In English criminal law, an inchoate offence is an offence relating to a criminal act which has not, or not yet, been committed. The main inchoate offences are attempting to commit; encouraging or assisting (formerly inciting) crime; and conspiring to commit.
Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance.
Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". Incitement as a common law offence was abolished by the Serious Crime Act 2007, but specific statutory offences continue and the concept is part of the foundation of the new offences relating to "encouraging or assisting" the commission of a crime.
Conspiracy is both a statutory and common law offence. In its statutory form, under the Criminal Law Act 1977, it consists of any agreement between two or more people to commit a criminal offence. Common law conspiracy, on the other hand, covers "conspiracy to defraud" and "conspiracy to corrupt public morals", although the latter has no substantive case law and is not seen as an offence that individuals are likely to be prosecuted for. All three inchoate offences require a mens rea of intent, and upon conviction, the defendant is sentenced as if they had succeeded in committing the attempted, incited or conspired crime in question.
Definition Inchoate means "just begun" or "undeveloped", and is used in English criminal law to refer to situations where, although a substantial offence has not been committed, the defendant has taken steps to commit it, or encouraged others to do so.Herring (2008) p.771 These situations are generally divided into three categories; attempts, where the defendant has taken steps "towards carrying out a complete crime", incitement, where the defendant has encouraged others to commit a crime, and conspiracy, where the defendant has agreed with others to commit a crime. In each case, the defendant "has not himself performed the actus reus but is sufficiently close to doing so, or persuading others to do so, for the law to find it appropriate to punish him".Herring (2008) p.772
Offences + Inchoate offences in English law: summary Offence Source Indictable offences Summary offences Notes Attempt section 1 Criminal Attempts Act 1981 Yes No A handful of specific summary offences are capable of being attempted Encouraging or assisting an offence section 44-46 Serious Crime Act 2007 Yes Yes Previously the common law offence of "incitement" Conspiracy (statutory) section 1 Criminal Law Act 1977 Yes Yes Largely replaced the old common law offence of "conspiracy" Conspiracy (common law) Common law Two specific offences N/A Can only be committed in respect of the offences of fraud, and outraging public decency
By virtue of the Accessories and Abettors Act 1861 (in respect of indictable offences) and the Magistrates' Courts Act 1980 (in respect of summary offences), a person who "aids, abets, counsels or procures" the commission of an offence is dealt with as though they committed the offence themselves. However, "aiding and abetting" is not an offence itself in the same way that inchoate offences are.
Attempt
Attempts are governed by the Criminal Attempts Act 1981, which states that "if, with intent to commit an offence to which [the act applies], a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence".The Criminal Attempts Act 1981 S.1(1) A required element is intent, or mens rea. In R v Pearman,(1984) 80 Cr App R 259 (CA) the Court of Appeal of England and Wales confirmed that the definition of intent in the 1981 Act is the same as the definition in the common law.Herring (2008) p.773 The common law gives intention "its normal meaning: purpose or aim", with judges advised not to, in the majority of cases, attempt to complicate the definition.Herring (2008) p.139 Conditional intent – where somebody has an intent to commit a crime only in certain circumstances – has also been deemed acceptable for an indictment for attempting a crime.Simester et al. (2010) p.342 In Attorney-General's Reference (Nos. 1 and 2 of 1979), the Court of Appeal explained that the intention to steal "anything that was worth stealing could form the basis of an attempt charge if the indictment was drafted carefully".Herring (2008) p.778 This was a procedural solution to a previous apparent contradiction, but the suggested drafting may not demonstrate sufficient proximity between the defendant's actions and what he was planning to steal.Simester et al. (2010) pp.341–42 A mens rea requirement is added to the attempt of crimes of strict liability (where there is no intent or merely objective recklessness), although the ruling in Attorney General's Reference (No. 3 of 1992) makes this less certain.Simester et al. (2010) pp.334–35
Section 1(1) also provides that the actus reus must be "more than merely preparatory". In practice, academic Jonathan Herring notes that "there is no hard and fast rule about when an act may be more than merely preparatory", although there are several cases which give broad guidance. In R v Geddes, Crim LR 894 a man entered the toilets in a school in Brighton with a large knife, some rope and a roll of masking tape; it was alleged that he was intending to kidnap a pupil. The Court of Appeal confirmed that this was not enough for a conviction.Herring (2008) pp.779-80 However, certain general rules have been laid down; if the defendant has committed the last act before completing his offence, it constitutes an attempt. This is not, however, necessary in all situations, as in R v Gullefer. 3 All ER 882 (CA) The actus reus of the full offence is also taken into account; in R v Toothill, Crim LR 876 (CA) the defendant was charged with attempted burglary after trespassing into the victim's garden and knocking on their door. He was found guilty, because he had entered the property – the actus reus for burglary – and his actions were thus more than merely preparatory.Herring (2008) p.781 The wording "does an act" prevents liability for omissions, a distinction that the Law Commission has looked to remove, at least in the case of attempted murder.Simester et al. (2010) pp.333–34
