Inchoate offences and accessorial liability
Mods introduction to attempts, conspiracy, encouragement, and accessorial liability — covering the same ground as the FHS modules but at introductory level.
Overview
Inchoate and accessorial liability extend the criminal law beyond the principal offender. Inchoate offences criminalise preparatory conduct (attempts; conspiracy; encouragement and assistance). Accessorial liability extends to those who participate in the substantive offence as accessories. This week introduces the doctrines at Mods Year 1 level; the FHS Year 2 modules cover the same ground in more detail.
The doctrinal architecture has three components. (i) Attempts — the Criminal Attempts Act 1981 ''more than merely preparatory'' test. (ii) Conspiracy — the Criminal Law Act 1977 statutory offence and the surviving common-law conspiracies (defraud; corrupt public morals). (iii) Encouragement and assistance — the Serious Crime Act 2007 ss 44-46 (replacing the common-law incitement). Plus the accessorial-liability framework under the Accessories and Abettors Act 1861 s 8, with the post-Jogee mens rea requirement.
The topic is foundational: it explains how the criminal law treats preparation and participation. The connections are to W2 (mens rea), W7 (defences — duress applies to inchoate offences with the homicide exclusion), and to substantive offences across the criminal-law syllabus.
Historical context
Inchoate offences emerged at common law in the seventeenth and eighteenth centuries (R v Higgins (1801) 2 East 5; R v Jones (1832) 4 B & Ad 345). The Criminal Attempts Act 1981 codified attempts; the Criminal Law Act 1977 codified most conspiracies; the Serious Crime Act 2007 replaced incitement with the encouragement and assistance offences.
Accessorial liability has been part of English criminal law since the medieval period. The Accessories and Abettors Act 1861 s 8 codified the basic position. The Chan Wing-Siu / Powell and English line on joint enterprise (1985-1999) was a separate doctrinal development that was corrected in R v Jogee [2016] UKSC 8.
Key principles
(1) Attempts. Criminal Attempts Act 1981 s 1(1) — more than merely preparatory test. The defendant must intend to commit the substantive offence and do an act that is more than merely preparatory. Mens rea matches the substantive offence (with strict requirements for results — intent to kill for attempted murder per Whybrow). Impossibility no defence (s 1(2)–(3); Shivpuri).
Statutory framework
Criminal Attempts Act 1981. Section 1(1) — more than merely preparatory test.
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Landmark cases
R v Geddes [1996] Crim LR 894 — more than merely preparatory test for attempts. R v Khan [1990] 1 WLR 813 — mens rea for attempted offences.
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
RatioLord Bingham CJ articulated the modern test.
RatioThe attempt mens rea aligns with the substantive offence except where the result is concerned (Whybrow).
RatioOverruled the Chan Wing-Siu / Powell and English doctrine on joint enterprise.
RatioKnowledge of the essential elements is required for accessorial liability.
RatioConspirators must have the mental element required by the substantive offence.
RatioLord Bridge: Anderton v Ryan was wrongly decided; the 1981 Act applies to all attempts including impossible ones.
RatioThe Tyrrell exception applies where the offence is designed for the victim''s protection.
Doctrinal development
Attempts. The Criminal Attempts Act 1981 replaced the proximate-act test (R v Eagleton (1855)) with the more than merely preparatory test in s 1(1).
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Academic debates
The more than merely preparatory test. Whether the test is workable. The supportive view (Smith and Hogan) is that it captures the intuitive distincti
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Comparative perspective
United States — Pinkerton doctrine. Conspirators are liab
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Worked tutorial essay
Question. ''The Criminal Attempts Act 1981, the Criminal Law Act 1977, and the Serious Crime Act 2007 together form a statutory framework that is more coherent than the common-law alternatives they replaced. The Accessories and Abettors Act 1861 has remained in its 1861 form because no one has been able to think of a better alternative.'' Discuss.
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Common exam traps
Five recurring errors. First, applying the proximate-act test for attempts (replaced b
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Practice questions
Five graded practice questions in the panel below.
Further reading
See the Further Reading panel for Ashworth, Smith and Hogan, the Law Commission Reports, and the post-Jogee academic commentary.
Practice questions
State the test for an attempt under s 1(1) of the Criminal Attempts Act 1981.
Explain the doctrinal correction in R v Jogee [2016] UKSC 8.
Further reading
- Andrew Ashworth and Jeremy Horder, Principles of Criminal Law
- Smith and Hogan, Criminal Law
- Law Commission, Inchoate Liability for Assisting and Encouraging Crime (Report No 300)
- Beatrice Krebs, Joint Criminal Enterprise after Jogee
- David Ormerod and Karl Laird, Smith, Hogan, and Ormerod''s Criminal Law