Inchoate offences

• Introduction
• Assisting or Encouraging Crime
  • The offences
• Incitement
• Attempting to commit an offence
• Recklessness
• Statutory Restrictions
• Attempting the Impossible
• Attempt: Special Verdicts
• Conspiracy
• Qualified Agreement
• Statutory Conspiracy
• Common Law Conspiracies
• Conspiracy and Substantive Offences
• Conspiracy to Commit Offences outside England and Wales
• Evidential Considerations
• Drafting Charges and Indictments
• Exemptions for liability
• Sentence

Introduction

There are instances where a substantive offence may not have been completed but nevertheless an offence of a different kind has been committed because of the actions or agreements in preparation for the substantive offence. These are known as inchoate offences.

Assisting or Encouraging Crime

Part 2 of the Serious Crime Act 2007 creates, at sections 44 to 46, three inchoate offences of intentionally encouraging or assisting an offence; encouraging or assisting an offence believing it will be committed; and encouraging or assisting offences believing one or more will be committed.

These offences replace the common law offence of incitement for all offences committed after 1 October 2008. They allow people who assist another to commit an offence to be prosecuted regardless of whether the underlying substantive offence is actually committed or attempted.

Section 50 of the 2007 Act provides a defence to the offences in Part 2 where the encouragement or assistance is considered to be reasonable in the circumstances the person knew to exist or he reasonably believed to exist.

Section 51 of the 2007 Act provides a limitation on liability to the offences in Part 2 where the offence encouraged or assisted was created in order to protect a category of people and the person doing the encouraging or assisting falls into that category and was the person in respect of whom the offence was or would have been committed. This would cover for example a child who encourages or assists a sexual offence of which he or she was to have been the victim.

The offences

Sections 45 and 46 create offences of encouraging or assisting an offence or offences believing it, or one or more of them, will be committed. In determining 'belief' in Sections 45 and 46, prosecutors should refer to the case law on handling stolen goods, as the test is similar.

Belief is a state of mind which is more than suspicious, the word ‘belief’ is a word of ordinary usage and does not require any elaboration Treacy v DPP (1971) 55 Cr.App.R. 113. If elaboration is required, a direction approved in R v Moys (1984) 79 Cr.App.R.72 should be given, confirming that suspicion, in addition with the fact that the defendant shut his eyes to the circumstances, is not enough, although such matters were relevant to the jury’s determination of the defendant’s knowledge or belief.

Though Section 46 allows for the belief by the defendant that one or more offence may be committed, where offences with a different maximum sentence are pleaded in a Section 46 count, separate counts should be included on the indictment for each variation so the sentencing judge is clear as to the basis for conviction under Section 46 - R v S & H [2011] EWCA Crim 2872.

Section 48(3) ensures that a person can only be found guilty of the offence under Section 46 if the offence or offences that the jury find the defendant believed would be committed are specified in the indictment.

Section 53 should be read in conjunction with Schedule 4 of the 2007 Act. In broad terms, Schedule 4 provides for extra-territorial jurisdiction where the defendant does an act capable of assisting or encouraging a crime but does not know or believe that the substantive offence will occur wholly or partly in England and Wales. The act itself may be done inside or outside England and Wales. In relation to offences to which Schedule 4 applies, Section 53 provides that the prior consent of the Attorney General must be obtained before initiating a prosecution.

The general jurisdictional rules of Schedule 4 are without prejudice to any specific jurisdictional rules which already exist for certain offences. For example, offences under the Sexual Offences Act 2003 already have their own extra-territorial rules. Where this is the case, extra-territoriality is governed by the provisions of the statute which creates the offence, not by Schedule 4 of the 2007 Act.

The Ministry of Justice Circular No. 2008/04 covers Part 2 of the Serious Crime Act 2007 providing an overview of the offences and an explanation as to the implementation of sections 44 to 67 of the Act.

Incitement

Section 59 of the Serious Crime Act 2007 abolished the common law offence of incitement, with effect from 1 October 2008.

