General Inchoate Offences Lecture

This lecture covers the following areas of general inchoate offences as part of our series of criminal law lectures:

1. Introduction to General Inchoate Offences
2. Assisting or Encouraging and Offence
3. Conspiracy to Commit a Crime
4. Criminal Attempts

1.0 Introduction

There are often instances where despite the intentions of a defendant, their desire to commit their intended crime is not sufficient to fulfil the requirements of the offence. This intended offence will be referred to throughout as the substantive offence. In these instances, where the substantive offence has not itself have been committed there may well be an offence of a different nature committed due to the actions or agreements of the defendant in preparing to commit the substantive offence. These offences are referred to as general inchoate offences, inchoate meaning incomplete!

The various offences that exist under this general heading are set out and discussed further.

2.0 Assisting or Encouraging an Offence

The Serious Crime Act 2007 sets out three offences relating to assisting or encouraging an offence:

• Section 44: Intentionally encouraging or assisting an offence
• Section 45: Encouraging or assisting an offence believing it will be committed
• Section 46: Encouraging or assisting offences believing one or more will be committed

These offences essentially provide for a defendant who assists another person in committing an offence to be prosecuted regardless of whether the offence is ever actually attempted, yet alone committed.

2.1 Intentionally encouraging or assisting an offence

Section 44 of the Serious Crime Act 2007 provides:

(1) A person commits an offence if-

(a) he does an act capable of encouraging or assisting the commission of an offence; and

(b) he intends to encourage or assist its commission.

(2) But he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.

2.1.1 Actus Reus

• Defendant commits an act, and;
• The act is capable of encouraging or assisting the commission of an offence

Note the requirement here that the defendant carries out a positive action and will not be guilty by way of omission.

2.1.2 Mens Rea

• Intention to encourage or assist in the commission of the offence

This is a specific intention and will not be satisfied by mere recklessness.

2.2 Encouraging or assisting an offence believing it will be committed

Section 45 of the Serious Crime Act 2007 provides:

A person commits an offence if—

(a) he does an act capable of encouraging or assisting the commission of an offence; and

(b) he believes:

(i) that the offence will be committed; and

(ii) that his act will encourage or assist its commission.

2.2.1 Actus Reus

• Defendant commits an act, and;
• Act is capable or encouraging or assisting the commission of an offence

2.2.2 Mens Rea

• Belief that the offence will be committed, and;
• Belief that his act will encourage or assist the commission of the offence

The CPS explanatory notes state that the prosecution should consider belief here to mean the same as it does in the context of handling stolen goods. Following R v Hall [1985] 81 Cr App R 260, that will be taken to mean something more than mere suspicion but short of actual knowledge. For example, the defendant might not be certain that his act is encouraging or assisting the offence but in the circumstances of everything said and undertaken there can be no other reasonable conclusion.

2.3 Encouraging or assisting offences believing one or more will be committed

Section 46 of the Serious Crime Act 2007 provides that:

(1) A person commits an offence if—

(a) he does an act capable of encouraging or assisting the commission of one or more of a number of offences; and

(b) he believes—

(i) that one or more of those offences will be committed (but has no belief as to which); and

(ii) that his act will encourage or assist the commission of one or more of them.

2.3.1 Actus Reus

• Defendant does an act, and;
• The act is capable of encouraging or assisting in commission or one or more offences.

2.3.2 Mens Rea

• Belief that one or more offences will be committed, and;
• Belief that his act will encourage or assist their commission.

Belief should be interpreted in the same manner as in the s.45 offence.

Applying s.46(2), it is irrelevant whether the person has a belief as to which of the offences they are specifically encouraging or assisting as the mens rea is a general belief rather than a belief that must attach itself to a certain specific offence.

2.4 Defence

Section 50 of the Serious Crime Act 2007 provides a general defence to the encouraging and assisting offences where the defendant’s actions were reasonable or where he was acting with a reasonable belief. These defences would cover situations such as pulling over to allow a car travelling in excess of the speed limit to overtake, thus assisting in allowing him to speed but doing so with the reasonable belief that this is the safest thing in the circumstances. In any such case, the burden of proof in establishing the defence rests on the defendant.

