Inchoate Liability

Introduction

Inchoate liability covers offences that target steps towards crime before the full offence is completed. It allows the law to intervene early where there is clear intent plus conduct that goes beyond thinking or planning.

In England and Wales, the main inchoate offences are:

• Attempt (Criminal Attempts Act 1981)
• Conspiracy (Criminal Law Act 1977)
• Encouraging or assisting crime (Serious Crime Act 2007, which replaced common law incitement)

Each has its own mental and physical elements. The line between preparation and attempt, the meaning of “agreement” for conspiracy, and the scope of encouraging or assisting are shaped by statute and case law. These rules also interact with counter‑terrorism offences, raising questions about breadth, proof, and fair limits.

What You’ll Learn

• What makes conduct “inchoate” and why the law acts before harm occurs
• The elements of attempt, conspiracy, and encouraging or assisting crime
• How “more than merely preparatory” works in practice for attempts
• What counts as an agreement for conspiracy, and the required intent
• How the Serious Crime Act 2007 organises liability for encouraging/assisting
• Where inchoate liability meets terrorism legislation (TA 2000 and TA 2006)
• Key authorities including Gullefer, Geddes, Campbell, Pace and Rogers, Yip Chiu‑Cheung, Saik, Siracusa, Gul, and Ali
• Practical steps to analyse a problem question or case file

Core Concepts

The Big Picture: Mens Rea and Actus Reus

• Aim: Inchoate liability addresses conduct that signals a real intent to commit a crime, allowing intervention before completion.
• Mental element:
  • Attempt: intention to commit the completed offence (often a higher standard than the completed offence itself).
  • Conspiracy: intention that the agreed course of conduct should be carried out and knowledge of circumstances that are elements of the offence.
  • Encouraging/assisting: intention or belief that an offence will be committed and that the act will encourage or assist.
• Physical element:
  • Attempt requires an act that is more than merely preparatory.
  • Conspiracy requires an agreement between two or more persons.
  • Encouraging/assisting requires an act capable of encouraging or assisting.

Tip: Always identify the target offence first. Then map the inchoate elements to the target offence’s conduct, circumstances, and consequences.

Attempt under the Criminal Attempts Act 1981

• Statutory test: A person is guilty if, with intent to commit an offence, he does an act which is more than merely preparatory to the commission of the offence (s1(1)).
• “More than merely preparatory”:
  • The act must move from preparation towards execution.
  • Cases set useful markers:
    • R v Gullefer [1990]: jumping on a greyhound track to void bets was still preparatory; he had not yet tried to reclaim money.
    • R v Geddes (1996): a man found in school bathrooms with equipment had not confronted or detained anyone; still preparatory.
    • R v Campbell (1991): waiting outside a post office with a threatening note but not entering was still preparatory.
• Mens rea:
  • R v Pace and Rogers [2014]: “intent to commit an offence” means intent to bring about all elements of the target offence. Recklessness about a circumstance often will not do for attempts, even if it would suffice for the completed offence.
  • Earlier authority (R v Khan [1990]) appeared to accept recklessness as to certain circumstances for attempted rape; Pace and Rogers signals a stricter approach under the 1981 Act.
• Impossibility:
  • Attempt liability can arise even if the offence is impossible on the facts as the defendant believed them to be (s1(2)-(3)); confirmed in R v Shivpuri [1986].

Checklist for attempts:

• Identify the target offence precisely.
• Test whether the conduct crossed the preparation threshold.
• Confirm intent covers all elements of the target offence.
• Consider impossibility and whether it helps or hurts the case.

Conspiracy under the Criminal Law Act 1977

• Definition: An agreement between two or more persons to pursue a course of conduct which, if carried out in accordance with their intentions, will necessarily amount to or involve the commission of an offence (s1).
• Actus reus: the agreement itself; no further act is required.
• Mens rea:
  • Intention that the offence be committed (Yip Chiu‑Cheung v R [1995]).
  • Knowledge of any circumstance elements of the target offence (R v Saik [2006]); suspicion is not enough.
• The status of R v Anderson [1986]:
  • Anderson suggested liability where a defendant intended to play a part in the plan, without needing intent that the offence be carried out.
  • This view has been criticised and not followed in later higher‑level authority; current understanding requires intention that the offence be carried out.
• Participation:
  • R v Siracusa (1990): active or supervisory roles suffice; passive acquiescence will not. A person who organises or controls others can be a conspirator.
• Exemptions and limits:
  • The 1977 Act contains specific exceptions (e.g., you cannot conspire with a child under the age of criminal responsibility; there are restrictions involving the intended victim). Check s2 CLA 1977.

