltd v Clare (1976)
• Facts: Defendant advertised a police radar alerting device. Operating the device required a license, making its use without one illegal. Ownership itself was not illegal.
• Issue: Was advertising the device an incitement to an unlawful act?

Legal Principle

• Holding: The defendant was found guilty of inciting an unlawful act.
• Reasoning (Park J): Incitement can be implied from the overall actions, even if not express. The advertisement persuaded and incited the use of the device, which, without a license, was unlawful.
• Key Concept: Actus reus (guilty act) for incitement can be implied rather than explicitly stated.

Modern Context Note

• Subsequent Legislation: Radar alerting devices are now exempt from licensing requirements under the Wireless Telegraphy Apparatus (Receivers) (Exemption) Regulations 1989.
• Implication: The specific act in this case (operating a radar alerting device without a license) is no longer unlawful due to changes in legislation. However, the legal principle regarding implied incitement remains relevant.

Kembaraxtra-Case Law- Race Relations Board v Applin (1973) CA

Case Summary

• Parties: Race Relations Board (Plaintiff) vs. Applin (Defendant)
• Facts:
• Defendant distributed a circular.
• Circular complained about a neighbor adopting non-white foster children.
• Defendant's stated purpose was to persuade the neighbor to adopt only white foster children.
• Court: Court of Appeal (CA)
• Decision: Defendant was found guilty of incitement to do an unlawful act.
• Legal Basis: Race Relations Act 1968.

Key Legal Principle: Definition of "Incitement"

• Lord Denning's Definition: "To 'incite' means to urge or spur on by advice, encouragement or persuasions, and not otherwise..."
• Methods of Incitement: "A person may 'incite' another to do an act by threatening or by pressure, as well as by persuasion."

Analysis Point: Intent vs. Recklessness

• Observation from Case: The defendant's specific intention (to have the neighbor adopt only white children) was not deemed the sole determinative factor for incitement.
• Open Question: Does this imply that recklessness could be an element of the offence of incitement under the Race Relations Act 1968, given that direct intent was not solely determinative?
• This is a question for further legal analysis beyond the immediate ruling on incitement methods.

Kembaraxtra-Case Law- Incitement/Solicitation to Commit an Offence-Case Summary: Higgins (1801)

• Facts: Defendant (D) solicited a servant to steal their master's goods.
• Holding: It is an indictable offence at common law to incite or solicit a person to commit any offence.

II. Key Principles from Higgins (1801)

1. Solicitation as an Act: Lord Kenyon CJ stated, "...is there is not an act done, when it is charged that the defendant solicited another to commit a felony? The solicitation is an act."

• This confirms that the act of soliciting itself constitutes an actionable offense.

1. Form of Incitement: D may incite by words as well as by acts.

• The method of incitement is not limited to physical actions; verbal encouragement or persuasion is sufficient.

III. General Concepts

• Definition: Incitement (or solicitation) involves encouraging, persuading, or commanding another person to commit a criminal offense.
• Nature of Offense: It is an inchoate (incomplete) offense, meaning it is punishable even if the substantive crime is never committed.
• Elements:
• Actus Reus: The act of soliciting, encouraging, or commanding.
• Mens Rea: Intent that the solicited person commit the offense.
• Common Law Basis: This offense originated and is recognized under common law.

Kembaraxtra-Case Law- Conspiracy to Defraud: Public Duty-Case: Moses and Ansbro (1991) CA

Key Facts

• Parties: Moses (former employee) and Ansbro (employee) of the DHSS.
• Action: Agreed to obtain National Insurance numbers for immigrants not entitled to them.
• Issue: Whether this constituted conspiracy to defraud.

Legal Principle

• Ruling: Moses and Ansbro were found guilty of conspiracy to defraud.
• Per Jowitt J.: DHSS officers processing applications that should not have been processed were acting contrary to their public duty.

Definition of Conspiracy to Defraud (Public Sector)

• Source: Lord Diplock's dictum in Scott v Metropolitan Police Commissioner.
• Key Elements:

1. Intended Victim: A person performing public duties (not a private individual).
2. Purpose: To cause the public servant to act contrary to their public duty.
3. Means: The intended means of achieving this purpose must be dishonest.
4. Economic Loss: The purpose does not need to involve causing economic loss to anyone.

Application to the Case

• Moses and Ansbro's actions aimed to make DHSS officers process invalid applications.
• This caused the officers, in their public capacity, to act contrary to their duty.
• The means (obtaining numbers for ineligible individuals) were dishonest.
• The absence of economic loss was irrelevant, as per the Scott principle for public duty victims.