For offences committed before that date, incitement occurs when a person seeks to persuade another to commit a criminal offence. A person is guilty of incitement to commit an offence or offences if:

• They incite another to do or cause to be done an act or acts which, if done, will involve the commission of an offence or offences by the other; and
• They intend or believe that the other, if he acts as incited, shall or will do so with the fault required for the offence(s) R v Claydon [2006] 1 Cr. App. R. 20.

It is not a defence to a charge of incitement that the other person, for whatever reason, does not commit the offence, or commits a different offence to that incited.

The prosecution must show that the person accused of incitement intended or believed that the person incited would, if acted as incited to do so, do so with the mens rea appropriate to the offence.

Incitement is usually a common law offence but there are some instances where statute has created the offence: e.g., Section 19 Misuse of Drugs Act 1971.

Where a person has been charged with incitement, the venue for trial is the same as for the offence incited. Therefore, incitement to commit a summary offence is only triable summarily and incitement to commit an indictable only offence may only be tried on indictment.

Conspiracy to commit summary offences may only be instituted with the consent of the DPP.  If a prosecution for a substantive offence may only be brought by or with leave of the DPP or Attorney General, this is also required in respect of a charge of conspiracy to commit it.  Where the time-limit for prosecuting a summary offence has expired, s. 4(4) Criminal Law Act provides that a prosecution for conspiracy is also barred, but this rule applies only where the substantive offence has been committed.

Attempting to commit an offence

A person is guilty of attempting to commit an offence under the Criminal Attempts Act 1981 (CAA 1981), Section 1(1) if they do an act, which is more than preparatory to the commission of the offence, with the intention of committing an offence.

In each case it is a question of fact whether the accused has gone sufficiently far towards the full offence to have committed the act of the attempt. If the accused has passed the preparatory stage, the offence of attempt has been committed and it is no defence that they then withdrew from committing the completed offence.

When examining if the accused has passed the ‘preparatory stage,’ the approach is “to look first at the natural meaning of the statutory words” - R. v. Jones, 91 Cr.App.R. 351, CA, applying R. v. Gullefer, 91 Cr.App.R. 356, CA.  It is important to consider whether the defendant had actually tried to commit the act in question or whether he had only got ready, or put himself in a position, or equipped himself to do so: R. v. Geddes [1996] Crim.L.R. 894, CA.

The case of R v Qadir and Khan [1997] 9 Archbold News 1, CA states the following: “Attempt begins at the moment when the defendant embarks upon the crime proper, as opposed to taking steps rightly regarded as merely preparatory.”

An attempt is an offence of specific intent. It requires an intention to commit an offence to which Section 1(4) Criminal Attempts Act 1981 applies.

Although summary offences cannot be the object of a criminal attempt under Section 1 of the CAA 1981, provisions creating summary offences sometimes create matching offences of attempt.  Sections 4 and 5 of the Road Traffic Act 1988, for example, create summary offences of driving or attempting to drive when unfit through drink or drugs or when over the prescribed limit for alcohol.

The CAA 1981, Section 3, provides that 'attempts under special statutory provisions' shall be governed by rules which mirror those in Sections 1(1) to (3).

Recklessness

There are certain offences where recklessness is a sufficient mental state in order to commit the full offence. However, for an attempt, the prosecution must prove that the defendant had the intent to commit the offence.

For example, although the full offence of causing criminal damage to property can be committed either intentionally or recklessly, it will only be proper to charge a person with attempting to cause criminal damage with intent to damage property and not simply attempting to cause criminal damage by being reckless.

However, where recklessness as to other circumstances may suffice for the full offence, recklessness may also suffice for the attempt. For example, in Attorney General's Reference No. 3 of 1992 (1994) 2 All ER 121, on a charge of attempted aggravated arson, contrary to section 1(2) Criminal Damage Act 1971, it was sufficient for the prosecution to establish a specific intent to cause damage by fire and that the defendant was reckless as to whether life would thereby be endangered. It was not necessary to prove that the defendant intended that the lives of others would be endangered by the damage.

The case of R. v. Khan, 91 Cr.App.R. 29, CA, considered the application of Section 1(1) of the Criminal Attempts Act to the element of recklessness in the then definition of rape. It was held that no question of attempting to achieve a reckless state of mind arises, as the attempt relates to the physical activity. The mental state, in relation to lack of consent, is the same as for the full offence.

