Inchoate Offences
Principle
There are instances where a substantive offence may not have come to completion but nevertheless an offence has been committed because of the actions or agreements in preparation for the substantive offence. These are known as inchoate offences.
Guidance
Incitement
The offence of incitement occurs when a person seeks to persuade another to commit a criminal offence. A person is guilty of incitement to commit an offence or offences if:
- s/he incites another to do or cause to be done an act or acts which, if done, will involve the commission of an offence or offences by the other; and
- s/he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence(s) (R v Claydon [2006] 1 Cr.App.R. 20) (see further Archbold 34-70).
It is not a defence to a charge of incitement that the other person, for whatever reason, does not commit the offence, or commits a different offence to that incited.
The prosecution must show that the person accused of incitement intended or believed that the person incited would, if acted as incited to do so, do so with the mens rea appropriate to the offence.
Incitement is usually a common law offence but there are some instances where statute has created the offence: e.g., section 19 Misuse of Drugs Act 1971.
Where a person has been charged with incitement, the venue for trial is the same as for the offence incited. Therefore, incitement to commit a summary offence is only triable summarily and incitement to commit an indictable only offence may only be tried on indictment.
Attempting to commit an offence
A person is guilty of attempting to commit an offence under the Criminal Attempts Act 1981 (CAA 1981), section 1(1) if s/he does an act which is more than preparatory to the commission of the offence with the intention of committing an offence.
The offence consists of both an act (actus reus) and a mental state (mens rea).
In each case it is a question of fact whether the accused has gone sufficiently far towards the full offence to have committed the actus reus of the attempt. If the accused has passed the preparatory stage, the offence of attempt has been committed and it is no defence that s/he then withdrew from committing the completed offence.
An attempt is an offence of specific intent. It requires an intention to commit an offence to which section 1(4) Criminal Attempts Act 1981 applies.
Recklessness
There are certain offences where recklessness is sufficient mens rea for the full offence. However, for an attempt, the prosecution must prove that the defendant had the intent to commit the offence.
For example, although the full offence of causing criminal damage to property can be committed either intentionally or recklessly, it will only be proper to charge a person with attempting to cause criminal damage with intent to damage property and not simply attempting to cause criminal damage by being reckless.
However, where recklessness as to other circumstances may suffice for the full offence, recklessness may also suffice for the attempt. For example, in Attorney General's Reference No. 3 of 1992 (1994) 2 All ER 121, on a charge of attempted aggravated arson contrary to section 1(2) Criminal Damage Act 1971, it was sufficient for the prosecution to establish a specific intent to cause damage by fire and that the defendant was reckless as to whether life would thereby be endangered. It was not necessary to prove that the defendant intended that the lives of others would be endangered by the damage (see further Archbold 34-92).
A similar situation exists in relation to attempted rape: R v Khan [1990] 2 All ER 783, where recklessness as to whether or not the woman was consenting was held to be sufficient mens rea for the offence of attempted rape, provided the prosecution could prove the intent to have intercourse.
Statutory restrictions
Under section 1(4) of the CAA 1981, there are a number of criminal offences that cannot be the subject of an attempt. These are:
- conspiracy;
- aiding and abetting; and
- assisting an offender or concealing an offence (Archbold 34-84).
Although it is not possible to attempt to aid and abet, it is possible to charge the aiding and abetting of an attempt.
It is not possible by virtue of section 1(4) to charge an attempt to commit a summary offence, unless the particular statute expressly makes it an offence. For example, attempting to drive with excess alcohol is an offence contrary to section 4(1) Road Traffic Act 1988.
Attempting the impossible
A person may fail to carry through the offence because it is not possible for her/him to do so. It is necessary to ascertain why the attempt has not succeeded in order to determine if s/he can still be prosecuted for attempting to commit an offence. There is a crucial distinction between what is factually impossible and what is legally impossible (see further Archbold 34-93).
Even if it may not be possible to commit the full offence because the factual basis is not present, if the facts had been as the defendant believed them to be, s/he can be charged with attempting to commit the offence in question (see R v Shivpuri [1986] 2 All ER 334).
The House of Lords in Shivpuri made it clear that the only kind of impossibility which is relevant to liability is true legal impossibility. Even if the facts were such as the accused believed them to be, then the defendant would still not be committing any offence, having made a mistake about what the law was. If the defendant for example, believed it was an offence to import snuff and does import it, s/he does not commit the offence of attempting to supply a controlled drug, as the importation of snuff is not a crime.
