Inchoate offences — attempts, conspiracy, encouragement

Inchoate offences punish criminality before the completed substantive offence has occurred. They therefore raise a recurrent question in criminal law: when is it legitimate for the state to intervene before the harm at which the substantive offence is directed has materialised? The answer is not uniform. Attempt focuses on how far the defendant has progressed towards the commission of a particular offence. Conspiracy focuses on the danger and culpability created by agreement. Encouragement and assistance under the Serious Crime Act 2007 focus on acts capable of promoting another person’s offence, coupled with the specified mental element.

For Part IA purposes, the topic is important because it revisits almost every general principle studied earlier in the course. Attempts require close attention to intention, conditional intention, impossibility, and the distinction between preparation and execution. Conspiracy requires analysis of agreement, the intended course of conduct, and the relationship between belief and intention. Encouragement and assistance raise questions about derivative and non-derivative responsibility, the threshold of capability, and the significance of encouraging an offence that may never be committed. These are not merely technical topics. They reveal a deeper contest between prevention and restraint: the law wishes to prevent crime early, but it must not punish mere thoughts, fantasy, association, or morally ambiguous preparation.

A strong Cambridge answer should resist treating the three inchoate regimes as if they were interchangeable. Attempt is unilateral: D may be guilty even if the intended offence is impossible and even if no other person shares D’s purpose. Conspiracy is bilateral or multilateral: the agreement is the gist of the offence, although the substantive offence need never be attempted or completed. Encouragement and assistance occupy a distinct position. They may be committed by acts such as supplying information, urging another to offend, or making facilities available, but the offences are framed by the actor’s intention or belief concerning the principal offence.

The chief statutory materials are the Criminal Attempts Act 1981, the Criminal Law Act 1977, and Part 2 of the Serious Crime Act 2007. The chief doctrinal pressure points are: first, what counts as an act that is more than merely preparatory; secondly, what mens rea is required where the full offence can be committed with recklessness or negligence; thirdly, whether impossibility should matter; fourthly, how far conspiracy requires proof that the conspirators intend the commission of the offence rather than merely foresee it; and fifthly, how the 2007 Act draws the line between culpable encouragement and morally innocent association.

In an examination or supervision essay, do not begin with the slogan that inchoate liability punishes dangerousness. That is true but insufficient. The better structure is to distinguish the protected interests. Attempt protects the interest in preventing imminent or sufficiently advanced harm; conspiracy protects society against the special danger of concerted criminal activity; encouragement and assistance protect against the causal and normative contribution made by one person to another’s offending. Those rationales overlap, but they do not collapse into one another.

The modern law of inchoate offences is the product of statutory reform superimposed on older common law categories. Historically, English law recognised attempt, conspiracy and incitement as separate common law wrongs. Each responded to a different anxiety. Attempt enabled punishment where the defendant had moved towards the commission of a crime but had failed, been interrupted, or chosen the wrong means. Conspiracy addressed the perceived danger of combination: two or more people agreeing to commit a crime were treated as more dangerous than a solitary wrongdoer. Incitement punished the solicitation or urging of another to commit an offence.

The common law of attempt was notoriously uncertain. Courts struggled to formulate the actus reus threshold. Tests based on proximity, last act, unequivocality, or commencement of execution were used at different times and with different emphases. The Criminal Attempts Act 1981 was enacted following Law Commission work and replaced the common law offence of attempt for indictable offences. It adopted the formula now central to the subject: D must do an act which is more than merely preparatory to the commission of the offence. That phrase is deliberately open-textured. It rejects a last-act test, but it also refuses to criminalise remote preparation. The appellate authorities since 1981 have been attempts to give content to that formula without turning it into a mechanical rule.

Conspiracy also moved from common law to statute. The Criminal Law Act 1977 created the statutory offence of conspiracy, although certain common law conspiracies persisted for limited purposes. The 1977 Act makes the agreement the core of the offence. It also accommodates impossible conspiracies, reflecting the modern view that culpability and danger may exist even where the agreed offence cannot in fact be completed. The law of conspiracy has, however, retained features of its common law ancestry. In particular, the courts have remained concerned with the seriousness of collective criminality and the need to prevent criminal plans before execution.

Incitement was replaced by the offences of encouraging or assisting crime under Part 2 of the Serious Crime Act 2007. This reform is especially important. The old common law of incitement was narrower and linguistically tied to persuasion or solicitation. The 2007 Act is broader: it covers acts capable of encouraging or assisting, not merely verbal incitement. It is also more carefully graded by mental state. Section 44 covers intentional encouragement or assistance; section 45 covers encouragement or assistance where D believes the offence will be committed and that D’s act will encourage or assist it; section 46 deals with multiple possible offences. The reform sought to rationalise liability for participation before the principal offence, while avoiding some of the conceptual confusion between inchoate liability and secondary liability.