Statutory Restrictions

Under Section 1(4) of the CAA 1981, there are a number of criminal offences that cannot be the subject of an attempt. These are:

• Conspiracy at common law or under Section 1 of the Criminal Law Act 1977 or any other enactment;
• Aiding, abetting, counselling, procuring or suborning the commission of an offence offences under Section 4(1) (assisting offenders) or 5(1) (accepting or agreeing to accept consideration for not disclosing information about an arrestable offence) of the Criminal Law Act 1967

Although it is not possible to attempt to aid and abet, it is possible to charge the aiding and abetting of an attempt.

Attempting the Impossible

A person may fail to carry through the offence because it is not possible for them to do so. It is necessary to ascertain why the attempt has not succeeded in order to determine if they can still be prosecuted for attempting to commit an offence. There is a crucial distinction between what is factually impossible and what is legally impossible.

Even if it may not be possible to commit the full offence because the factual basis is not present, if the facts had been as the defendant believed them to be, they can be charged with attempting to commit the offence in question (see R v Shivpuri [1986] 2 All ER 334).

The House of Lords in Shivpuri made it clear that the only kind of impossibility which is relevant to liability is true legal impossibility. Even if the facts were such as the accused believed them to be, then the defendant would still not be committing any offence, having made a mistake about what the law was. If the defendant for example, believed it was an offence to import snuff and does import it, they do not commit the offence of attempting to supply a controlled drug, as the importation of snuff is not a crime.

Attempt: Special Verdicts

If a defendant is charged with an attempt and the evidence goes to show that they in fact completed the offence, they may still nevertheless be found guilty of an attempt: Criminal Law Act 1967, Section 6(4) for trials on indictment. At common law for summary trials - Webley v Buxton [1977] 2 All E.R. 595. The defendant cannot also be found guilty of the completed offence.

Conversely, if a person is charged with the completed offence, but can only be shown to have been guilty of an attempt, if being tried on indictment, there can be a conviction by virtue of Sections 6(3) and (4) Criminal Law Act 1967.

If there is a summary trial in such circumstances, the magistrates cannot convict unless there is an alternative charge of attempting to commit the offence.

Prosecutors should note that Section 4(2) of the Criminal Attempts Act 1981 allows such additional information to be tried at the same time without the accused's consent.

The jury cannot return a guilty verdict under Section 6(3) of the Criminal Law Act 1967 unless they have found the defendant not guilty of the offence specifically charged: R. v. Collison, 71 Cr.App.R. 249, CA; and see R. v. Griffiths [1998] Crim.L.R. 348, CA.  Where this gives rise to difficulty, because the jury are unable to agree in respect of the offence charged, an alternative count may be added to the indictment if it causes no injustice to the defendant: Collison, above.

Conspiracy

A conspiracy is an agreement where two or more people agree to carry their criminal scheme into effect, the very agreement is the criminal act itself: Mulcahy v. The Queen (1868) L.R. 3 H.L. 306; R v Warburton (1870) L.R. 1 C.C.R. 274; R. v. Tibbits and Windust [1902] 1 K.B. 77 at 89; R. v. Meyrick and Ribuffi, 21 Cr.App.R. 94, CCA.

Nothing need be done in pursuit of the agreement: O’Connell v. R. (1844) 5 St.Tr.(N.S.) 1.

Repentance, lack of opportunity and failure are all immaterial: R. v. Aspinall (1876) 2 Q.B.D. 48.

It is the course of conduct agreed upon which is critical; if that course involves some act by an innocent party, the fact that he does not perform it and thus prevents the commission of the substantive offence, does not absolve the parties to the agreement from liability: R. v. Bolton, 94 Cr.App.R. 74, CA.

The agreement cannot be a mere mental operation; it must involve spoken or written words or other overt acts. If the defendant repents and withdraws immediately after the agreement has been concluded, they are still guilty of the offence. Withdrawal from it goes to mitigation only: R. v. Gortat and Pirog [1973] Crim.L.R. 648.

