Criminal Law: Inchoate Offences

Inchoate Offences

The inchoate offences apply where the defendant(s) have yet to commit a full criminal offence. In some circumstances, the defendant can be held liable for their actions at an early stage of criminal planning. If a full criminal offence has been committed and the defendant assisted in or encouraged its commission in some way, then the accessory offences will normally be charged instead (though the inchoate offences may still be charged).

Criminal Attempts

Establishing a Criminal Attempt

The actus reus of a criminal attempt is doing ‘an act which is more than merely preparatory to the commission’ of a relevant offence: Criminal Attempts Act 1981, s 1(1).

The mens rea of a criminal attempt is established if the defendant intended to commit the relevant offence and intended to commit the more-than-preparatory act: Criminal Attempts Act 1981, s 1(1).

A defendant may only be convicted of an attempt if the offence is indictable, unless the statute creating the offence states otherwise. There also cannot be double inchoate liability – the defendant cannot be convicted of attempting to conspire, for example: Criminal Attempts Act 1981, s 1(4).

‘Doing an Act’

There is no offence of attempting to commit a crime of omission – the defendant must have done an ‘act’ for the law on attempts to apply: R v Nevard [2006] EWCA Crim 2896.

When is an Act ‘More Than Merely Preparatory’?

The most authoritative test defining what constitutes a more than merely preparatory act can be found in R v Gullefer [1990] 3 All ER 882. In that case, Lord Lane stated that an act was more than merely preparatory if it formed ‘part of a series of acts which would constitute the actual commission [of the offence], if it were not interrupted.’

Subsequent cases seemed to have applied this very strictly, meaning that the defendant must be very far on in the commission of the offence: see for example R v Geddes [1996] Crim LR 894; R v Campbell (1991) 93 Cr App R 350.

If the defendant has passed the point where his acts are more than merely preparatory, then the actus reus of attempt is fulfilled even if the only reason the crime is not completed is because the defendant abandoned his plan: R v Taylor (1859) 1 F&F 511.

Intention to Commit the Offence

Intention to commit the offence includes oblique intention: R v Pearman (1984) 80 Cr App R 259. It also includes conditional intention, such as where the defendant opens a safe-box intending to commit theft only if there is anything expensive inside: Attorney General’s Reference (Nos 1 & 2 of 1979) [1980] QB 180.

If the actus reus of the attempted offence requires knowledge as to circumstances, the defendant must have this knowledge. When determining whether the defendant has the necessary intent or knowledge, the facts are assumed to be as the defendant believed them to be: Criminal Attempts Act 1981, s 1(3).

Problems arise where the underlying offence has a mens rea such as recklessness or suspicion: in these circumstances, what state of mind must the defendant have to commit an attempt? The courts have been split on this point:

The Court of Appeal in R v Khan (1990) 91 Cr App R 29 thought that if the underlying offence allows recklessness as to circumstances to suffice for mens rea, then recklessness also suffices as the mens rea for an attempt.

The Court of Appeal in Attorney General’s Reference (No 3 of 1992) (1993) 98 Cr App R 383 thought that the correct question to ask is whether the defendant’s mens rea makes up for the missing elements of the actus reus.

The Court of Appeal in R v Pace & Rogers [2014] EWCA Crim 186 thought that even if the attempted offence has a lesser mens rea like recklessness, the defendant must intend to commit the offence to be convicted of attempt.

The decision in Khan is often preferred by commentators as the approach in Pace & Rogers would make it very difficult to convict anyone of attempted rape – normally the defendants in those case don’t intend the victim not to consent, they merely don’t care either way. The decision in Attorney General’s Reference (No 3 of 1992) is often thought to be confusing and overly broad. However, without a clarifying decision on the matter from the Supreme Court, there is no clear word on what standard should apply in these cases.


Criminal Conspiracies

Establishing Statutory Criminal Conspiracy

Section 1 of the Criminal Law Act 1977 establishes the offence of statutory conspiracy.

The actus reus of statutory conspiracy is established if the defendant agreed with any other person(s) ‘that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions either (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible’: Criminal Law Act 1977, s 1(1).

The mens rea of statutory conspiracy is met if the defendant (a) intended to reach the relevant agreement with the other person(s) and (b) intended that the agreement would be carried out or that he would ‘play his role’ in the conspiracy: R v Anderson [1986] AC 27.

Relevant Underlying Offences

Unlike criminal attempts, conspiracy to commit a summary offence is illegal (though the consent of the Director of Public Prosecutions is needed to prosecute) and there is no specific bar against trying conspiracies to commit inchoate offences. It is not possible to conspire to aid or abet an offence, however: R v Kenning [2008] EWCA Crim 1534.

When is There an Agreement?

The courts have not defined what an ‘agreement’ means for the purpose of this offence, so it is unclear whether it bears the same meaning as under the law of contract. It appears that the parties must gave decided to actually pursue the course of conduct, and must have gotten beyond mere negotiations: R v Walker [1962] Crim LR 458.

