Inchoate offences in English law

Attempts are governed by the Criminal Attempts Act 1981, which states that "if, with intent to commit an offence to which [the act applies], a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence".[4] A required element is intent, or mens rea. In R v Pearman,[5] the Court of Appeal of England and Wales confirmed that the definition of intent in the 1981 Act is the same as the definition in the common law.[6] The common law gives intention "its normal meaning: purpose or aim", with judges advised not to, in the majority of cases, attempt to complicate the definition.[7] Conditional intent – where somebody has an intent to commit a crime only in certain circumstances – has also been deemed acceptable for an indictment for attempting a crime.[8] In Attorney-General's Reference (Nos. 1 and 2 of 1979), the Court of Appeal explained that the intention to steal "anything that was worth stealing could form the basis of an attempt charge if the indictment was drafted carefully".[9] This was a procedural solution to a previous apparent contradiction, but the suggested drafting may not demonstrate sufficient proximity between the defendant's actions and what he was planning to steal.[10] A mens rea requirement is added to the attempt of crimes of strict liability (where there is no intent or merely objective recklessness), although the ruling in Attorney General's Reference (No. 3 of 1992) makes this less certain.[11]

Section 1(1) also provides that the actus reus must be "more than merely preparatory". In practice, academic Jonathan Herring notes that "there is no hard and fast rule about when an act may be more than merely preparatory", although there are several cases which give broad guidance.[9] In R v Geddes,[12] a man entered the toilets in a school in Brighton with a large knife, some rope and a roll of masking tape; it was alleged that he was intending to kidnap a pupil. The Court of Appeal confirmed that this was not enough for a conviction.[13] However, certain general rules have been laid down; if the defendant has committed the last act before completing his offence, it constitutes an attempt. This is not, however, necessary in all situations, as in R v Gullefer.[14] The actus reus of the full offence is also taken into account; in R v Toothill,[15] the defendant was charged with attempted burglary after trespassing into the victim's garden and knocking on their door. He was found guilty, because he had entered the property – the actus reus for burglary – and his actions were thus more than merely preparatory.[16] The wording "does an act" prevents liability for omissions, a distinction that the Law Commission has looked to remove, at least in the case of attempted murder.[17]

Certain things cannot be attempted. These include conspiracy, under section 1(4) of the 1981 Act, assisting a criminal, under section 4(1) of the Criminal Law Act 1967, aiding in the commission of an offence, or most summary offences, with the logic being that they are too minor for attempts to justify a criminal conviction.[18] A small number of separate statutory offences have been created to cover attempts concerning individual summary offences, in which case, usual attempt law and procedure applies.[19]

If someone is found guilty of an attempt, they are sentenced under section 4(1) of the 1981 Act. This provides that anyone who attempts to commit an offence will be punished with the same period in prison as if they had succeeded; since theft carries a maximum penalty of seven years in prison, for example, someone convicted of attempted theft would also find themselves sentenced to a maximum of seven years.[20]

The offences of "encouraging or assisting a crime" under the Serious Crime Act 2007 are inchoate offences.[21] In each case, the actus reus requirement is that the defendant carry out an act capable of "encouraging or assisting" the commission of another offence. An offence is committed under section 44, if this is done with intent to do the same; under section 45 if it is done "believing that the offence will be committed and that the act will encourage or assist its commission"; or under section 46 where there are multiple possible offences being encouraged or assisted, and at least one is foreseen.[22] There is no need for the defendant to have successfully communicated his thoughts to anyone else. Since this is very wide, the courts will have to narrow it by some criterion, probably by reference to the remoteness of the encouragement to the crime. Failing to act when under a duty to do so would also qualify.[23]

"Encouraging" is not defined in the statute and can be considered in the same way as the previous crime of incitement. It does not matter if the encouragement or assistance has no effect.[24] "Assisting" is likely to be considered similar to "aiding" in accessorial liability. Assistance can be provided indirectly, for example through a third person.[25]

Whereas incitement can only be committed when the defendant incites the principal offender, the crime of "encouraging or assisting" includes helping an accessory.[26] Whilst a section 44 offence can be committed in relation to other inchoate offences (including itself), sections 45 and 46 cannot. Crimes which are, in fact rather than law, impossible to commit yet – but will be – also fall under this offence.[27]