Section 51 of the Act further provides limitation of liability to the offences where the offence that was encouraged or assisted by the defendant was one which was created in order to protect a description of person which the defendant fulfils and accordingly the defendant was the victim, or the intended victim of the offence. For example, consider the topical case study of the teacher Jeremy Forrest who ran away with one of his 15-year-old pupils. In relation to the charges of abducting a child and engaging in sexual intercourse of a minor, both offences which the girl encouraged and assisted him in, the young girl could not be charged with this as under s.51 she was the very person who the offence was designed to protect.

2.5 Charging and Sentencing

Despite the provision in s.46 of the Act that the belief of the defendant is that one of more offence may be committed, where these offences carry differing sentences these should be charged as separate counts of encouraging and assisting.

Section 48(3) of the Act sets out the defendant will only be found guilty in relation to a belief in an offence being committed that is so specified in his indictment. Accordingly, it is vital at the CPS charge the defendant with the specific relevant offences to ensure a conviction.

Section 49 of the Act further provides the CPS with the remit to charge a person who encourages and assists another party to in return encourage and assist someone to commit an offence. This would cover behaviour for example such as saying “if you tell him to do it he’ll listen to you”. The section, however, only allows such a charge to be brought under s.44 of the Act, which requires that they intend that the offence in question will be committed. A charge under s.45 or 46 will fail as a mere belief that the offence would be committed is insufficient in relation to this behaviour.

The offences are all triable either way and upon the conviction of any of the assisting and encouraging offences, the defendant is liable to the same maximum sentence as for the full offence. The only exception to this is in relation to murder where the life sentence becomes a discretionary one and not a mandatory one.

3.0 Conspiracy

The offence of conspiracy is provided for both under statute and in the common law.

3.1 Statutory Conspiracy

Section 1 of the Criminal Law Act 1977 provides that:

if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible

he is guilty of conspiracy to commit the offence or offences in question

Section 2 of the Act exempts from liability for the offence the following categories of people:

• Married or civil partners
• A person under the age of criminal responsibility
• An intended victim of one of the offences

Although there is no requirement for any action in preparation for the offence to be carried out past the agreement, in practice there will often be steps taken towards committing the offence past a mere discussion as without this it would be very difficult to prove the conspiracy in a court.

3.1.1 Actus Reus

• An agreement
• As to a course of conduct

Agreement

There must be an agreement between parties. This cannot be established by a mere thought, it must involve actual communication of words, either spoken or written.

It is not necessary for every party to be involved in actioning the agreement for them to satisfy this element of the actus reus, simply being part of the agreement is sufficient. For example, if three people get together and agree that one of them will steal a car, all three would be considered party to the agreement. The actus reus will still be satisfied even where the defendant was to renege on the agreement or change his mind and withdraw straight after the agreement has been made.

The motives of the parties in reaching the agreement are irrelevant.

The case of R v Shillam [2013] EWCA Crim 160 clarifies that whilst the motive behind the agreement is irrelevant, there must be a shared criminal purpose or plan between the conspirators. This is not the same as a requirement for all parties to be in direct contact with one and other, so long as a particular common purpose exists between them. This must necessarily amount to a single jointly shared plan and not separate yet similar plans. All parties need not be privy to the full extent of the scheme so long as they are aware that the scheme goes further than the individual conduct they are agreeing to pursue. Consider the case of R v Griffiths [1966] 1 QB 589 below for an illustration of this.

Course of conduct

This does not need to be to a certain set course and could be dependant on external factors. For example, an agreement that the defendants will attack a person if he happens to be at the house when they arrive would be sufficient.

3.1.2 Mens Rea

• Intention to be party to the agreement, and;
• Intention that the offence will be carried out by one or more of the conspirators.

Only intention will suffice and mere recklessness will be insufficient.

The offence must actually be intended and not just discussed as a theoretical possibility.

3.1.3 Charging and Sentencing

The offence of conspiracy is triable either way and upon conviction, the sentence for conspiracy will not exceed the sentence for the crime that was being conspired to.

