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Inchoate Offences

D hasn't committed a substantive crime but:
- made an attempt to commit a crime
- entered a conspiracy with at least one other person to commit a crime
- assisted or encouraged another to commit a crime


Definition of inchoate""

At an early stage. Where the offences are incomplete but there is still blame worthy conduct


Preliminary points

are relational, not crimes in own right , the crime charged (except common law conspiracy), one which refers to the relevant consummated crime.
They can be accompanied by a lesser offence e.g. attempted murder and GBH


Section 1(1) Criminal Attempts Act 1981

Attempting to commit an offence:

(1)If, WITH INTENT TO COMMIT AN OFFENCE to which this section applies, a person does an act which is MORE THAN MERELY PREPRATORY to the commission of the offence, he is guilty of attempting to commit the offence.


Actus reus of attempt

- >an act which is more than merely preparatory to the commission of the offence
->The judge decides whether there is enough evidence for a jury to decide whether such an act occurred. no statutory provision only Jury Q- Cambelll (1991)


Cambell (1991)

?About robbery: Police apprehended D as he approached door of post office , found him carrying imitation firearm & threatening note Conviction quashed by CA as he had not gained a place that put him in a position the commit the offence


Definition of merely preparatory
Gullefer (1990) test

Attempt begins when all the preparatory acts have finished and D is about to embark on the crime.
per Lord Lane


o R v Jones [1990]

D bought a gun, shortened barrel, put on disguise & then jumped into back seat of rivals car. Pointed loaded gun at rival & said ?you are not going to like this?, rival grabbed gun. CA: dismissed argument that D yet to pull trigger, so act was merely preparatory. This was more akin to a ?last act? test. Attempted murder the minute D got in car.


Geddes (1996) test

Does evidence show D has actually tried to commit the offence in question, or that he has only got himself equipped, or in a position to do so. (Geddes yet to speak to or confront any pupil at the school.) Despite rucksack with knife & rope and his loitering.


Tosti and White (1997),
Both of these cases have followed the test in Geddes.?

Conviction for attempted burglary was upheld. D's seen crouching by the door of the barn, examining the padlock. They're caught at that moment. D?s car nearby & cutting equipment concealed in a hedge. CA: D had done an act showing he tried to commit the offence, rather than putting him in a position to do so.


Is proximity to the intended victim or property the distinction between merely prepatory and attemp>

Based on Geddes, Totsi and Cambell it would seem so.


Mens rea of attempt


Decision to bring about ? the commission of the offence ? no matter whether the accused desired that consequence or not?- Mohan [1976]
o Follows common law definition Woollin [1999]
o Can be conditional intent (A-G?s Ref No 1 and 2 of 1979 (1980)


Whybrow (1951)

Although in murder the mens rea is either intent to kill OR intent to commit GBH, in attempted murder ONLY intent to kill will suffice.


Recklessness ?

o Cannot be reckless as to the consequences;
o Circumstance elements fault will be the same as completed offence(e.g. rape and aggravated arson) (Khan, and others 1990; A-G?s Ref No 3. of 1992 (1994))


Attorney General's Reference (No 3 of 1979)

There were issues around charging attempted theft as many thieves are opportunists who don't know what they intend to steal.
This case solved this by charging attempt to steal some or all of the contents" of the handbag."


Attorney-General's Reference (No 3 of 1992)

It is possible to obtain a conviction of attempted" whatever if some of the elements of the actus reus were provided by recklessness."


S 1(2) CAA 1981: Impossibility

A person can be convicted of attempting to commit a crime even if the crime is impossible to commit physically. Shivpuri, R v (1987)
Also if the crime IS possible, but D's circumstances are inadequate (eg using plastic spoon to break in).


Jones (2007)

D was being messaged by a 12 year old girl, and attempted to entice her into sex. He arranged to meet up with her, and found out she was an undercover policewoman. Argued that as she was overage, it was impossible and no crime was committed. This was not allowed and he was convicted.


Section 1(4) Criminal Attempts Act 1981

Excludes attempts to commit the following:
- conspiracy
- aiding, abetting, counselling or procuring the commission of an offence


What can you not attempt?

?> Omissions? s1(1) CAA states ?a person who DOES AN ACT' must be act.
-> Section 6(4) Criminal Law Act 1967
-> Legal impossibility-R v Taaffe [1983] thought smuggling foreign currency =crime. It isn?t. So not guilty


Attempt to commit a crime that cannot be committed intentionally?

No Eg. Manslaughter ? Creamer [1966](involuntary)
-Bruzas [1972] AR (voluntary)
?S 1(4) CAA 1981 ? cannot attempt to conspire to commit a crime /Cannot attempt to attempt a crime
? R v Kenning [2008] EWCA Crim 1534 ? cannot attempt to aid, abet, counsel or procure the commission of an offence


Defence of Withdrawal?

