Serious Crime Act 2007: Inchoate Offences

Introduction

The Serious Crime Act 2007 reshaped how the law addresses criminal conduct that happens before a full offence is carried out. It modernised inchoate complicity (assisting or encouraging crime), introduced Serious Crime Prevention Orders (SCPOs), and sits alongside the existing law on attempts and conspiracy. Together, these rules allow police and prosecutors to step in earlier, while courts safeguard against unfair overreach by requiring clear mental elements and suitably proximate acts.

This guide explains the main tests for attempt and conspiracy, the new inchoate complicity offences under Part 2 of the 2007 Act, how SCPOs work in practice, and the supporting measures aimed at disrupting serious crime.

What You'll Learn

• The legal test for attempts under the Criminal Attempts Act 1981
• How conspiracy works under the Criminal Law Act 1977, and the debate after Anderson and Yip Chiu-Cheung
• The Serious Crime Act 2007 Part 2 offences of assisting or encouraging (ss 44–46), including s 46 where the specific offence is uncertain
• When “double inchoate” liability may arise and why impossibility is not a defence
• What SCPOs can require, who can apply, and key safeguards
• Practical steps for advising on charging decisions and drafting orders
• Core cases you should know for exams and practice

Core Concepts

Attempts under the Criminal Attempts Act 1981

• Actus reus: Section 1 requires an act that is “more than merely preparatory” to the commission of the offence. Courts have often set a high bar.

  • In Gullefer [1990], the defendant’s conduct stopping a race to void bets was still preparatory.
  • In Geddes (1996), lurking in a school lavatory with equipment for kidnapping was preparatory; there was no confrontation with a potential victim.
  • In Campbell (1991), waiting near a post office with a note and an imitation firearm fell short; the robbery had not begun.

• Why this matters: A strict reading delays liability until very near the finished crime, which can strain public protection. Proposals have included:

  • A separate “criminal preparation” offence to capture earlier conduct.
  • A clearer proximity test so juries assess whether the defendant had moved from planning into execution of the plan.

• Mens rea: Attempts generally require intention as to the conduct/result elements of the target offence.

  • Pace and Rogers [2014] held that where the full offence needs knowledge or belief (e.g., that property is criminal), an attempt needs intention to that element; suspicion is not enough.
  • Khan [1994] accepted recklessness as to circumstances (e.g., lack of consent) for attempted rape where intention to have intercourse was proved.
  • Attorney General’s Reference (No 3 of 1992) suggested that, if an element is “missing” at the attempt stage, intention can be required for that element while recklessness can suffice for others, depending on the offence structure.

• Impossibility: Section 1(2) confirms that factual or legal impossibility is no defence if the defendant intended the offence and did acts more than merely preparatory.

Practical pointer: When assessing an attempt, ask two questions in order:

1. Has the defendant crossed from preparation into execution?
2. Does the mental element match what the law requires for that offence at the attempt stage?

Conspiracy under the Criminal Law Act 1977

• Core rule: Under section 1, conspiracy is an agreement between two or more people that a course of conduct shall be pursued which will necessarily amount to or involve the commission of an offence.

• Mens rea debates:

  • Anderson [1986] suggested it was not necessary for each conspirator to intend the agreement to be carried out, provided they intended to take some part.
  • The Privy Council in Yip Chiu-Cheung [1994] took a stricter position: each party must intend that the agreed offence be carried out.
  • Courts have preferred Yip Chiu-Cheung’s approach in practice, and later cases have read Anderson narrowly.

• Participation can be passive:

  • Siracusa confirms that you can be a conspirator without performing an active role, if you share the intention that the agreement be carried out.

Key takeaway: Focus on the shared plan and whether each alleged conspirator intended the agreement to be implemented, even if their role was minimal.

Inchoate complicity: assisting or encouraging (Serious Crime Act 2007 Part 2)

The 2007 Act replaced the old common law on incitement with three offences:

• Section 44: Intentionally encouraging or assisting the commission of an offence.
• Section 45: Encouraging or assisting with belief that the offence will be committed and that your act will encourage or assist it.
• Section 46: Encouraging or assisting believing that one or more of a number of offences will be committed, without knowing which.

Key points:

• Mens rea: Section 44 requires intention; ss 45–46 require belief that an offence will be committed and that the act will help. “Belief” is stronger than suspicion.
• Uncertain offence (s 46): In Sadique [2013], the Court of Appeal confirmed that the prosecution need not prove which particular offence was in view, provided the defendant believed that at least one would be committed.
• Double inchoate liability: It is possible to assist or encourage an attempt; equally, parties can conspire to commit a Part 2 offence. This reflects the focus on the defendant’s purpose and belief rather than actual harm.
• Impossibility: As with attempts and conspiracy, impossibility is no defence where the required mental element and conduct are proved.

Evidence often includes communications, provision of tools, financing, or logistical support. The statutory “reasonableness” provisions and defences should also be considered where applicable.

Serious Crime Prevention Orders (SCPOs)

Purpose and threshold:

• Part 1 allows the High Court or Crown Court to impose an order where a person has been involved in serious crime and an order would protect the public by preventing, restricting, or disrupting such involvement.