3.2 Common Law Conspiracy

Common law conspiracy was abolished by the enactment of the Criminal Law Act 1977 except in relation to two things provided for in s.5 Act, where it is stated that the abolition will not affect the common law offence where it is committed by entering into an agreement to engage in conduct that:

• Corrupts public morals or outrages public decency; or,
• Amounts to a conspiracy to defraud

3.2.1 Conspiracy to corrupt public morals or outrage public decency

This upholds the crime to conspire to corrupt public morals established under the case of Shaw v DPP [1962] AC 220 and the crime to conspire to outrage public decency established under Knuller v DPP [1973] AC 435.

3.2.2 Conspiracy to Defraud

This offence exists to deal with situations where a person dishonestly obtains property but the offence is not covered by any of the Theft Act 1968 provisions.

A pyramid scheme can be highly profitable, but only for a very small number of people at the top of the pyramid. The idea works on people making money by recruiting other members.  So the first person encourages others, say three people, to give him money which is invested and they reap massive rewards. They are thrilled by this so each encourage three other people to invest for a further fee. The main characteristic of a pyramid scheme is that people only continue to make money by recruiting other members. The number of people involved in the scheme grows quickly so that the “base” of the pyramid becomes wider and wider:

• One person encourages three others to invest in his exciting, lucrative opportunity for a fee of say £50.
• The three new recruits each pay the £50 to the individual
• The individual recruiter then tells them to recruit three more people and do the same. If they do they will be returned with £100 with him keeping £50 to himself for every three people they recruit.
• The nine new people now recruited will each have to recruit even more people in order to deliver the same return.
• This gets out of hand exceptionally quickly due to exponential growth with the numbers becoming physically unsustainable and the chain collapses. Almost everyone in the chain at this stage will lose their money.

Upon starting any such scheme, the individuals involved will be guilty of conspiring to defraud.

3.2.3 Actus Reus for Common Law Conspiracy

The actus reus is satisfied by either:

• Conspiring to corrupt public morals or decency or;
• Conspiring to defraud

3.2.4 Mens Rea for Common Law Conspiracy

The mens rea is the same as for statutory conspiracy with the added element of dishonesty. For the purposes of conspiracy dishonesty should be assessed subjectively using the Ghosh test set out in R v Ghosh [1982] EWCA Crim 2:

1. Were the defendant’s actions dishonest by the standards of reasonably honest people?
2. Did the defendant realise that his actions were dishonest?

3.2.5 Charging and Sentencing Common Law Conspiracy

There is not a set sentence in place for conspiracy to corrupt public morals and decency and it is left to the discretion of the judge upon a successful conviction.

Conspiracy to defraud carries a maximum sentence of 10 years’ imprisonment.

4.0 Attempt

Section 1 of the Criminal Attempts Act 1981 provides:

If, with intent to commit an offence to which this section 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.

(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.

(3) In any case where—

(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but

(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,

then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.

Subsection (4) further provides that this only applies to indictable offences and lists exemptions to which the Act will not apply. It is not possible under the Act to be guilty of the attempt to commit:

-  A summary offence

- Conspiracy

• Aiding, abetting, counselling, procuring or suborning the commission of an offence
• Assisting or accepting or agreeing to accept consideration for not disclosing evidence in relation to an arrestable offence.

Where a defendant is on trial for the charge of the full offence but it cannot be established on the facts that the offence was completed, then on indictment the court may still convict the defendant for the attempt. At summary trial this can only be done if the defendant has been charged separately with the attempt.

4.1 Actus Reus

• An act which is more than merely preparatory in the commission of an indictable offence.

Whether the defendant in any case has gone far enough to complete the actus reus of the attempt of their intended offence is a question of fact that will require assessment in the circumstances of each individual case. It is a question of whether they have passed the preparatory stages and done something more. Section 4 of the Criminal Attempts Act 1981 provides that the question of whether there is enough evidence to suggest this may be the case is one for the judge. If so the judge must direct the jury to rule on whether they believe this stage has been surpassed. The courts have taken a narrow interpretation of the legislation holding that this requires the defendant to have embarked upon the crime properly. R v Geddes (1996) 160 JP 697 establishes that the jury must ask themselves whether the defendant actually tried to commit the offence? This will be answered in the affirmative where the accused has done everything up to the point of actually committing the act and often only fails to commit the act due to their plan failing, or example being caught just as they are about to carry out the act or firing a gun at their victim and missing.

