INCHOATE OFFENCES
Inchoate offences 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
Inchoate offences link to the substantive offence (eg. attempted theft or conspiracy to murder)
Inchoate offences are complete before the commission of the full offence whereas accessorial
liability is complete when the principal commits the full offence
There are many difficulties with criminalising inchoate offences
The actus reus is removed from the harm that is prohibited by the substantive offence
The actus reus is sometimes very wide and covers ‘innocent’ behaviour (an ‘agreement’ or ‘words
of encouragement’)
This therefore means that the mens rea holds a crucial importance and potentially risks
overcriminalisation
Although the mens rea is high (eg. while the substantive offence mens rea of murder allows
for intention to cause GBH, conspiracy to murder only permits intention to kill itself)
The rationale for inchoate offences lies in prevention (follows intelligence-led policing and early-
intervention), however this could potentially come at the cost of retribution (overcriminalisation)
‘The moral difference between those who fail and those who succeed in causing the harm is
too slender to justify exempting the former from criminal liability’ (Horder)
Question of the importance of the actual outcome of a crime (if D has the requisite mens rea
of intention, should it matter that he has not actually committed the crime?)
Attempts
s1, Criminal Attempts Act 1981 (CAA 1981)
Actus reus- ‘an act which is more than merely preparatory to the commission of the offence’
, ‘(The actus reus) ensures that the offence does not extend to criminalising thoughts, but rather
applies only when D has exhibited some physical willingness to bring his criminal intentions to
fruition’ (Smith and Hogan)
eg. attempted theft- D does an act which is merely preparatory to theft as defined in s1
Theft Act 1968
Question as what falls under ‘more than merely preparatory’ (broad approach)
Suggestion in Eagleton [1855] that this meant only the ‘last act’ before the substantive
crime is committed
Interpreted in Stonehouse [1978] to be where ‘the offender must have crossed the Rubicon
and burnt his boats’
However, the Law Com No 102 [1980] rejected limiting attempts to the ‘last act’ and stated
that there was no ‘magic formula’
The actus reus begins ‘when the merely preparatory acts have come to an end and D embarks
upon the crime proper. When that is will depend upon the facts in any particular case’ (Gullefer
[1987])
Question of fact for the jury whether an act is more than merely preparatory (CAA 1981,
s4(3))
However, some such decisions seem hard to reconcile
Campbell [1991]- appeal allowed on the basis that, although he had intended to rob the post
office (was parked outside and carrying an imitation gun and a threatening note), he had
changed his mind but was arrested before he could leave
Jones [1990]- seems to operate differently to Campbell as D was still convicted of attempted
murder when pointing a gun to someone’s head, despite D’s arguments that the safety had
not been released
Geddes [1996]- appeal allowed where D was hiding in school toilets with a large kitchen
knife, rope and masking tape (seemed to show that he was trying to kidnap a child)
The distinction between an act which is merely preparatory and one which amounts to an
attempt is ‘whether, on the evidence, if accepted, could show that D had done an act which
showed that he had actually tried to commit the offence’
The facts thus suggest that lying in wait with prepared weapons and equipment to perform
an offence does not amount to an attempt
However, in Tosti [1997], Ds were convicted after they were seen examining a padlock and
cutting equipment was later found to be connected to them
The dividing line drawn between Geddes and Tosti is weak
K [2009]- D not convicted of attempting to make a child watch a sexual act after asking a
child if he wanted to watch pornography on his laptop in his office
However, in R, D texted a prostitute asking if they knew of any 12-year-old children available
for sex and this was found to constitute an attempt
Ferriter [2012]- decision criticised for substituting the offence of attempted rape for sexual
assault (failed to view rape in a holistic manner, particularly given D had attempted to
remove his trousers when lying on top of V)
Inchoate offences 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
Inchoate offences link to the substantive offence (eg. attempted theft or conspiracy to murder)
Inchoate offences are complete before the commission of the full offence whereas accessorial
liability is complete when the principal commits the full offence
There are many difficulties with criminalising inchoate offences
The actus reus is removed from the harm that is prohibited by the substantive offence
The actus reus is sometimes very wide and covers ‘innocent’ behaviour (an ‘agreement’ or ‘words
of encouragement’)
This therefore means that the mens rea holds a crucial importance and potentially risks
overcriminalisation
Although the mens rea is high (eg. while the substantive offence mens rea of murder allows
for intention to cause GBH, conspiracy to murder only permits intention to kill itself)
The rationale for inchoate offences lies in prevention (follows intelligence-led policing and early-
intervention), however this could potentially come at the cost of retribution (overcriminalisation)
‘The moral difference between those who fail and those who succeed in causing the harm is
too slender to justify exempting the former from criminal liability’ (Horder)
Question of the importance of the actual outcome of a crime (if D has the requisite mens rea
of intention, should it matter that he has not actually committed the crime?)
Attempts
s1, Criminal Attempts Act 1981 (CAA 1981)
Actus reus- ‘an act which is more than merely preparatory to the commission of the offence’
, ‘(The actus reus) ensures that the offence does not extend to criminalising thoughts, but rather
applies only when D has exhibited some physical willingness to bring his criminal intentions to
fruition’ (Smith and Hogan)
eg. attempted theft- D does an act which is merely preparatory to theft as defined in s1
Theft Act 1968
Question as what falls under ‘more than merely preparatory’ (broad approach)
Suggestion in Eagleton [1855] that this meant only the ‘last act’ before the substantive
crime is committed
Interpreted in Stonehouse [1978] to be where ‘the offender must have crossed the Rubicon
and burnt his boats’
However, the Law Com No 102 [1980] rejected limiting attempts to the ‘last act’ and stated
that there was no ‘magic formula’
The actus reus begins ‘when the merely preparatory acts have come to an end and D embarks
upon the crime proper. When that is will depend upon the facts in any particular case’ (Gullefer
[1987])
Question of fact for the jury whether an act is more than merely preparatory (CAA 1981,
s4(3))
However, some such decisions seem hard to reconcile
Campbell [1991]- appeal allowed on the basis that, although he had intended to rob the post
office (was parked outside and carrying an imitation gun and a threatening note), he had
changed his mind but was arrested before he could leave
Jones [1990]- seems to operate differently to Campbell as D was still convicted of attempted
murder when pointing a gun to someone’s head, despite D’s arguments that the safety had
not been released
Geddes [1996]- appeal allowed where D was hiding in school toilets with a large kitchen
knife, rope and masking tape (seemed to show that he was trying to kidnap a child)
The distinction between an act which is merely preparatory and one which amounts to an
attempt is ‘whether, on the evidence, if accepted, could show that D had done an act which
showed that he had actually tried to commit the offence’
The facts thus suggest that lying in wait with prepared weapons and equipment to perform
an offence does not amount to an attempt
However, in Tosti [1997], Ds were convicted after they were seen examining a padlock and
cutting equipment was later found to be connected to them
The dividing line drawn between Geddes and Tosti is weak
K [2009]- D not convicted of attempting to make a child watch a sexual act after asking a
child if he wanted to watch pornography on his laptop in his office
However, in R, D texted a prostitute asking if they knew of any 12-year-old children available
for sex and this was found to constitute an attempt
Ferriter [2012]- decision criticised for substituting the offence of attempted rape for sexual
assault (failed to view rape in a holistic manner, particularly given D had attempted to
remove his trousers when lying on top of V)