There must be an agreement to commit the criminal offence, but the motives of the conspirators are irrelevant. For example, in Yip Chiu-Cheung v The Queen (1994) 2 All E.R. 924, the fact that one conspirator was an undercover police officer who only entered the conspiracy to catch drug dealers did not prevent the offence of conspiracy from being committed.

Qualified Agreement

An agreement may amount to a conspiracy, even if it contains some reservation, express or implied. What is important is the form of the reservation.  If the matters left outstanding or reserved are of a substantial nature, the arrangement may amount only to negotiations and thus fall short of being a conspiracy: R. v. Mills [1963] 1 Q.B. 522, 47 Cr.App.R. 49, CCA; R. v. O’Brien (P.J.), 59 Cr.App.R. 222, CA.

Statutory Conspiracy

Section 1(1) of the Criminal Law Act 1977 states: “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 will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.”.

This offence is triable only on indictment, even if the parties agreed to commit a criminal offence triable only summarily. It is not limited to agreements to commit a statutory crime (agreements to commit the common law offence of murder are charged under this offence).

Common Law Conspiracies

It is an offence triable only on indictment to agree:

• To defraud, whether or not the fraud amounts to a crime or even a tort;
• To do an act which tends to corrupt public morals or outrage public decency, whether or not the act amounts to a crime

An agreement to commit a crime involving fraud or dishonesty is both a statutory conspiracy and a conspiracy to defraud. Prosecutors therefore have a choice, which should be exercised in accordance with the guidance in Section 6 of the Code ('Selection of charges').

Conspiracy and Substantive Offences

The Criminal Practice Direction II (Preliminary proceedings) at  10A, para. 4 states that where an indictment contains counts alleging substantive offences and a related conspiracy count, the prosecution must justify the joinder or be required to elect to proceed on the substantive or on the conspiracy count.

Where substantive counts meet the justice of the case, a conspiracy count will rarely need to be added. However, it may be added where the substantive counts do not represent the overall criminality of the defendant's actions.

One of the reasons care must be taken when deciding whether or not to charge conspiracy is the question of confiscation on conviction. For more information, refer to Legal Guidance on Proceeds of Crime - Confiscation and Ancillary Orders - Post POCA.

Conspiracy to Commit Offences outside England and Wales

A conspiracy may involve the doing of an act by one or more of the parties, or the happening of an event, in a place outside England and Wales which constitutes an offence in that other jurisdiction.

This situation is covered by Section 1A of the Criminal Law Act 1977. Section 1A has the following four conditions, which all must be met if the section is to apply:

1. The pursuit of the agreed course of conduct would at some stage involve an act by one or more of the parties or the happening of some other event intended to take place in a country or territory outside England and Wales.
2. The act or event constitutes an offence under the law in force in that country or territory.
3. That the agreement would fall within Section 1(1) as an agreement relating to the commission of an offence, but for the fact that the offence would not be an offence triable in England and Wales if committed in accordance with the parties’ intentions.
4. That a party to the agreement, or a party’s agent, did anything in England and Wales in relation to the agreement before its formation, or a party to the agreement became a party in England and Wales (by joining it either in person or through an agent) or a party to the agreement or a party’s agent, did or omitted anything in England or Wales in pursuance of the agreement

By virtue of Section 4(5) of the Criminal Law Act 1977, the prior consent of the Attorney General is required to prosecute offences to which section 1A applies.

In cases where parts of the offending occur in different jurisdictions, prosecutors need to determine whether Section 1A is applicable.

In R v Smith (Wallace Duncan) (No.4) [2004] EWCA Crim 631 [2004] QB 1418, the Court held that an English court has jurisdiction to try a "substantive offence, if substantial activities constituting [the] crime take place in England"; or "a substantial part of the crime was committed here". This approach "requires the crime to have a substantial connection with this jurisdiction". It should be noted that there is no single verbal formula that must be applied: it is a question of substance, not form. Also, this approach to jurisdiction in respect of substantive offences was held to be consistent with the approach already established for conspiracy.

For guidance regarding consent to prosecute please see Consent to Prosecute Legal Guidance.

Evidential Considerations

The rule that acts and statements of one party to a common purpose may be evidence against the other is particularly relevant to evidential considerations for those charged with conspiracy.

