Inchoate offences — attempts, conspiracy, encouragement

Inchoate liability is the criminal law's principal technique for intervention before the completed harm occurs. It punishes attempts, conspiracies, and encouragement or assistance because the actor has moved sufficiently close to, or has sufficiently aligned himself with, criminal wrongdoing. The topic therefore tests two ideas which have run through the Durham Year 2 Criminal Law module: first, the general architecture of criminal responsibility, especially actus reus and mens rea; secondly, the limits of fair labelling, proportionality, and preventive criminalisation.

The three main regimes are distinct. Attempt, governed by the Criminal Attempts Act 1981, concerns a defendant who intends to commit a substantive indictable offence and does an act which is more than merely preparatory. The actus reus is proximity-based; the mens rea is intention-based, though difficult questions arise where the full offence may be committed recklessly or with conditional intent. Conspiracy, governed principally by the Criminal Law Act 1977, is agreement-based. Its mischief is collective criminal resolve: the law intervenes not because the offence has been attempted, but because persons have agreed upon a course of conduct which, if carried out as intended, would necessarily involve the commission of an offence. Encouragement and assistance, now governed by Part 2 of the Serious Crime Act 2007, replaces the old common law offence of incitement and targets acts capable of encouraging or assisting crime, coupled with intention or belief as to the principal offence.

A first-rate answer must keep the regimes separate. It is a common error to treat all inchoate offences as if they required proximity to completion. That is true of attempt; it is not true of conspiracy, where the completed offence may be remote, and it is not true in the same way of encouragement or assistance, where the conduct must be capable of encouraging or assisting but need not cause the offence or even result in its commission. Conversely, it is equally mistaken to assume that all inchoate offences punish thoughts alone. Each requires an external manifestation: an act more than merely preparatory, an agreement, or an act capable of encouragement or assistance.

Durham examination technique should reflect the compulsory first-year foundations. The best answers use legal method rigorously: identify the statutory language, break it into actus reus and mens rea, apply the leading cases, then evaluate the policy boundary. The topic connects with earlier Year 2 weeks on intention, recklessness, intoxication, mistake, sexual offences, fraud, burglary, criminal damage, and defences. Inchoate liability is not an isolated add-on. It is a stress test for the general principles already studied.

The historical development of inchoate offences reflects a tension between two instincts: the preventive instinct to stop criminal harm before it happens, and the liberal instinct not to punish mere thoughts, moral wickedness, or remote preparation. English law has never confined liability to completed harms. Yet it has usually required some outward manifestation which makes the actor's criminality sufficiently public, determinate, and dangerous.

Attempt was historically a common law offence. Its early shape was uncertain because courts struggled to formulate the line between preparation and perpetration. Some formulations asked whether the defendant had done the last act necessary; others whether the defendant had embarked upon the crime proper. The modern statutory test in the Criminal Attempts Act 1981 deliberately rejects the last-act requirement. A defendant need not have reached the final step. The question is whether the act is more than merely preparatory. That phrase is deliberately compact and jury-facing, but its compactness has produced difficult appellate authority. Cases such as Gullefer, Jones and Geddes show that the courts have oscillated between a relatively generous view of attempt and a more restrictive insistence that the defendant must have entered the zone of execution.

Conspiracy is older still. Common law conspiracy had an expansive and sometimes politically controversial history, used to punish combinations regarded as dangerous to public order. The modern statutory conspiracy under the Criminal Law Act 1977 sought to rationalise the offence by requiring agreement to a course of conduct which would necessarily amount to or involve the commission of an offence. Its central rationale is the danger of combination. Group criminality may increase resolve, resources, secrecy, specialisation and practical capacity. The law therefore treats agreement itself as a harm or danger worth punishing, even before the substantive offence is attempted.

Incitement was the predecessor to the Serious Crime Act 2007 offences of encouraging or assisting crime. Common law incitement was narrower and conceptually awkward: it focused on urging another to commit an offence. It did not comfortably capture all forms of assistance offered before the offence, and its relationship with secondary liability was untidy. The Law Commission proposed a more systematic statutory scheme. Part 2 of the 2007 Act now creates offences of intentionally encouraging or assisting an offence, encouraging or assisting believing an offence will be committed, and encouraging or assisting one or more of a number of offences believing that at least one will be committed. The statutory language is broader than incitement: it covers conduct capable of assisting as well as encouraging.

The modern history is also shaped by impossibility. Older doctrine was hesitant where the offence could not in fact be completed. Shivpuri decisively confirmed liability for impossible attempts where the defendant intends to commit an offence on the facts as he believes them to be. The Criminal Attempts Act 1981 and Criminal Law Act 1977 now both accommodate impossibility. The law's concern is not only actual danger but manifested culpability and apparent danger: the person who tries to deal in what he believes are controlled drugs is not morally innocent merely because the substance is harmless.