Kembaraxtra-Case Law-Conspiracy to Defraud: Wai Yu-tsang v R (1991)

Case Summary

• Case Name: Wai Yu-tsang v R (1991) PC
• Parties: Wai Yu-tsang (Appellant) v R (Respondent)

Key Facts

• Defendant's Action: Wai Yu-tsang (D) conspired with bank employees.
• Objective: To hide the dishonouring of cheques the bank had purchased.
• Motive: To prevent a "run on the bank" (mass withdrawals by customers).

Legal Issue

• Whether D's actions constituted conspiracy to defraud, particularly in the absence of direct economic loss or deprivation of a tangible asset.

Holding

• Guilty: D was found guilty of conspiracy to defraud.

Principle Established (Ratio Decidendi)

• Scope of "Defraud": The concept of "defraud" is broad and not restricted to:
• Economic loss.
• Deprivation of something of value.
• Extended Meaning: It encompasses the "purpose of the fraud and deceit."
• Prejudice Requirement: If anyone "may be prejudiced in any way by the fraud," it is sufficient for the offense.

Key Quote

• "Not limited to the idea of economic loss, nor the idea of depriving someone of something of value. It extends generally to the purpose of the fraud and deceit ... If anyone may be prejudiced in any way by the fraud, that is enough." – Lord Goff

Implications

• This case significantly broadened the understanding of "defraud" in common law, moving beyond direct financial detriment to include situations where potential prejudice or risk is created by deceit.

Kembaraxtra-Case Law -Scott v Metropolitan Police Commissioner (1975) HL

Case Summary

• Facts: The defendant (D) conspired with cinema employees to temporarily remove films for unauthorized copying and commercial distribution without the owners' consent.
• Holding: D was found guilty of conspiracy to defraud at common law.

Key Legal Principles

• Definition of Conspiracy to Defraud (Per Viscount Dilhorne):
• "An agreement between two or more by dishonesty to deprive a person of something which is his or to which he is or would or might be entitled..."
• "...and an agreement by two or more to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud."
• Deception: Not a requisite element of the offence of conspiracy to defraud at common law.

Important Note

• This common law conspiracy offence remains in effect and is not replaced by statute (specifically, s 5(2) of the Criminal Law Act 1977).

Kembaraxtra-Case Law- Knuller v. Director of Public Prosecutions (1973)

HL

I. Case Summary

• Facts: The defendant (D) published a magazine containing advertisements soliciting homosexual acts among consenting adults.
• Holding: D was found guilty of conspiracy to corrupt public morals.

II. Key Legal Principles & Definitions

A. Conspiracy to Corrupt Public Morals

• Definition of "Corrupt":
• Lord Reid: "Corrupt the morals of such members of the public as may be influenced by the matter published." Synonymous with "deprave."
• Lord Simon: "Conduct which a jury might find to be destructive of the very fabric of society."

B. Outraging Public Decency (Substantive Offence)

• Public Element: "The substantive offence... must be committed in public," meaning before more than one person.
• Threshold: "'Outraging public decency' goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people" (per Lord Simon).

Kembaraxtra-Case Law- Criminal Law: Conspiracy to Corrupt Public Morals

1. Key Case: Shaw v DPP (1962) HL

1.1 Facts

• Defendant (D): Published a "Ladies Directory."
• Content: Listed names and addresses of prostitutes along with services offered.

1.2 Holding

• Guilty of: Conspiracy to corrupt public morals.

1.3 Key Issue

• Lord Reid (dissenting): Questioned how a conspiracy to advertise prostitution could be an indictable offense, given that the mere appearance of a prostitute in public is not a criminal offense under common law.

2. Important Clarification

2.1 Status of Offence

• This common law offense of conspiracy to corrupt public morals is not replaced by statute.
• Reference: Section 5(3) of the Criminal Law Act 1977.

Kembaraxtra-Case Law- Conspiracy: Impossibility

Case Study: Nock (1978) HL

• Facts:
• Defendant (D) and co-defendants agreed to obtain cocaine from a powder.
• Unknown to D, the powder contained no cocaine; it was impossible to produce cocaine from it.
• Held: D was not guilty of conspiracy to produce cocaine.
• Reasoning (Lord Diplock): An agreement to pursue a course of conduct that, if carried out, would not constitute an offense, does not amount to criminal conspiracy, neither at common law nor under s 1 of the Criminal Law Act 1977.

Key Principle: Conspiracy to Commit the Impossible

• General Rule: At common law, and generally for conspiracy offenses not covered by specific statutes, there is no liability for a conspiracy to commit the impossible.
• Impact of Legislation: This common law position remains true for conspiracy offenses despite s 5(1) of the Criminal Attempts Act 1981 (which addresses impossibility in attempts but not conspiracy in the same way).
• Distinction from Attempts: While the law on attempts may treat factual impossibility differently (e.g., attempting to pick an empty pocket can still be an attempt), conspiracy law traditionally requires the agreed-upon act to be legally possible for it to constitute a conspiracy.