Certain things cannot be attempted. These include conspiracy, under section 1(4) of the 1981 Act, assisting a criminal, under section 4(1) of the Criminal Law Act 1967, aiding in the commission of an offence, or most summary offences, with the logic being that they are too minor for attempts to justify a criminal conviction.Herring (2008) p.782 A small number of separate statutory offences have been created to cover attempts concerning individual summary offences, in which case, usual attempt law and procedure applies.Simester et al. (2010) p.333
If someone is found guilty of an attempt, they are sentenced under section 4(1) of the 1981 Act. This provides that anyone who attempts to commit an offence will be punished with the same period in prison as if they had succeeded; since theft carries a maximum penalty of seven years in prison, for example, someone convicted of attempted theft would also find themselves sentenced to a maximum of seven years.Clarkson, Keating & Cunningham (2007) p.475
Encouraging or assisting
The offences of "encouraging or assisting a crime" under the Serious Crime Act 2007 are inchoate offences.Ormerod, David. Smith and Hogan's Criminal Law. Thirteenth Edition. Oxford University Press. 2011. p. 402. In each case, the actus reus requirement is that the defendant carry out an act capable of "encouraging or assisting" the commission of another offence. An offence is committed under section 44, if this is done with intent to do the same; under section 45 if it is done "believing that the offence will be committed and that the act will encourage or assist its commission"; or under section 46 where there are multiple possible offences being encouraged or assisted, and at least one is foreseen.Simester et al. (2010) p.287 There is no need for the defendant to have successfully communicated his thoughts to anyone else. Since this is very wide, the courts will have to narrow it by some criterion, probably by reference to the remoteness of the encouragement to the crime. Failing to act when under a duty to do so would also qualify.Simester et al. (2010) p.291
"Encouraging" is not defined in the statute and can be considered in the same way as the previous crime of incitement. It does not matter if the encouragement or assistance has no effect.Simester et al. (2010) p.288 "Assisting" is likely to be considered similar to "aiding" in accessorial liability. Assistance can be provided indirectly, for example through a third person.Simester et al. (2010) p.290
Whereas incitement can only be committed when the defendant incites the principal offender, the crime of "encouraging or assisting" includes helping an accessory.Simester et al. (2010) p.292 Whilst a section 44 offence can be committed in relation to other inchoate offences (including itself), sections 45 and 46 cannot. Crimes which are, in fact rather than law, impossible to commit yet – but will be – also fall under this offence.Simester et al. (2010) p.293
In terms of mens rea, any form of recklessness, including virtual certainty, is insufficient for an offence under Section 44, in part due to the existence of Section 45 and 46 which aid its interpretation. Offences under Sections 45 and 46 are only committed if the defendant believes that both the crime will be committed, and that the act will encourage or assist the offender: that they might do so is not enough.Simester et al. (2010) p.294 However, it is also possible to commit these offences if the defendant commits an act capable of encouraging or assisting the commission of a crime, intending or believing that the principal offender would carry out the "act", where that may not in itself constitute a crime. However, it is necessary that the defendant intend or be reckless to any required circumstances or consequences – for example, that death was a result. Additionally, the prosecution must show that the defendant believed that (or was reckless to) whether the act would be done with the required mens rea, or that the defendant himself has the required mens rea for the offence.Simester et al. (2010) p.295 These amount to very complex provisions.Simester et al. (2010) p.296
There is no defence of later withdrawing from the act; however, there is one of "acting reasonably" under Section 50. This takes two forms: either that the acts themselves were reasonable; or that the defendant reasonably believed in circumstances which did not exist and acted reasonably under those circumstances. The existence of this defence has been attacked by Andrew Simester and Bob Sullivan on the grounds it may be acting as a "sop" to counteract excess brevity in other sections of the act.Simester et al. (2010) p.298–99 Victims are extended the "Tyrell" defence – that one cannot aid, abet, counsel or procure an offence against oneself – although exactly when a victim is protected can be unclear.Simester et al. (2010) p.299–300
Incitement