Inchoate offences — attempts, conspiracy, encouragement
Criminal Attempts Act 1981, conspiracy under Criminal Law Act 1977, and encouragement/assistance under Serious Crime Act 2007.
Overview
Inchoate offences criminalise conduct preparatory to a substantive offence. The three principal categories are attempts (criminalised by the Criminal Attempts Act 1981), conspiracy (criminalised by the Criminal Law Act 1977 and at common law for conspiracy to defraud and to corrupt public morals), and encouragement and assistance (criminalised by the Serious Crime Act 2007 ss 44-46, replacing the common-law offence of incitement). The category exists because the criminal law''s interest in preventing harm extends beyond completed harms — preparatory conduct that comes close to causing the substantive harm itself merits criminal sanction.
This week traces the doctrinal architecture of inchoate liability. Attempts: the more than merely preparatory test from the 1981 Act and the principal case-law from R v Gullefer through R v Geddes and R v Tosti. Conspiracy: the agreement requirement and mens rea — R v Saik, Yip Chiu-Cheung v R. Encouragement and assistance: the three-tier structure of the 2007 Act (s 44 intentional encouragement; s 45 belief encouragement; s 46 multiple-offence belief encouragement). The week also covers the impossibility issue (R v Shivpuri) and the relationship between inchoate and accessorial liability (W15).
The topic connects to W2 (mens rea — inchoate offences require intention or belief), W11 (defences — duress applies to inchoate offences), and W15 (accessorial liability — the boundary between attempts and accessorial complicity).
Historical context
Inchoate offences emerged piecemeal at common law. Attempt was criminalised in R v Scofield (1784) Cald 397 and R v Higgins (1801) 2 East 5; the test was the proximate-act doctrine — conduct so close to completion that it was the equivalent of the substantive offence. Conspiracy traces to the Court of Star Chamber and was developed in R v Jones (1832) 4 B & Ad 345; the modern offence is statutory (Criminal Law Act 1977 s 1) but the common-law forms (conspiracy to defraud; conspiracy to corrupt public morals) survive. Incitement was at common law until the Serious Crime Act 2007 abolished it and replaced it with the encouragement and assistance offences.
The nineteenth and twentieth centuries refined the doctrines. R v Eagleton (1855) Dears CC 515 articulated the proximate-act test for attempts. R v Whybrow (1951) 35 Cr App R 141 confirmed that attempted murder requires intent to kill (not merely intent to cause GBH). R v Mohan [1976] QB 1 elaborated the mens rea: a decision to bring about the prohibited consequence. The Criminal Attempts Act 1981 codified the law, replacing the proximate-act test with the more than merely preparatory test in s 1(1).
Conspiracy was reformed by the Criminal Law Act 1977 s 1: agreement between two or more persons to commit any offence is conspiracy, with the basic mens rea being intention that the offence be committed. The position was clarified in R v Saik [2006] UKHL 18 (mens rea for conspiracy to launder money requires knowledge of the illegitimate origin of property).
Encouragement and assistance was reformed by the Serious Crime Act 2007 (replacing the common-law offence of incitement). The new structure created three offences with different mens rea requirements, addressing complexities that had emerged in the common-law incitement case-law.
Key principles
(1) Attempts — the more than merely preparatory test. Criminal Attempts Act 1981 s 1(1): a person attempts to commit an offence if, with intent to commit the offence, they do an act which is more than merely preparatory to the commission of the offence. The test is fact-specific. R v Gullefer [1990] 1 WLR 1063 — beating to attract attention to an unfavourable race result before placing bets was preparatory; not attempted theft. R v Geddes [1996] Crim LR 894 — defendant lurking in school toilets with intention to abduct a child was preparatory; not attempted false imprisonment. R v Tosti [1997] EWCA Crim 222 — defendants examining a barn lock with oxyacetylene equipment was more than merely preparatory; was attempted burglary.
Statutory framework
Criminal Attempts Act 1981. Section 1(1) — the more than merely preparatory test. Section 1(2) — impossibility no defence.
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Landmark cases
R v Gullefer [1990] 1 WLR 1063. The defendant beat to attract attention to an unfavourable race result before placing bets, with the intention of recovering lost stakes. The Court of Appeal held this was merely preparatory; not attempted theft. The case applied the s 1(1) test for the first time and confirmed that preparatory conduct, however clearly directed toward an offence, does not amount to an attempt.
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Doctrinal development
The pre-1981 attempts law. The proximate-act test from R v Eagleton governed for over a century. The test was criticised as imprecise — what counts as ''proximate'' is a matter of judgment. The Law Commission''s 1980 report on attempts proposed the more than merely preparatory test that became s 1(1) of the 1981 Act.
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; Ashworth) is that the test correctly captures the intuitive distinction between preparation and execution.
Pro members see the full notes including statute extracts, case quotes, worked tutorial essays, and practice questions.
Comparative perspective
United States — Model Penal Code §5.01. Defines attempt by reference to ''substantial step'' toward commission. The American test is more permissive than the English one (more conduct counts as attempt).
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 has not produced a clearer test for attempts; it has merely relabelled the proximate-act doctrine. The Law Commission''s 2007 review missed the opportunity for substantive reform.'' Discuss.
Plan. Test (a) whether the 1981 Act produced a clearer test; (b) whether the Law Commission''s 2007 review missed the opportunity for substantive reform.
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 post-1981. The 1981 Act replaced the proximate-act test with the more than merely preparatory test; candidates cit
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-Saik commentary.
Practice questions
State the test for an attempt under s 1(1) of the Criminal Attempts Act 1981. Apply it to a defendant who has lurked outside a victim''s house with a knife but has not yet entered.
Explain the mens rea for attempted murder. Why does it differ from the mens rea for the substantive offence?
Further reading
- Andrew Ashworth and Jeremy Horder, Principles of Criminal Law
- Smith and Hogan, Criminal Law
- Law Commission, Conspiracy and Attempts (Report No 318)
- Law Commission, Inchoate Liability for Assisting and Encouraging Crime (Report No 300)
- David Ormerod and Karl Laird, Smith, Hogan, and Ormerod''s Criminal Law
- Jeremy Horder, Ashworth''s Principles of Criminal Law
- Glanville Williams, Textbook of Criminal Law
- Catherine Elliott and Frances Quinn, Criminal Law