In Geddes, although the defendant’s intention was clear and he had placed himself ready to commit the offence, he had not done anything more than this, and therefore nothing which was more than merely preparatory to wrongfully imprisoning an unknown victim could be shown on the facts.

If the jury hold that the preparatory stage has been surpassed then the actus reus is complete, even where the defendant then withdraws their desire to commit the intended offence. 

4.2 Mens Rea

• Intention to commit the offence

As an attempt is an offence of specific intent, it requires the defendant to harbour an actual intention to commit the offence in question.  Anything less, for example recklessness will not be sufficient, even where it would be sufficient as the mens rea for the full offence. So for example, recklessness as to causing GBH would be sufficient for a conviction under s.20 of the Offences Against the Persons Act 1861, however for the purposes of an attempt the recklessness would be insufficient mens rea.

This requirement is qualified where recklessness is established as to other circumstances in addition to the offence, and is not the sole mens rea of the offence. Consider the case of Attorney General's Reference No. 3 of 1992 2 All ER 121, where on a charge of attempted aggravated arson under s.1(2) Criminal Damage Act 1971, once the actual intent to cause damage by fire had been established, the recklessness as to the endangering life element was sufficient, it was not necessary that this element of the offence was specifically intended. Similarly, in R v Khan [1990] 2 All ER 783, a case regarding a rape conviction, as long as the intent to have sexual intercourse was established, the defendant’s recklessness as to the provision of consent was sufficient mens rea for the attempted rape.

R v Shivpuri [1986] 2 All ER 334 establishes that factual impossibility to follow through on the attempt will not negate the intention to commit the offence where if the facts had existed as the defendant believed them to be the offence would have been possible. The case went further and clarified that there is a distinction between factual impossibility and legal impossibility. Where the defendant is mistaken as to the legality of an act, intending to commit a crime that is in fact not a crime, then there can be no conviction for the attempt. 

4.3 Charging and Sentencing

Attempt is a triable either way offence and s.4 of the Criminal Attempts Act 1981 provides that the offence of attempt carries the same maximum sentence for the full offence attempted.

Hands on Example

The following scenario will give you the opportunity to put your knowledge of the inchoate offences to the test, and examine your ability to identify the offences and apply the provisions and surrounding case law in a practical setting.

Take a look at the following passage and have a go at highlighting the material facts and legal issues, making a note of any ideas or relevant law that springs to mind as you go through. Once you have done this have a go at putting together an answer to the question. Good luck!

If you’re feeling stuck there is really no need to worry. If you haven’t seen one of these questions before then they can be daunting, but there is nothing in the scenario that we haven’t covered in this unit. Use the outline answer provided below as a prompt to help you with your answer or to check any answer you have produced on your own.

Jan is in a restaurant with her friend Sebastian. The pair enjoy a lovely meal together and have a good chat, during which Sebastian offloads to Jan about his unrequited love for their friend Samantha, desperate to understand why she isn’t interested in him. Jan ribs Sebastian saying that the reason why Samantha will never fancy him is that he is too boring and that he doesn’t break the rules enough. “Samantha prefers a bit of a rebel” she tells him. When the bill arrives Jan jokes to Sebastian “go on, let’s do a runner, show Samantha that you aren’t boring after all”. She goes to the toilet and then when she comes back, the pair walk out. Jan believes that Sebastian has paid the bill already but in fact Sebastian has decided to take Jan up on her suggestion and live a little more dangerously, leaving the restaurant without paying for the food. As they leave the waitress goes to run after them but another customer Dave who is annoyed at the poor service and wants to see the restaurant pay sees this and gets in the way, allowing Jan and Sebastian to exit the restaurant without being stopped.

