Inchoate offences — attempts, conspiracy, encouragement

Inchoate offences criminalise conduct preparatory to substantive offences through three categories: attempts (Criminal Attempts Act 1981), conspiracy (Criminal Law Act 1977 and common law), and encouragement/assistance (Serious Crime Act 2007 ss 44-46). For attempts, the defendant must do an act 'more than merely preparatory' to the offence with intent to commit it (s 1(1) CAA 1981). For conspiracy, two or more must agree on conduct that would amount to an offence, intending its commission (s 1 CLA 1977). For encouragement/assistance, the 2007 Act creates three tiers based on whether the defendant intends (s 44), believes (s 45), or believes regarding multiple offences (s 46) that crime will be committed. The rationale extends criminal law's harm-prevention function beyond completed offences to preparatory conduct that sufficiently threatens the substantive harm.

R v Gullefer [1990] 1 WLR 1063: Beating to attract attention to unfavourable race result before placing bets was merely preparatory, not attempted theft. Establishes that clearly directed preparatory conduct still falls short of attempt.

R v Geddes [1996] Crim LR 894: Defendant lurking in school toilets with abduction intent had not moved from preparation into actually trying to commit the offence. Lord Bingham CJ's formulation remains the key articulation of when preparation becomes attempt.

R v Tosti [1997] EWCA Crim 222: Examining barn lock with oxyacetylene equipment was more than merely preparatory to burglary. Shows practical engagement with target's defences crosses the threshold.

R v Shivpuri [1987] AC 1: Impossibility no defence to attempt; defendant believing he imported heroin when substance was harmless could be convicted. Overruled Anderton v Ryan and confirms s 1(2)-(3) CAA 1981 applies to all attempts.

R v Saik [2006] UKHL 18: Conspiracy to commit offence requiring knowledge demands actual knowledge, not mere suspicion. Establishes that conspirators must have the mental element required by the substantive offence.

Courts apply a two-stage analysis for attempts: (1) Has D moved beyond mere preparation into execution? This requires fact-specific assessment—examine whether D has engaged with the target or its defences (Tosti) versus remaining in reconnaissance/planning (Geddes). (2) Did D intend the substantive offence? For result crimes, intention as to result required; for circumstance crimes, recklessness suffices if it would for the substantive offence (Khan). For conspiracy, establish: (1) agreement between two or more persons on criminal conduct; (2) intention that the offence be committed, including any mental element the substantive offence requires (Saik). For encouragement/assistance, identify which tier applies based on D's mental state, then prove the relevant act of encouragement/assistance. Common triggers include: interrupted burglaries, failed drug importations, criminal planning meetings, providing equipment to criminals.

Three critical errors recur. First, applying pre-1981 proximate-act test instead of 'more than merely preparatory'—cite Gullefer/Geddes/Tosti for the modern test, not Eagleton. Second, wrongly equating attempt mens rea with substantive offence—attempted murder requires intent to kill only (Whybrow), not intent to kill/GBH. Third, stating impossibility defeats liability—Shivpuri definitively establishes impossibility is no defence under s 1(2)-(3) CAA 1981; candidates giving the Anderton v Ryan position are wrong. Also beware conflating conspiracy (the agreement) with accessorial liability (participation in actual offence).