Attempt: Special verdicts
If a defendant is charged with an attempt and the evidence goes to show that s/he in fact completed the offence, s/he may still nevertheless be found guilty of an attempt: Criminal Law Act 1967, section 6(4) for trials on indictment (Archbold 4-455). At common law for summary trials, see Webley v Buxton [1977] 2 All E.R. 595. The defendant cannot also be found guilty of the completed offence.
Conversely, if a person is charged with the completed offence, but can only be shown to have been guilty of an attempt, if being tried on indictment, there can be a conviction by virtue of sections 6(3) and (4) Criminal Law Act 1967. If there is a summary trial in such circumstances, the magistrates cannot convict unless there is an alternative charge of attempting to commit the offence.
Prosecutors should note that section 4(2) of the Criminal Attempts Act 1981 allows such additional information to be tried at the same time without the accused's consent.
Conspiracy
The essential element of the crime of conspiracy is the agreement by two or more people to carry out a criminal act. Even if nothing is done in furtherance of the agreement, the offence of conspiracy is complete.
The actus reus is the agreement. This cannot be a mere mental operation; it must involve spoken or written words or other overt acts. If the defendant repents and withdraws immediately after the agreement has been concluded, s/he is still guilty of the offence.
There must be an agreement to commit the criminal offence, but the motives of the conspirators are irrelevant. For example, in Yip Chiu-Cheung v The Queen (1994) 2 All E.R. 924, the fact that one conspirator was an undercover police officer who only entered the conspiracy to catch drug dealers did not prevent the offence of conspiracy from being committed (see further Archbold 34-12).
For the ingredients of conspiracy, see Archbold 34-4 - 34-17.
Statutory conspiracy
Section 1(1) of the Criminal Law Act 1977 creates and defines the offence of statutory conspiracy (see Archbold 34-2). This offence is triable only on indictment, even if the parties agreed to commit a criminal offence triable only summarily. It is not limited to agreements to commit a statutory crime (agreements to commit the common law offence of murder are charged under this offence).
Common law conspiracies
It is an offence triable only on indictment to agree:
- to defraud, whether or not the fraud amounts to a crime or even a tort;
- to do an act which tends to corrupt public morals or outrage public decency, whether or not the act amounts to a crime (see Archbold 34-32).
The 1977 Act has no part to play in the prosecution of such offences.
An agreement to commit a crime involving fraud or dishonesty is both a statutory conspiracy and a conspiracy to defraud. Prosecutors therefore have a choice, which should be exercised in accordance with the guidance in section 7 of the Code ('Selection of charges').
Conspiracy and substantive offences
The 'Practice Direction (Conspiracy)' ([1977] 1 W.L.R. 537) states that where an indictment contains counts alleging substantive offences and a related conspiracy count, the prosecution must justify the joinder or be required to elect to proceed on the substantive or on the conspiracy count.
Where substantive counts meet the justice of the case, a conspiracy count will rarely need to be added. However, it may be added where the substantive counts do not represent the overall criminality of the defendant's actions.
One of the reasons care must be taken when deciding whether or not to charge conspiracy is the question of confiscation on conviction. For more information, refer to legal guidance on Confiscation and Ancillary Orders, elsewhere in this guidance.
Evidential considerations
The rule that acts and statements of one party to a common purpose may be evidence against the other is particularly relevant to evidential considerations for those charged with conspiracy.
This rule permits the actions and admissions of one party, A, to be used in evidence against the other, B. It is thus an exception to the general rule that B is not to be prejudiced by the acts or statements of another.
In order for the acts or statements of A to be admissible against B, this rule requires:
- that the act or statement of A must be in the course and furtherance of the common purpose; and
- there must be evidence adduced of the existence of the conspiracy and the involvement of both A and B.
Evidence relating to acts or statements by A that were not in furtherance of the common purpose is not admissible against B simply because they have been charged with conspiracy. Similarly, a confession after arrest by A, in which s/he implicates B, is only evidence against A as the common purpose has finished.
Useful references
R v Claydon [2006] 1 Cr.App.R. 20
Archbold 34-70
Attorney General's Reference No. 3 of 1992 (1994) 2 All ER 121
Archbold 34-92
R v Khan [1990] 2 All ER 783
Archbold 34-84
Archbold 34-93
R v Shivpuri [1986] 2 All ER 334
Archbold 4-455
Webley v Buxton [1977] 2 All E.R. 595
Yip Chiu-Cheung v The Queen (1994) 2 All E.R. 924
Archbold 34-12
Archbold 34-4 - 34-17
Archbold 34-2
Archbold 34-32
Practice Direction (Conspiracy)' ([1977] 1 W.L.R. 537)
Confiscation and Ancillary Orders, elsewhere in this guidance