This rule permits the actions and admissions of one party, A, to be used in evidence against the other, B. It is thus an exception to the general rule that B is not to be prejudiced by the acts or statements of another.

In order for the acts or statements of A to be admissible against B, this rule requires:

• That the act or statement of A must be in the course and furtherance of the common purpose; and
• There must be evidence adduced of the existence of the conspiracy and the involvement of both A and B.

Evidence relating to acts or statements by A that were not in furtherance of the common purpose is not admissible against B simply because they have been charged with conspiracy. Similarly, a confession after arrest by A, in which they implicate B, is only evidence against A as the common purpose has finished.

Drafting charges and Indictments

When drafting charges or indictments for inchoate offences in which the relevant sentence is determined by the substantive offence (such as an attempt under the Criminal Attempts Act 1981 when it is the offence attempted that provides the sentence); the charge or indictment should refer to both the inchoate offence and the statutory provision that creates the substantive offence.

“It will assist judges and others, not least when it comes to identifying the relevant Sentencing Guideline, if the statement of offence, even in the case of a criminal attempt, in future identifies the substantive offence lying behind the attempt”. Reed, Bennett, Crisp & Others [2021] EWCA Crim 572

Paragraphs 85 -96 of the judgment in that case provide more guidance and by way of example the Court of Appeal commended the indictment in one of the cases before it in which the statement of offence read “ “Attempting to pay for the sexual services of a child, contrary to section 1(1) Criminal Attempts Act 1981 and section 47(1) of the Sexual Offences Act 2003.”

Exemptions for liability

Husband and wife are not guilty of conspiracy if they the only parties to the agreement.  The same is now true of civil partners.  A wife may conspire with her husband contrary to s.1 (1) of the Criminal Law Act 1977 if, knowing that her husband was involved with others in a conspiracy to commit an unlawful act, she agreed with him to join that conspiracy, notwithstanding that the only person with whom she concluded the agreement was her husband R v Chrastny 94 Cr.App.R. 283, CA.

Where a husband and wife are charged with conspiring with one another, the jury should be directed to acquit the husband and wife if they are not satisfied that there was another party to the conspiracy R v Lovick [1993] Crim.L.R 890, CA

The court in the case of R v Drew [2000] 1 Cr.App.R. 91, CA stated that it would be a misuse of language to say that a person to whom controlled drugs were supplied was a victim of the offence of unlawful supply.  He could still be charged with a conspiracy to supply drugs in respect of his agreement with the supplier.

Sentence

Conspiracy to commit an offence punishable by life imprisonment (or for which the penalty is at large) is itself punishable by life imprisonment. However, in cases of conspiracy to murder, a life sentence is only discretionary.

The cases of McNee [2008] 1 Cr App R (S) 24 (108) and Barot [2008] 1 Cr App R (S) 31 (156) illustrate the principles round sentencing for conspiracy to murder.

In other cases, the maximum term of imprisonment may not exceed that for the relevant offence, or for whichever of two or more relevant offences carries the highest maximum sentence. Where a relevant offence is not punishable by imprisonment, a conspiracy is punishable by a fine - s. 3(1)(b) of the Criminal Law Act 1977.

In Cooke [2017] EWCA Crim 1272, the Court of Appeal accepted that Sentencing Council guidelines in respect of the relevant offence must be taken into account when sentencing for conspiracy, and stated, 'a conspiracy rather than a substantive offence is alleged it will be important for a court to analyse carefully the position of an individual offender, if it is sentencing in those circumstances. Those involved in a conspiracy can play different roles or be involved in different ways and the court must be astute to avoid a one-size-fits-all approach to the guideline'.

A conspiracy involving the actual completion of multiple offences may result in a higher sentence than that indicated in guidelines for any one substantive offence Hanrahan [2017] EWCA Crim 1256, but cannot exceed the maximum for the most serious relevant offence.

In cases involving serious revenue fraud, it may, however, be proper to charge the alleged offenders with conspiracy to cheat the revenue (for which the maximum penalty is at large) rather than with conspiracy to commit individual offences under the Fraud Act 2006 (Dosanjh [2014] 1 WLR 1780).