In terms of mens rea, any form of recklessness, including virtual certainty, is insufficient for an offence under Section 44, in part due to the existence of Section 45 and 46 which aid its interpretation. Offences under Sections 45 and 46 are only committed if the defendant believes that both the crime will be committed, and that the act will encourage or assist the offender: that they might do so is not enough.[28] However, it is also possible to commit these offences if the defendant commits an act capable of encouraging or assisting the commission of a crime, intending or believing that the principal offender would carry out the "act", where that may not in itself constitute a crime. However, it is necessary that the defendant intend or be reckless to any required circumstances or consequences – for example, that death was a result. Additionally, the prosecution must show that the defendant believed that (or was reckless to) whether the act would be done with the required mens rea, or that the defendant himself has the required mens rea for the offence.[29] These amount to very complex provisions.[30]

There is no defence of later withdrawing from the act; however, there is one of "acting reasonably" under Section 50. This takes two forms: either that the acts themselves were reasonable; or that the defendant reasonably believed in circumstances which did not exist and acted reasonably under those circumstances. The existence of this defence has been attacked by Andrew Simester and Bob Sullivan on the grounds it may be acting as a "sop" to counteract excess brevity in other sections of the act.[31] Victims are extended the "Tyrell" defence – that one cannot aid, abet, counsel or procure an offence against oneself – although exactly when a victim is protected can be unclear.[32]

The common law offence of inciting the commission of another offence was abolished on 1 October 2008,[33] except in relation to offences committed wholly or partly before that date.[34] However, the language of incitement is retained in other statutory offences, such as inciting a child under 13 to engage in sexual activity contrary to section 8 of the Sexual Offences Act 2003. The same rules are applied in these cases as the existing body of law on incitement.[35]

The Court of Appeal considers incitement to consist of a situation in which a defendant "incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences". Unlike attempts, incitement is a common law offence.[36][37] Incitement has a particularly broad actus reus; it has been interpreted to include "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity".[1] While it must include an act of incitement, this can be both express and implied.[1] For an offence to be committed, the incited act must be criminal in nature, and an offence not only for the person doing the incitement but the person incited. Some exceptions are made; under section 5(7) of the Criminal Law Act 1977, incitement to conspire is not an offence, and incitement to an aid or attempt are similarly not specifically given as criminal acts.[38] In terms of mens rea, the defendant must have intended the incited offence to be committed, and also be aware of the likely consequences.[39] It has been suggested that intent should not be necessary; if the defendant knew that his advice would be followed, and this would result in a crime, he should be found guilty.[40]

Statutory conspiracy consists of an agreement between two or more people to commit a criminal offence, under section 5(1) and (2) of the 1977 Act.[41] For statutory conspiracies, there must be three elements: an agreement, to pursue a course of conduct which involves the commission of a crime, where the parties to the agreement intended to commit the crime. Even if the parties later decide not to go through with the plan, since the actus reus is to reach an agreement, they can still be charged.[42] There are certain categories of agreement which cannot amount to a criminal conspiracy, however; an agreement between a husband and wife is not a conspiracy, under section 2(2)(a) of the 1977 Act, and neither is an agreement with a person under the age of criminal responsibility, or with the intended victim of the crime.[43]

There is no need, under Churchill v Walton,[44] to show that the conspirators knew that their proposed course of conduct amounted to a crime, but they must have intended the consequences; if two people conspire to put poison in the victim's tea, this is not a conspiracy to murder unless the poison was intended to kill the victim. The defendants will similarly not be found guilty if they are unaware that a crime will result; if two people agree to grow plants, unaware that the plants are illegal, they have not engaged in a conspiracy. On the other hand, if the two people believe the plants to be illegal even though they are not, they could be found guilty.[45]

Common law conspiracies, on the other hand, fall into two categories; "conspiracy to defraud" and "conspiracy to corrupt public morals". A third category which existed at the time of the 1977 Act, "conspiracy to outrage public decency", has now become a statutory offence.[46] Indeed, corrupting public morals may have become a statutory offence; the situation is unclear.[47] The standard definition of a conspiracy to defraud was provided by Lord Dilhorne in Scott v Metropolitan Police Commissioner,[48] when he said that

it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.[49]

Conspiracy to defraud therefore contains two key elements; that the conspiracy involved dishonesty, and that if the conspiracy was undertaken, the victim's property rights would be harmed. This does not require the defendants' actions to directly result in the fraud; in R v Hollinshead,[50] the House of Lords held that producing devices designed to alter electricity meter readings constituted conspiracy to defraud, even though the actual fraud would be carried out by members of the public rather than the conspirators. In two situations, it will not even be necessary for the actions to directly lead to any kind of financial loss for the victim; these are when the conspirators plan to deceive a person holding public office into acting counter to their duties, and when the conspirators know that their actions put the victim's property at risk, even if the risk never materialises.[51] Conspiracy to "corrupt public morals" has no definitive case law; it is unknown whether or not it is a substantive offence,[52] and Herring sees it as unlikely that conspirators will be prosecuted for this offence.[53]