It is possible to have ‘wheel’ agreements (where the defendant agreed with another using a third-party as an intermediary) and ‘chain’ agreements (where the defendant agrees with B, who agrees with C, and so on). As long as the defendant has agreed with at least one other person, this requirement is met: R v Cooper & Compton [1947] 2 All ER 701; R v Mehta [2012] EWCA Crim 1863.

A person can be guilty of conspiracy even if they are not personally capable of carrying out the offence (such as where the defendant, a woman, conspires with a man to rape another woman): R v Whitchurch (1890) 24 QB 420. It is not an offence to enter into conspiracy agreements with the following classes of persons, however:

The defendant’s wife, husband or civil partner: Criminal Law Act 1977, s 2(2). This does not apply if the spouses/partners know there are other parties to the conspiracy: R v Chrastny [1991] 1 WLR 1381.

A child under the age of criminal responsibility (10 years old): Criminal Law Act 1977, s 2(2).

The intended victim of the criminal offences: Criminal Law Act 1977, s 2(2). A person is only the intended victim if the offence is specifically designed to protect the class of people they belong to: R v Gnango [2011] UKSC 59.

Course of Conduct

At common law, it was only necessary for the parties to intend to do the physical acts which would constitute the offence – they did not also need to intend any consequences required by the offence or know of any relevant circumstances which makes the conduct illegal: DPP v Nock [1978] AC 979.

It is not clear whether this also applies to the statutory offence. It is possible that it does not, since the Criminal Law Act 1977 makes it possible to conspire to commit an impossible offence, which was the result that the House of Lords in Nock was trying to achieve by construing ‘course of conduct’ so narrowly. If Nock is no longer good law, the conspirators must likely agree that the relevant circumstances or consequences will exist or happen. This likelihood is reinforced by Section 1(2) of the Act, which states that:

Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence…unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.

This provision means that if an offence requires a particular consequence or circumstance to exist, but does not require the defendant to intend that consequence or circumstance, intention as to circumstances or consequences is still required to convict him of conspiracy to commit the offence.

For example, a defendant who conspires to commit assault cannot be convicted of conspiracy to commit assault occasioning actual bodily harm unless he and at least one other party to the conspiracy intend to inflict actual bodily harm. This is so even though no such is intention is needed for a defendant to be convicted of the primary offence of assault occasioning actual bodily harm if he goes through with the plan – it is strict liability in this respect.

Section 1(2) does not apply to offences which do need intention as a mens rea, but it would be strange if it was easier to establish conspiracy to commit these offences than it is to establish conspiracy to commit a strict liability offence. Lord Nicholls in the House of Lords in R v Saik [2006] UKHL 18 seemed to agree with this, arguing that the defendant must intend or know about relevant circumstances or consequences for all offences.

Intention to Carry Out the Agreement or Play a Role

Usually, the defendant will be convicted on the basis that they intended the crime to be carried out. If they intended the crime to be carried out, then there is no need to prove that they personally intended to play a role in carrying out the crime themselves – their involvement can be passive: R v Siracusa (1989) 90 Cr App 340. If the defendant does intend to play a role in a conspiracy which others intend to carry out, however, there is no need for him to personally intend that the full crime be committed.

For example, in R v Anderson [1986] AC 27 the defendant agreed to help a group of people escape from prison, and offered to provide wire cutters for use in the break out. He did not believe, however, that the plan would succeed. He was nevertheless convicted of conspiracy.

It is not clear if it is possible to have a conspiracy where no one intends the full crime to be committed: presumably not. Intention to play a role in the conspiracy is not enough if the defendant plans on using their role to frustrate the offence.

For example, in R v McPhillips (1990) 6 BNIL a bomb-maker conspired to commit murder with others, but timed the bomb to explode at a time when he intended to give a warning to enable the venue to be cleared out. He was not guilty of conspiracy to commit murder, even though he played his role by making the bomb.

There can still be a conspiracy if the defendant only has conditional intent, such as where the parties agree to rob a house only if the owner is not home: R v Mills (1963) 47 Cr App R 49; R v Saik [2006] UKHL 18.

There is an exception to this rule if the commission of the offence is completely incidental to the purpose of the agreement: R v Reed [198] Crim LR 819. For example, if D1 and D2 agree to meet at a restaurant in an hour, and this will necessarily involve speeding if the traffic is bad, their agreement is not a conspiracy to speed.

Common Law Conspiracies

Some specific common law conspiracy offences have survived the passing of the Criminal Law Act 1977, such as:

Conspiracy to defraud is committed where two or more persons agree to dishonestly deprive a person of something which is his or which he is or may be entitled (Scott v Metropolitan Police Commissioner [1975] AC 819) or to dishonestly deceive a person into acting contrary to their public duty: R v Evans [2014] 1 WLR 2817.

The House of Lords has stated that conspiracy to corrupt public morals is an offence even where the actual conduct (if completed) is not itself a criminal offence: Shaw v DPP [1962] AC 220. This is a highly controversial offence and its exact scope is unclear.


Encouragement & Assistance

Sections 44-46 of the Serious Crime Act 2007 creates three separate offences of encouraging or assisting an offence. Some offences cannot be criminally encouraged or assisted, such as conspiracy: Schedule 3, para 3.