Walking back to the car the pair see Jan’s ex-boyfriend James who recently cheated on Jan leaving her heartbroken. Jan tells Sebastian that she wants to hurt him and make him pay before announcing that she will go and break his nose. She runs off and gets behind James who is facing away from her and swings a punch just as Sebastian catches up with her and restraints her from doing anything further.

Discuss the liability of the parties for any inchoate offences.

Jan

Restaurant

• Possible offence of encouraging and assisting the offence of making off without payment under either s.44 or s.45 of the Serious Crime Act 2007.

s.44

Actus Reus

• Defendant commits an act, and;
• The act is capable of encouraging or assisting the commission of an offence

This is satisfied on the facts. Jan commits the act of talking Sebastian into committing the offence and the act is capable of encouraging Sebastian to do that through persuasion and knowing how Sebastian feels about Samantha.

Mens Rea

• Intention to encourage or assist in the commission of the offence

On the facts as it appears that Jan is only joking and teasing Sebastian and has no intention to genuinely encourage Sebastian to commit the offence.

• The mens rea is not satisfied so no liability for an offence under s.44 arises.

s.45

Actus Reus

• Defendant commits an act, and;
• The act is capable or encouraging or assisting the commission of an offence

As above this is satisfied by Jan’s behaviour on the facts.

Mens Rea

• Belief that the offence will be committed, and;
• Belief that his act will encourage or assist the commission of the offence

Applying Hall Jan must harbour more than mere suspicion that her actions will encourage or assist the offence and given everything she has said to him, she can come to no other conclusion as to Sebastian’s actions. This is contentious on the facts and could be argued either way. It is likely, however, that given that Jan was joking and that she believes Sebastian to be very well behaved and reluctant to break the rules, coupled with the fact she is oblivious to the fact that Sebastian carries out the offence, suggests that at no point does it cross her mind that she is encouraging Sebastian.

• According to the interpretation of the facts the mens rea is not satisfied therefore no offence is committed by Jan.

Punch

• In relation to trying to punch James and break his nose, Jan may be guilty of the attempted GBH under s.1 of the Criminal Attempts Act 1981.GBH is charged under s.18/20 of the Offences Against the Persons Act 1861 where it is specified that the offence is indictable, and therefore qualifying as an act that can be criminally attempted.

Actus Reus

• An act which is more than merely preparatory in the commission of an indictable offence.

Applying Geddes, Jan has embarked upon the offence proper, doing the last possible act she can in throwing the punch, without making contact and committing the offence.

Mens Rea

• Intention to commit the offence.

This is established on the facts as it is clear that Jan intends to break James’ nose and thus commit GBH.

• Applying the law to the facts it is evident that Jan will be guilty of the attempted GBH

Dave

• Dave may be guilty of intentionally assisting with an offence under the Serious Crime Act 2007.

s.44

Actus Reus

• Defendant commits an act, and;
• The act is capable of encouraging or assisting the commission of an offence

This is satisfied on the facts. Dave commits the act of getting in the way or the waitress allowing Sebastian to successfully leave the restaurant and complete the offence of making off without payment.

Mens Rea

• Intention to encourage or assist in the commission of the offence

On the facts as it appears that Dave intends to assist Sebastian in making off without payment by doing the act of getting in the way of the waitress as he is annoyed at the service he has received and wants to see them lose money.

• All elements of the offence are therefore satisfied and Dave will likely be liable for an offence under s.44. No defence under s.50 as the facts are as Dave believed in that he was helping them get away and he was not operating under a mistaken belief, for example that he was preventing the waitress from assaulting them.

…For extra marks

Sebastian

It should briefly be mentioned that in relation to Jan’s intention to punch James, Sebastian will not be guilty of conspiracy under s.1 Criminal Law Act 1977 as he is not in agreement as to the course of action, he is merely informed of it seconds before it takes place and does everything he can to prevent Jan thus highlighting that he is not party to any agreement.

Cite This Module

To export a reference to this article please select a referencing style below:

• APA
• MLA
• MLA-7
• Harvard
• Vancouver
• Wikipedia
• OSCOLA