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Inchoate offences

Principle

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.

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Guidance

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.

Sec 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.

Sec 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.

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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.

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 (please see R v S & H [2011] EWCA Crim 2872 for further details).

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

Sections 49(4) and 49(5) set out that a person who encourages and assists someone else to encourage and assist a third party to carry out an offence can only be guilty of the offence under section 44, which requires that they intend that the offence be committed. They cannot be convicted of an offence under either section 45 or 46, which require only that they believed that the offence would be committed.

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.

Further details of this rather technical and complex area of law may be found in Archbold 33-92 or Blackstones A6.1 and following paragraphs in both. 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.

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Incitement

Section 59 of the Serious Crime Act 2007 abolishes 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:

a. s/he incites 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
b. s/he intends or believes 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.

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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 s/he does an act which is more than preparatory to the commission of the offence with the intention of committing an offence.

The offence consists of both an act (actus reus) and a mental state (mens rea).

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

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.

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Recklessness

There are certain offences where recklessness is sufficient mens rea for 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 (see further Archbold 33-128).

A similar situation exists in relation to attempted rape: R v Khan [1990] 2 All ER 783, where recklessness as to whether or not the woman was consenting was held to be sufficient mens rea for the offence of attempted rape, provided the prosecution could prove the intent to have intercourse.

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;
  • aiding and abetting; and
  • assisting an offender or concealing an offence (Archbold 33-120).

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

It is not possible by virtue of section 1(4) to charge an attempt to commit a summary offence, unless the particular statute expressly makes it an offence. For example, attempting to drive with excess alcohol is an offence contrary to section 4(1) Road Traffic Act 1988.

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Attempting the Impossible

A person may fail to carry through the offence because it is not possible for her/him to do so. It is necessary to ascertain why the attempt has not succeeded in order to determine if s/he 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 (see further Archbold 33-129).

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, s/he 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, s/he does 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 s/he in fact completed the offence, s/he may still nevertheless be found guilty of an attempt: Criminal Law Act 1967, section 6(4) for trials on indictment (Archbold 4-455). At common law for summary trials, see 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.

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Conspiracy

The essential element of the crime of conspiracy is the agreement by two or more people to carry out a criminal act. Even if nothing is done in furtherance of the agreement, the offence of conspiracy is complete.

The actus reus is the agreement. This 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, s/he is still guilty of the offence.

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.

For the ingredients of conspiracy, see Archbold 33-1 to 33-20.

Statutory Conspiracy

Section 1(1) of the Criminal Law Act 1977 creates and defines the offence of statutory conspiracy (see Archbold 33-2). 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).

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Common Law Conspiracies

It is an offence triable only on indictment to agree:

a. to defraud, whether or not the fraud amounts to a crime or even a tort;
b. to do an act which tends to corrupt public morals or outrage public decency, whether or not the act amounts to a crime (see Archbold 33-34).

The 1977 Act has no part to play in the prosecution of such offences.

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').

See also: Attorney General's Guidance on the use of the common law of conspiracy to defraud, elsewhere in the Legal Guidance.

Conspiracy and Substantive Offences

The Consolidated Practice Direction IV.34.3 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.

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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 four conditions, which all must be met if the section is to apply.

The wording of section 1A was amended from 1 February 2010 so that it now includes conspiracies in England and Wales to commit offences in Scotland or Northern Ireland. 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.

When deciding whether AG's consent is required, prosecutors should consider the following matters:

  1. Identify the substantive offence(s) that would be committed if the agreement were carried out in accordance with the intentions of the parties.
  2. Are those offences, considered separately, triable here?  Jurisdiction is basically territorial.  But there are many statutory provisions that make extra territorial offences triable here.  (For instance, s.20 of the Misuse of Drugs Act 1971  makes it an offence if a person in the UK assists in or induces the commission in any place outside the UK of an offence punishable under the provisions of a corresponding law in force in that place.) Whether any such provisions apply needs to be checked in every case.  In a case where no such statutory provisions apply, it may be obvious whether the substantive offence is domestic and thus triable here.  If it is not obvious, then a helpful pointer is to ask whether, if the agreement were carried out in accordance with the parties' intentions, a substantial part of the activities that would constitute the substantive offence would take place here: R v Smith (Wallace Duncan) (No.4).
  3. A substantive offence that is triable here should be tried here as that substantive offence, if at all possible.
  4. If a substantive offence is triable here but, by reason of the complexity of the conduct or because no substantive offence is actually committed or for any other reason it is not practicable to try it as a substantive offence here, then a charge of conspiracy may be used. The charge may be under s.1 of the Criminal Law Act 1977, or in a case of conspiracy to defraud or to corrupt public morals or public decency, at common law: Criminal Law Act 1977 s.5(1)-(3).  Section 1A does not come into play because any substantive offence would be triable here.
  5. If the agreement, if carried out in accordance with the intentions of the parties, would result in the commission both of one or more offences triable here and one or more offences not triable here, then s.1A may be invoked. Whether the evidence relating to the substantive offence(s) not triable here should be led at the trial will depend on the facts of the case: is that evidence integral to, or in other words inseparable from, the evidence relating to the substantive offences that are triable here?  If the answer is yes, then the evidence can  be led, subject to usual safeguards such as s.78 of the Police and Criminal Evidence Act 1984.  If the answer is no, then prosecutors may either omit the evidence, or apply for AG's consent under s.1A, to charge the conspiracy covering all the substantive offences, both those triable here and those not triable here.

If there is doubt whether the substantive offence(s) that would be committed are triable here, then prosecutors should seek the AG's consent under s.1A.

The timely application for the Attorney General's consent is critical in conspiracy cases, which are often complex and require significant time for the Attorney  General's Office to review. Furthermore, prosecutors are advised to be alert to the implications of section 1A issues at an early stage of the investigation and as part of the overall prosecution strategy. Early discussions with other prosecution authorities, such as the Crown Office and Police Scotland, may be considered as part of such a strategy in the event that acts are prosecuted outside England and Wales.

Advice can be obtained from the Attorney General's Office in relation to procedure and the presenting of the application but advice cannot be given as to whether consent is actually required. For section 1A cases, a clear analysis of why consent is needed should accompany the application.

For further guidance on obtaining the consent of the Law Officers, prosecutors should refer to Consents to Prosecute, elsewhere in the Legal Guidance.

For further guidance on joint enterprise, prosecutors should refer to Joint Enterprise elsewhere in the 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 s/he implicates B, is only evidence against A as the common purpose has finished.

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