If the defendant has done an act that is more than merely prepatory and changes his mind? This is not a defence.
Toothill [1998] Crim LR 876


Justification for penalizing attempts at crimes:

HARM PREVENTION: penalizing attempts allows pre-emptive action before the harm occurs. Converesly just because it leads to harm does not mean it should be punishable.


Justification for penalizing attempts at crimes:

RETRIBUTIVISM: A person who tries to cause a prohibited harm and fails is as morally culpable as a person who succeeds. Difficult because it starts to venture on punishing evil thoughts.


Law Commission Conspiracy and Attempts" 2007"

- the present offence of attempt should be abolished and replaced by:
+ a new attempt offence limited to where D reaches the last acts needed to commit the act
+ a new offence of criminal preparation



agreement between two or more parties, usually to commit a crime. Common Law conspiracy (an unlawful act not necessarily a crime.g. a tort)
-Kamara v DPP (1974) AC 104


Statutory conspiracy ( a crime)- Criminal Law act 1977

? ?NB Section 5(1) CLA 1977 and common law conspiracies:
? ?Section 5(2) Fraud
? ?Section 5(3) Outraging public decency
? ?Section 5(3) Corrupting public morals


Guilty of Conspiracy if :

?if a person agrees with any other person or persons 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 parties to the agreement, or
?(b) would do so but for the existence of facts which render the commission of the offence or any offences impossible


Actus Reus

a.The agreement must be communicated: Scott
b.There must be at least one other party: Ardalan
c.There must be agreement with decisions: Goddard & Fallick
d. Final details are unnecessary: Griffiths
e. Beyond negotiation (R v Barnard)


The proposed plan must necessarily involve the commission of a criminal offence:

a. Conditional agreements are still conspiracies: AG?s Ref No. 4 of 2003
b. Impossibility is irrelevant ? D will be judged on facts as they believe them to be: S1(1)(b)


Cannot conspire with just anyone
S2(2) CLA 1977, Exemptions:
if the only other person with whom he agrees are (both initially and at all times during the currency of the agreement) ... :

(a) ?his spouse or civil partner;-if 3rd conspirator in addition couple; they are all liable for conspiracy.
(b) ?a person under the age of criminal responsibility;
(c) ?an intended victim of that offence or each of those offences?


What if D conspires with someone who has a defence?

What if the co-conspirator cannot be discovered?

Doesn?t matter if there is a defence that can be raised against one of the parties they will both still be charged with conspiracy.
o It won?t hinder a charge as long as there is enough evidence


Mens Rea

-> The parties must have knowledge of the facts and circumstances
->The parties must intend for the plan to be carried out:


Party must know, intend or believe: Suspicion is not enough
- due to remoteness principle: the further away offence becomes from actual infliction of harm. The higher the fault needed to justify criminilization.

R v Saik [2006] ? money laundering business in London, he admitted that he suspected the money was laundered, but is suspicion enough to be conspiracy. Upon appeal to HOL it was held he suspicion was not enough.


Intending the Plan to be Carried Out

Anderson (1986)
*R v Siracusa (1990)
Yip Chiu Cheng (1995)

*Yip Chiu Cheng (1995)- departed from anderson, prosecutro must establish that each alleged conspirator intended the agreement to be carried out.(privy C dec)
*R v Siracusa (1990) Drugs case, D and others had agreed to import cannabis over a period of time. Inserting it into pieces of furniture in order to do so. CA: reinterpreted Anderson to mean: apassive conspirator who concursin the activities of the person(s) carrying out the crime w/o becoming involved himself is guilty of conspiracy. *Anderson (1986):HOL: remains high authority- person does not have to intend the agreement to be carried out to be guilty of conspiracy. Also D is guilty of conspiracy if it is established that D intended to play some part in the agreed course of conduct.


Mistaken belief?

the cannabis turned out to be spinach? You are still judged on intended consequence so you are still liable.


Secret Intent? If one person has a slightly different plan or intent it affects the quality of the agreement.

A) a more serious crime ? it is still a conspiracy
B) a less serious crime/no crime at all- it will not be sufficient as the d with the less serious intent will not have the necessary mens rea.


D does not have to intend to play an active part ? No, passive participation does not hinder a conspiracy charge.
Can be used to combat not intending full offence.

R v Siracusa (1989) ?Participation in a conspiracy is infinitely variable, it can be active or passive?intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity?.


Commentary on conspiracies: Ashworth

argues that conspiracies are dangerous because of the nature of group behaviour making individuals afraid to withdraw from conspiracies.
- rarely prevents harm as most people conspire in secret.


Section 44-46 Serious Crime Act 2007

Three new offences of doing an act capable of encouraging or assiting an offence.


Section 44 Serious Crime Act 2007



Section 45 Serious Crime Act 2007

believing it will be committed and believing that the act will encourage or assist


Section 46 Serious Crime Act 2007

One or more offences, believing that one or more of them will be committed and believing that the act will encourage or assist


Blackshaw; Sutcliffe (2011)

Created facebook groups to incite 2011 riots. Both were open to the public and had attendees. Both sites were shut down, and they were charged with s46 and s44 respectively.