Section 44: Intentional Encouragement & Assistance

The actus reus of the s 44 offence is doing an act capable of encouraging or assisting an offence: s 44(1)(a).

The mens rea of the s 44 offence is intention to do the relevant act and intention to encourage or assist the commission of the offence: s 44(1)(b).

What is an Act Capable of Encouraging or Assisting?

Any act, course of conduct or unreasonable failure to discharge a duty can suffice, including threatening or putting pressure on someone to commit the offence or taking steps to make a criminal prosecution for the offence less likely: Serious Crime Act 2007, s 65, s 67. Arranging for a third-party to do the encouraging or assisting act also counts: s 66.

There is no requirement that the defendant’s contribution actually encourage or assist any offence. This means that it is possible to commit the s 44 offence even if the intended recipient of the encouragement or assistance is unaware of it.

Intention to Assist or Encourage
Spiral Staircase

Then defendant’s intention should not be inferred purely from the fact that encouragement or assistance was a foreseeable consequence: s 44(2). Foreseeability can be relevant, however.

To show that the defendant intended to encourage or assist the offence, it is sufficient to prove that he intended to encourage or assist the doing of an act or omission which (if carried out) would amount to the commission of that offence: s 47(2).

To determine if the act is one which would amount to the commission of an offence if carried out (for both the s 44 offence and the ss 45-46 offences), the following principles apply:

If the relevant offence is not one of strict liability, the prosecution must either prove that (1) the defendant believed that or was reckless as to whether the act would be done with the necessary mens rea, or (2) that the defendant would have the necessary mens rea if he performed the act himself (assuming he was capable): Serious Crime Act 2007, s 47(5)(a).

If the relevant offence requires proof of particular circumstances or consequences, the prosecution must prove either (1) that the defendant believed that those consequences or circumstances would exist if the act were done, or (2) the defendant was reckless as to whether they would exist: Serious Crime Act 2007, s 47(5)(b).

Section 45: Encouragement & Assistance With Belief

The actus reus of the s 45 offence is doing an act capable of encouraging or assisting an offence: s 45(1)(a).

The mens rea of the s 45 offence is established if the defendant intends to do the relevant act, believes that the offence will be committed and believes his act will encourage or assist the commission of the offence: s 45(1)(b).

Then defendant’s beliefs should not be inferred purely from the fact that encouragement or assistance was a foreseeable consequence: s 45(2). Foreseeability can be relevant, however.

To show that the defendant believed that an offence would be committed and his acts would encourage or assist, it is sufficient to prove that he believed that an act or omission would be done which would amount to the commission of that offence and that his act would assist or encourage: s 47(3).

Section 46: Encouragement & Assistance With Belief (Multiple Possible Offences)

The actus reus of the s 46 offence is doing an act capable of encouraging or assisting one or more of a number of offences: s 46(1)(a).

The mens rea of the s 46 offence is established if the defendant intends to do the relevant act, believes that one of those offences will be committed (without knowing which) and believes his act will encourage or assist the commission one or more of the offence: s 46(1)(b).

When showing that the defendant believed that one or more of a number of offences would be committed and that his act would encourage or assist the commission of one or more of them, it is enough to show that he believed that one or more of a number of acts would be done which would amount to the commission of one or more of those offences and that his act would encourage or assist the doing of one or more of those acts.

Defences & Limitations

The defendant has a defence if he can show that ‘knew certain circumstances existed’ or reasonably believed they existed and ‘that it was reasonable for him to act as he did in those circumstances’: Serious Crime Act 2007, s 50. Relevant factors include the seriousness of the offence and any authority or purpose the defendant has.

The intended victim of the offence cannot be convicted of encouragement or assistance: Serious Crime Act 2007, s 51. A person is only the intended victim if the offence is specifically designed to protect the class of people they belong to.

The section 44 offence does not apply to the offence of encouraging or assisting suicide under the Suicide Act 1961: Serious Crime Act 2007, s 51A.


Inchoate Liability & Impossible Crimes

Impossibility in Attempts

Section 1(2) of the Criminal Attempts Act 1981 states that the defendant may be guilty of an attempt ‘even though the facts are such that the commission of the offence is impossible.’

This only applies if external factual circumstances make the crime impossible. Legal circumstances do not count – such as where the defendant attempts to commit something he believes is a crime but actually is not.

Impossibility in Conspiracy

Section 1(1)(b) of the Criminal Law Act 1977 provides that it is possible to commit conspiracy even if facts exist which make it impossible to commit the offence agreed on (or any other offence). As above, this only applies where external facts make the crime impossible. Impossibility is a defence to common law conspiracy, by contrast: DPP v Nock [1978] AC 979.

Impossibility in Encouragement & Assistance

The Serious Crime Act 2007 does not contain a provision on whether it is an offence to assist or encourage an impossible offence. It is likely that this means that impossibility is not a defence in these circumstances. However, impossibility is likely relevant where the defendant does not realise that it is impossible for his actions to assist or encourage, since in these circumstances he is not doing an act ‘capable of’ assisting or encouraged.