Practical pointers:

• Look for clear evidence of agreement: messages, meetings, joint planning.
• Prove shared intention that the offence be carried out, not mere association.
• For circumstance elements (e.g., property being criminal), probe for knowledge.

Encouraging or Assisting Crime under the Serious Crime Act 2007

• Replacement of incitement: The 2007 Act abolished common law incitement and created three statutory offences:
  • s44: Intentionally encouraging or assisting the commission of an offence.
  • s45: Encouraging or assisting believing the offence will be committed and that the act will encourage or assist.
  • s46: Encouraging or assisting one or more offences, believing that one or more will be committed.
• Actus reus: Doing an act capable of encouraging or assisting the commission of an offence (widely defined; includes communications and providing tools or information).
• Mens rea varies by section:
  • s44 requires intention that the offence be committed.
  • s45 and s46 use a belief standard (lower than intent), coupled with belief that one’s act will encourage or assist.
• Defence:
  • s50 “acting reasonably” defence: available where, in all the circumstances known or reasonably believed to exist, it was reasonable to act as the defendant did.
• Double inchoate liability:
  • The Act expressly allows encouraging or assisting another inchoate offence (e.g., assisting an attempt or conspiracy).

Practice tip:

• Preserve evidence of the communication or assistance and the defendant’s state of mind at the time (what they knew, intended, or believed).

Overlap and Interaction

• Prosecutors often have choices: attempt vs conspiracy vs encouraging/assisting. Charging will reflect the evidence of agreement, steps taken, and mental state.
• Double inchoate liability is recognised under the 2007 Act for encouraging/assisting other inchoate offences.
• “Attempt to conspire” is rarely, if ever, used and is generally avoided; focus instead on the clearest charge supported by the facts.
• Concurrent sentences are common where multiple inchoate counts arise from the same conduct.

Terrorism‑Related Provisions

• Preparation: Terrorism Act 2006, s5 creates an offence of preparing acts of terrorism. It does not require a fully identified target offence and is often broader than traditional attempt rules.
• Publications: Terrorism Act 2006, s2 criminalises dissemination of terrorist publications. The Court of Appeal in R v Ali [2011] considered the provision compatible with Article 10 ECHR, though it has drawn scrutiny in human rights reporting.
• Information offences: Terrorism Act 2000, s58 covers collecting or possessing information of a kind likely to be useful to a person committing or preparing an act of terrorism. There is a “reasonable excuse” defence; the offence does not require intent to assist terrorism.
• Definition: The Supreme Court in R v Gul [2013] confirmed a wide reading of “terrorism” under TA 2000, which has attracted academic and civil liberties debate.

Examined together, these show how inchoate liability operates in settings where early intervention is a policy priority, raising recurring issues about breadth, proof, and defences.

Key Examples or Case Studies

• R v Gullefer [1990] 1 WLR 1063

  • Context: Defendant jumped onto a racetrack hoping to void bets.
  • Key point: Still preparatory; he had not yet tried to reclaim money.
  • Application: Ask whether the defendant has begun executing the offence, not merely setting the scene.

• R v Geddes (1996) 160 JP 697

  • Context: Man found in a school with equipment but no approach to a pupil.
  • Key point: Not beyond preparation.
  • Application: Look for confrontation with the victim or other execution steps.

• R v Campbell (1991) 93 Cr App R 350

  • Context: Defendant with a threatening note near a post office but did not enter.
  • Key point: Still preparatory.
  • Application: Physical proximity helps but is not decisive; entry and execution steps matter.