Actus reus of s44 and 45



Actus reus of s46




Doing an act includes failing to take reasonable steps to discharge a duty"."


Capable of encouraging or assisting

No definition of 'capable of'
doesn't matter if:
- it makes E commit an offence
- or if E is even aware of D's act.
-Need not be substantial.


Mens rea of s44

- (1) D must INTEND to encourage or assist commission of the offence
- (2) D is not to be taken to have the necessary intent merely because such encouragement or assistance was a foreseeable consequence of the act"


Mens rea of s45

D must believe BOTH:
- that the offence will be committed
- that his act would encourage or assist its commission
- NOT necessary to think the act would make E break the law, enough that it would make E do an act that would amount to a commission of the offence


Mens rea of s46

- D believes that one or more of those offences will be committed (though no belief as to which)
- D's act will encourage and assist the commission of one or more
- NOT necessary to think the act would make E break the law, enough that it would make E d


Section 47(5)(b)(i)

Applies to all 3 offences.
States that where the act(s) that D is assisting or encouraging E to commit requires fault" for it to equal a criminal offence (eg NOT strict liability offence) then D must believe that it would be done with fault (via recklessness or whatever)."


Section 47(5)(b)(ii)

Applies to all 3 offences.
States that where the act(s) that D is assisting or encouraging E to commit requires proof of particular circumstances or consequences" for it to equal a criminal offence then D must believe that it would be done that way (via recklessness or whatever)."


Section 47(8)

(8)Reference in this section to the doing of an act includes reference to?
(a)a failure to act;
(b)the continuation of an act that has already begun;
(c)an attempt to do an act (except an act amounting to the commission of the offence of attempting to commit another offence).


DEFINING BELIEF- no statutory or common law def.

Omerod and Fortson Serious Crime Act 2007: the Part 2 Offences" (2009)"

Belief constitutes a state of subjective awareness short of knowledge, but greater than mere suspicion"


Definition of Encouragement

Similar to incitement

? Invicta Plastics Ltd v Clare (1976) 120 SJ 62; -does not have to be explicit, can be implied through circumstances.


Section 50

Defence of acting reasonably

(1)A person is not guilty of an offence under this Part if he proves?
(a)that he knew certain circumstances existed; and
(b)that it was reasonable for him to act as he did in those circumstances.
(2)A person is not guilty of an offence under this Part if he proves?
(a)that he believed certain circumstances to exist;
(b)that his belief was reasonable; and
(c)that it was reasonable for him to act as he did in the circumstances as he believed them to be.
(3)Factors to be considered in determining whether it was reasonable for a person to act as he did include?
(a)the seriousness of the anticipated offence (or, in the case of an offence under section 46, the offences specified in the indictment);
(b)any purpose for which he claims to have been acting;
(c)any authority by which he claims to have been acting.


Section 51
Defence of being a victim

R v Tyrell [1894] ?cannot be held to encourage or assist and offence as you cant convict the protected class.

Protective offences: victims not liable
(1)In the case of protective offences, a person does not commit an offence under this Part by reference to such an offence if?
(a)he falls within the protected category; and
(b)he is the person in respect of whom the protective offence was committed or would have been if it had been committed.
(2)?Protective offence? means an offence that exists (wholly or in part) for the protection of a particular category of persons (?the protected category?).



? Section 49(1) ? no defence if no offence
? Section 47(2) ? no defence if D did not know the conduct was illegal


Is impossibility a defence to assisting or encouraging a crime?

Reading the act literally, no it is not. This would also fit well with the law on conspiracy. However the case of Fitzmaurice goes against this.


Fitzmaurice (1983)

Under the old law of incitement, impossibility was a defence. This should allow someone to argue for it if it came up.



- complex & convoluted - tortuously difficult
- containing some of the worst criminal provisions to fall from Parliament in recent years
- an interpretative nightmare and a prosecutors dream


Spencer and Virgo Encouraging and assisting crime: legislate in haste, repent at leisure" (2008)"

- new provisions are complicated and unintelligible
- over-detailed, convoluted and unreadable
- anyone who can make sense on s47(8)(c) deserves a prize


Sadique & Hussain (2011)

Courts rejected that the Serious Crime Act 2007 s46 was so vague and uncertain that it is contrary to art 7 ECHR.


General evaluation of the Serious Crime Act 2007

- Most academics agree the new offences are unnecessary
- The old law of incitement was simple, well established and understood
- All that was needed was the addition of facilitation""


Omerod and Fortson "Serious Crime Act 2007: the Part 2 Offences" (2009)

criticism - complex & convoluted - tortuously difficult
- containing some of the worst criminal provisions to fall from Parliament in recent years
- an interpretative nightmare and a prosecutors dream