The historical pattern is therefore one of codifying and rationalising common law offences without eliminating their boundary problems. The statutes provide the vocabulary; the cases provide the working thresholds. In examinations, it is not enough to recite that inchoate offences are preventive. The stronger answer explains how English law has tried to prevent harm while preserving the principle that criminal liability requires more than a guilty mind.

The first principle is that inchoate liability is parasitic but not derivative in the same way as complicity. Attempt, conspiracy, and encouragement or assistance all relate to a substantive offence, but they are complete before that substantive offence is completed. Attempt requires intent to commit an offence to which the 1981 Act applies. Conspiracy requires agreement to a course of conduct which would necessarily involve an offence. Encouragement and assistance require an act capable of encouraging or assisting the commission of an offence, coupled with the mental element specified by the Serious Crime Act 2007. None requires conviction of a principal offender for the completed offence.

The second principle is that each offence has a different actus reus threshold. Attempt requires conduct more than merely preparatory. This is the most demanding proximity requirement among the three. Mere planning, reconnaissance, acquisition of tools, or positioning may not be enough unless the defendant has moved from preparation into execution. The authorities are fact-sensitive. In Jones, getting into the victim's car with a loaded gun and pointing it was capable of being more than merely preparatory to murder. In Geddes, hiding in a school lavatory with equipment which could be used for kidnapping was not enough; the defendant had not yet confronted or communicated with a victim. The phrase more than merely preparatory invites an evaluative judgment, not a mechanical checklist.

Conspiracy requires an agreement. The agreement is the offence. It may be express or implied, formal or informal. The prosecution must prove that the parties agreed on a course of conduct of the relevant criminal character. Mere negotiation, discussion, association, or knowledge of another's criminal plan is insufficient. The agreement must, if carried out in accordance with the parties' intentions, necessarily amount to or involve an offence. The law punishes the collective commitment because combination increases danger and demonstrates a settled criminal purpose. The completed offence need not be attempted.

Encouragement and assistance require an act capable of encouraging or assisting. Capability is important. The act need not actually encourage or assist, and the principal offence need not be committed. An ineffective message, advice, provision of tools, information, transport, or introduction may suffice if objectively capable of encouraging or assisting crime. The statutory offences are therefore preventive, but they are not offences of bare thought: there must be an external act.

The leading attempt cases are best understood as attempts to give operational meaning to more than merely preparatory. Gullefer is the restrictive starting point. The defendant jumped onto a greyhound track hoping to have a race declared void and recover his stake. The House of Lords held that his conduct was not yet an attempt to steal because he had not moved from preparation into the commission of theft. The case warns against equating motive, planning, or commercial pressure with the actus reus of attempt.

Jones shows the opposite tendency. The defendant got into the victim's car with a loaded shotgun, pointed it, and was prevented from firing. The Court of Appeal held that there was evidence of attempted murder. The judgment is important because it rejects any last-act requirement. A defendant need not have removed every safety catch or pulled the trigger. Once the defendant has embarked upon the offence proper, the statutory threshold may be satisfied.

Geddes is the key examination trap. The defendant was found in a school lavatory with a knife, rope and tape. He had not confronted or communicated with a child. The Court of Appeal held that his acts were preparatory only. The case is often criticised because the danger appeared acute, but doctrinally it illustrates the court's insistence that possession of equipment and presence at the scene do not necessarily amount to execution of the offence.

Shivpuri is central on impossibility. The defendant believed he was dealing with controlled drugs, but the substance was harmless vegetable matter. The House of Lords held that he could be guilty of attempt. It overruled Anderton v Ryan and affirmed that the law may punish an impossible attempt where the defendant's intention, on the facts as he believed them to be, is criminal.

Khan addresses the mens rea of attempts where the completed offence involves recklessness as to a circumstance. The defendants were charged with attempted rape. The Court of Appeal held that they had to intend intercourse, but recklessness as to consent could suffice for the circumstance element. Although the Sexual Offences Act 2003 has since changed the structure of rape, Khan remains important for the wider issue of mens rea correspondence.

Pace and Rogers qualifies any overbroad reading of Khan. The defendants attempted to convert criminal property, but the completed offence could be committed on suspicion. The Court of Appeal held that suspicion was insufficient for the attempt: they had to intend to convert property which they knew or believed to be criminal property. The case is significant because it reasserts the demanding nature of intention in attempt liability.

Anderson and Saik form the conspiracy axis. Anderson's suggestion that a conspirator need not intend the crime to be carried out caused doctrinal trouble. Saik later restored discipline by requiring knowledge or intent as to the circumstance making the agreement criminal in the money laundering context. The practical conclusion is that agreement alone is not enough unless the defendant's state of mind properly corresponds to the criminal object.

For encouragement and assistance, Sadique is a useful modern illustration of Part 2 of the 2007 Act. The defendant was involved in arranging sham marriages. The Court of Appeal considered the statutory offences and the mental elements of encouraging or assisting immigration offences. The case underlines that the 2007 Act is not confined to direct urging; practical facilitation can suffice where the statutory mental element is established.

See practice questions section below.

See further reading section below.