• R v Pace and Rogers [2014] EWCA Crim 186

  • Context: Handling alleged stolen metal; police “sting” meant property was not in fact stolen.
  • Key point: Attempt requires intent to commit all elements of the target offence; suspicion or recklessness is insufficient.
  • Application: For circumstance elements (e.g., property being “stolen”), prove intent that those circumstances obtain.

• Yip Chiu‑Cheung v R [1995] 1 AC 111 (PC)

  • Context: Undercover operation; issue was whether conspirators must intend the offence to be carried out.
  • Key point: Conspiracy requires intention that the offence be carried out.
  • Application: Agreement plus mere participation intention is not enough without the shared aim that the offence occurs.

• R v Saik [2006] UKHL 18

  • Context: Conspiracy to launder money; whether “suspicion” sufficed.
  • Key point: Knowledge of necessary circumstance elements is required; suspicion is not enough.
  • Application: Prove knowledge where the target offence includes a circumstance element (e.g., property being criminal).

• R v Siracusa (1990) 90 Cr App R 340

  • Context: Drug importation conspiracy; roles varied from organisers to facilitators.
  • Key point: Supervisory or managerial participation can amount to conspiracy; passive presence does not.
  • Application: Show involvement in the agreement, including directing others.

• R v Shivpuri [1986] AC 1

  • Context: Defendant believed he was dealing with drugs; in fact, it was harmless.
  • Key point: Factual impossibility is no defence to attempt where the defendant believes the facts would make the conduct criminal.
  • Application: Focus on the defendant’s belief about the facts at the time.

• R v Gul [2013] UKSC 64

  • Context: Definition of “terrorism” under TA 2000.
  • Key point: Broad definition upheld by the Supreme Court.
  • Application: Conduct supporting foreign armed groups may fall within terrorism depending on the facts and statutory wording.

• R v Ali [2011] EWCA Crim 1260

  • Context: Dissemination of terrorist publications (TA 2006 s2) and Article 10 ECHR.
  • Key point: Provision upheld as lawful and proportionate by the Court of Appeal.
  • Application: Consider context, intent/belief, and available defences.

Practical Applications

• For attempts:

  • Pin down the target offence first.
  • Map the sequence: planning → preparation → execution. Use case markers to judge when the execution stage begins.
  • Prove intention to bring about all elements. If the target offence allows recklessness, do not assume that carries across to attempt.

• For conspiracy:

  • Prove a real agreement (communications, planning records, roles).
  • Show intention that the offence be carried out and knowledge of any necessary circumstances (Saik).
  • Consider statutory exceptions (e.g., involvement of the intended victim or a child under criminal age).

• For encouraging or assisting:

  • Preserve evidence of acts capable of encouraging or assisting (messages, manuals, tools, finance).
  • Select the correct section (s44 intent vs s45/s46 belief).
  • Assess the s50 “acting reasonably” defence in light of known or reasonably believed circumstances.

• Overlap and charging:

  • Choose the simplest charge that matches the proof.
  • Avoid over‑charging where multiple inchoate offences cover the same conduct; concurrent counts may be appropriate but keep focus.

• Terrorism context:

  • For TA 2006 s5, expect broader preparatory conduct to be in scope; identify intent and steps taken.
  • For TA 2006 s2 and TA 2000 s58, evaluate context, content, and available defences (Article 10 arguments; “reasonable excuse”).

• Exam technique:

  • State the statutory test.
  • Apply leading cases with short, targeted reasoning.
  • Keep policy points brief: early intervention vs fair limits and proof.

Summary Checklist

• Define the target offence before analysing the inchoate offence.
• Attempt: show “more than merely preparatory” plus intent to commit all elements.
• Conspiracy: prove agreement, intention that the offence be carried out, and knowledge of required circumstances.
• Encouraging/assisting: match facts to s44 (intent) or s45/46 (belief) and test the s50 defence.
• Use key cases: Gullefer, Geddes, Campbell, Pace and Rogers, Yip Chiu‑Cheung, Saik, Siracusa, Shivpuri, Gul, Ali.
• In terrorism cases, consider breadth, proof, and human rights arguments.
• Where multiple inchoate offences appear, select the clearest fit and avoid unnecessary duplication.

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