This historical trajectory shows two general tendencies. The first is expansion: the criminal law has increasingly been willing to intervene before completed harm, especially where D’s conduct is linked to serious anticipated offending. The second is formalisation: Parliament has replaced broad common law labels with statutory formulae. Yet statutory formulae have not eliminated judicial judgment. The phrase more than merely preparatory, the meaning of agreement, and the concept of capability under the 2007 Act all require normative evaluation. In Cambridge terms, the topic is thus a useful site for testing the relationship between legality, prevention, culpability, and fair labelling.

1. Inchoate liability is liability for incomplete criminality. The completed offence has not occurred, but the law treats D’s conduct as sufficiently culpable and sufficiently connected to the threatened offence to justify punishment. There is no single threshold applicable to all inchoate offences. The threshold depends on the legal form: act beyond preparation for attempt; agreement for conspiracy; act capable of encouragement or assistance for the 2007 Act offences.

1. Attempt: actus reus. Under section 1(1) of the Criminal Attempts Act 1981, D must do an act which is more than merely preparatory to the commission of the offence. The negative formulation is important. Parliament did not say that D must perform the last act, nor that D must begin the completed offence. The authorities show two competing instincts. In Jones, pointing a loaded gun after entering the victim’s car was sufficiently advanced. In Geddes, entering school premises with items suggesting an intended abduction was insufficient because D had not yet embarked upon the offence proper. In Gullefer, jumping onto a racetrack to secure a refund on a losing bet was insufficient because the defendant had not yet gone beyond preparation for obtaining money by deception. The question is commonly left to the jury once there is evidence on which they may find the statutory threshold satisfied, but the judge must withdraw the issue if D’s conduct is incapable in law of being more than merely preparatory.

1. Attempt: mens rea. Attempt requires an intent to commit the full offence. Where the completed offence itself requires intention as to a result, D must intend that result. Where the completed offence requires only recklessness as to a circumstance, the position is more nuanced. Khan establishes that attempted rape required an intention to have sexual intercourse and recklessness as to the complainant’s non-consent under the law then applicable. The broader principle is that D must intend to do the acts which would constitute the offence, but need only have the mental state required by the full offence in relation to relevant circumstances. Be careful not to state crudely that attempt always requires intention as to every element. That is too broad. Equally, do not reduce attempt to the mens rea of the full offence; the statute requires intent to commit.

The leading cases on attempt show the courts struggling to give practical content to a deliberately indeterminate statutory phrase. Gullefer is a useful starting point because it warns against treating any step taken for a criminal purpose as an attempt. The defendant’s conduct was preparatory to making a dishonest claim for a refund, not yet the commission of the offence itself. Jones, by contrast, illustrates that the law does not require the final trigger-pull. Once the defendant had entered the car, produced the loaded gun, and pointed it at the victim, the jury could properly find that he had crossed the statutory line. Geddes is the difficult case for students. The defendant had equipment suggesting an intended abduction and was present in the place where the offence might occur, but he had not confronted, approached, or communicated with any child. The Court of Appeal treated this as still preparatory. The case is often criticised because it seems to set the threshold high, especially where prevention of serious harm is at stake.

Shivpuri is the central impossibility case. The defendant believed he was dealing with controlled drugs, but the substance was harmless. The House of Lords held that an impossible attempt could be criminal. The decision is doctrinally important not only because it overruled Anderton v Ryan, but because it frankly accepted that the earlier decision was wrong. It is also theoretically significant: liability is grounded in D’s culpable intention manifested through sufficiently proximate conduct, not in the objective possibility of completion.

Khan remains important on the mens rea of attempt. Under the law then in force, rape required intercourse without consent and recklessness as to consent. The Court of Appeal held that attempted rape did not require an intention that the complainant should not consent; recklessness as to non-consent sufficed for that circumstance. The case prevents the oversimplification that attempt always requires intention as to every element of the full offence. It also forces students to distinguish conduct, result and circumstance elements.

For conspiracy, Anderson and Saik should be read together. Anderson held that a conspirator need not intend to play a continuing or decisive role in carrying the plan through; agreeing to participate in the plan may suffice even if D hopes or expects that the plan will not ultimately succeed. The decision has been criticised for diluting the requirement that conspirators intend the agreed course of conduct. Saik is the corrective authority in cases involving circumstances such as criminal proceeds. It insists that the mental element of conspiracy must be tied closely to what makes the agreed conduct criminal.

For encouragement and assistance, there are fewer canonical appellate authorities under the 2007 Act, so the statutes do more work. Sadique is useful because it shows the courts applying the new offences to facilitative conduct connected with serious offending. Older incitement authorities remain of historical interest but must be used cautiously because the statutory language has changed. A good answer will therefore place the 2007 Act in context without treating pre-2007 incitement cases as if they controlled the present scheme.

See practice questions section below.

See further reading section below.