Defining “serious crime”:

• Section 2 (England and Wales) includes offences listed in Schedule 1 (e.g., drug trafficking, serious revenue offences) and other conduct the court considers serious by its nature or consequences. Scotland and Northern Ireland have equivalent provisions.

Scope:

• Section 5 provides a wide menu: restrictions on financial dealings, property transactions, business operations, communications, travel, and the use of goods or services. Terms must be tailored and proportionate.

Safeguards:

• Minimum age 18 (s 6).
• Procedural fairness, including a chance to make representations (s 9).
• Duration, commencement, and variation are regulated (e.g., s 16 on when the order takes effect). Breach is a criminal offence.

Practice note: Orders should be drafted with precision, linked to specific risks, and reviewed periodically to ensure they remain necessary and proportionate.

Other preventive tools connected to serious crime control

• Fraud: The Fraud Act 2006 simplified previous Theft Act offences. It created a single offence of fraud committed by false representation (s 2), failure to disclose (s 3), or abuse of position (s 4), plus offences relating to articles for use in fraud (ss 6–7). Debate continues about the scope of duties for s 3.
• Proceeds of Crime: Amendments associated with the 2007 framework support asset recovery and disruption of criminal finances, reinforcing the role of POCA 2002.
• Police powers: Measures linked to tackling serious crime include targeted stop and search regimes for weapons. Use remains subject to statutory limits and equality duties.

Key Examples or Case Studies

• R v Geddes (1996)

  • Facts: Defendant found in school toilets with materials linked to kidnapping.
  • Held: Not an attempt; his acts were preparatory as there was no contact with a potential victim.
  • Use: Illustrates the line between preparation and execution.

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

  • Facts: Defendants suspected of attempting to handle criminal property.
  • Held: Attempt required intention to the circumstance element (that the property was criminal), not mere suspicion.
  • Use: Highlights the high mental threshold for attempts where the full offence requires knowledge or belief.

• Yip Chiu-Cheung v R [1994] 1 AC 111

  • Facts: Undercover officer and co-conspirator agreed to traffic drugs.
  • Held: Each conspirator must intend the agreement to be carried out.
  • Use: Preferred statement of conspiracy mens rea, narrowing Anderson.

• R v Sadique (No 2) [2013] EWCA Crim 1872

  • Facts: Supply of cutting agents where the precise intended drug offence was unclear.
  • Held: Section 46 does not require the prosecution to pick a specific offence if the defendant believed that one of a list would be committed.
  • Use: Confirms the practical value of s 46 for uncertain but criminally focused support.

Practical Applications

• Attempts

  • Map the act: identify the targeted offence; list steps already taken; ask whether the defendant had entered the “execution” phase (location, proximity to victim/target, use of tools, irreversible steps).
  • Mens rea check: does the full offence require knowledge/belief (e.g., criminal property)? If so, consider Pace and Rogers. For attempted rape, apply Khan (intention to intercourse; recklessness as to consent may suffice).
  • Remember impossibility is not a defence if intention and more-than-preparatory acts are present.

• Conspiracy

  • Confirm an agreement and shared intention that it be carried out. Avoid overreliance on Anderson; use Yip Chiu-Cheung to frame the mental element.
  • Passive conspirators can still be liable (Siracusa), provided they share the intention.

• Assisting or encouraging (SCA 2007 Part 2)

  • Choose the correct charge: s 44 (intent), s 45 (belief an offence will be committed), or s 46 (belief that one of several offences will be committed).
  • Evidence plan: communications, supply chains, finance, logistics, surveillance of targets. Assess whether the defendant believed their act would help.
  • Double inchoate: consider charging where the assistance/encouragement relates to an attempt or conspiracy.
  • Consider statutory defences and reasonableness where applicable.

• SCPOs

  • Threshold: show involvement in serious crime and that the order is necessary and proportionate to protect the public.
  • Drafting: link terms to specific risks (e.g., limits on company directorships, cash thresholds, communications restrictions, travel routes).
  • Procedure: ensure the respondent can make representations; set clear start and end dates; plan for review/variation; warn about criminal liability for breach.

• Wider disruption toolkit

  • Consider parallel financial investigations (POCA 2002), and where relevant, fraud offences under the 2006 Act.
  • Check that any stop and search or data use is within statutory powers and respects equality and privacy duties.

Summary Checklist

• Attempts: prove intention and acts more than merely preparatory (CAA 1981 s 1)
• Apply case law carefully: Gullefer, Geddes, Campbell for actus reus; Pace and Rogers and Khan for mens rea
• Conspiracy: agreement plus intention that it be carried out; Anderson read narrowly, Yip Chiu-Cheung preferred; passive roles can still count (Siracusa)
• Inchoate complicity (SCA 2007): pick s 44, s 45, or s 46 based on intention/belief and certainty about the offence; rely on Sadique for s 46
• Double inchoate liability and impossibility: both permitted where mental element and conduct are proved
• SCPOs: show involvement in serious crime, tailor terms, observe safeguards, warn of criminal breach
• Use POCA asset recovery and fraud offences to support disruption where appropriate

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