GENERAL INCHOATE OFFENCES
Inchoate offences are offences not complete, targets wrong based on mens rea and some
harmful conduct
Only with a principle offence e.g. attempted murder
Like attempt, conspiracy or assisting or encouraging
Balance of fairness to D and protection to society
o Fairness to D: criminalises where intention to commit future principle offence
o Protection to society: targets conduct of principle offence
Principle offence: offence e.g. murder, theft etc that D is attempting, conspiring, assisting or
encouraging
Principle offender (P): D is assisting or encouraging another to commit a principle offence
Criminal attempts (max sentence mirrors principle offence)
s.1(1) of Criminal Attempts Act 1981 (CAA 1981)
Criminalises at point where D trying to commit principle offence, more than preparatory acts
Irrelevant if fails to commit principle offence e.g. changes mind
Actus Reus Mens rea
Conduct Any action Voluntary
Circumstan Beyond None
ce preparation of
principle offence
Result None None
Ulterior Conduct: intent for conduct for principle
mens rea offence
Circumstance:
Possible attempts: intend/know
circumstances for principle offence, or
where principle offence needs less than
intention or knowledge, be reckless
OR
Impossible attempts: intend/know
circumstances for principle offence
Result: intent to cause results for principle
offence
Principle offences can be all subject to attempt – exceptions
Summary only offences: not indictable or either-way offences (and those not tried in
magistrates). E.g. of exemptions of summary are assault and battery (attempt not applicable)
No liability to conspire or attempts to aid and abet another
Other exceptional cases: e.g. cannot for involuntary manslaughter, as requires intent for result
(death); if intends result then attempted murder
Actus reus of attempts
Conduct beyond merely preparation of completing principle offence – to see if intent was more
than preparatory
Last act test: needs to be the last act before the actual offence is committed e.g. intends to
shoot and kill, attempt after pulling trigger less protection to society, police can act before ‘last
act’
1
, Series of acts test: series of acts constitute as committing principle offence if not interrupted
can find attempt even before pulling trigger of gun e.g. back to buying gun protect society
CAA 1981 test: midway, certain acts leading to principle offence that go beyond mere
preparation - Jones
Jones (1990)
D got into back seat of car with V, and pointed a gun, following a struggle V escaped
unharmed – charged with attempted murder. Guilty as even though D was at least 3 steps away (had
to still remove safety catch, put finger on trigger and pull it), acts capable of being ‘more than merely
preparatory’
Issue is test in practice across offences can be applied an infinite variety of situations can be
inconsistent
Is the actus reus of attempt applied too narrowly?
Gullefer [1990]
D jumped onto dog racing track hoping to get his betting money back – appeal allowed, many further
steps needed e.g. still demand money not convicted
Campbell (1991)
D arrested a yard away from Post Office he intended to rob, with a fake firearm. Charged with
attempted robbery. Appeal allowed, as acts not beyond mere preparation, not entered Post Office or
made demands to cashier
Geddes (1996)
D arrested after being seen in school toilets (without good reason) equipped with knife, rope and
masking tape– not attempted false imprisonment (kidnap) – he was just waiting, but had not carried
out the offence
K (2009)
K asked a boy if he wanted to watch porn with him in his office charged under Sexual Offence Act
2003 (s.12). Not guilty as D had not led V into his office yet.
Law could be said to apply inconsistently
Dagnail (2003)
D grabbed V with intention of raping her and forced her against a fence, police passing by stopped,
no evidence of removing clothes or act of penetration. Guilty of attempted rape
R (2009)
Text message to sex worker asking if any 12 year olds available for sex guilty – attempted s.14 SOA.
Tosti (1997)
D found next to padlock of farm building; cutting equipment found in his car nearby, guilty of
attempted burglary
EXAM: show awareness of inconsistent application
Impossible Attempts
2
, Legal impossibility: D believes action amounts to a crime, when it does not (e.g. act not criminal)
– no attempt
Factual impossibility: D tries to commit crime through inadequate/insufficient means (e.g. gun
not loaded) – always an attempt
*Criminal Attempts Act 1981*
S 1(2): ‘can be guilty of attempting to commit an, even though the facts shows it is impossible.’
Anderton v Ryan (1985)
D bought a video recorder believing it to have been stolen, charged with handling stolen goods.
Appeal allowed, attempts liability extends to cases of factual impossibility, this not one of them
Shivpuri (1987)
D supplied harmless vegetable matter to undercover officers believing it to be heroin or cannabis –
charged with dealing with prohibited drugs held factual impossibility would never undermine
attempts liability, overruling Anderton v Ryan
Post-Shivpuri the legal position is clear: even where D’s acts do not go beyond mere preparation in
fact, they may still satisfy the AR of attempt if they go beyond mere preparation on the facts as D
believed them to be.
Mens Rea of attempts
s.1(1) intent to commit the ‘full offence’
Intends principle offence ulterior mens rea, but does not need to be completed
Whybrow (1951) judge directed jury mens rea for attempted murder same as
murder–intent to kill or cause GBH
With ulterior mens rea, intention to commit the principal offence includes a
conditional intention to do so (will do something if certain conditions happen) – AGs References
(No1 and 2) (1980)
AGs References (Nos 1 and 2) [1980]
D entered building searching for items to steal of valueconditional intent. COA held conditional
intention to steal is still intention.
D must have intent, including conditional intention, to complete actus reus of future principle offence
– but there has been unfairness – Khan
R v Khan (1990)
D and others tried to have sex with V (16) – all were reckless as to her consent. Those who
succeeded were convicted of rape. D was charged with attempted rape, as D, Khan, did not have sex
with her guilty of attempted rape as had intent to do physical part of principle offence, with
intention as to circumstances not important
Criticism of Khan:
difficult to separate elements: conduct, circumstance and result elements but
need to for Khan approach
Lack of clarity for mens rea circumstance element
3
Inchoate offences are offences not complete, targets wrong based on mens rea and some
harmful conduct
Only with a principle offence e.g. attempted murder
Like attempt, conspiracy or assisting or encouraging
Balance of fairness to D and protection to society
o Fairness to D: criminalises where intention to commit future principle offence
o Protection to society: targets conduct of principle offence
Principle offence: offence e.g. murder, theft etc that D is attempting, conspiring, assisting or
encouraging
Principle offender (P): D is assisting or encouraging another to commit a principle offence
Criminal attempts (max sentence mirrors principle offence)
s.1(1) of Criminal Attempts Act 1981 (CAA 1981)
Criminalises at point where D trying to commit principle offence, more than preparatory acts
Irrelevant if fails to commit principle offence e.g. changes mind
Actus Reus Mens rea
Conduct Any action Voluntary
Circumstan Beyond None
ce preparation of
principle offence
Result None None
Ulterior Conduct: intent for conduct for principle
mens rea offence
Circumstance:
Possible attempts: intend/know
circumstances for principle offence, or
where principle offence needs less than
intention or knowledge, be reckless
OR
Impossible attempts: intend/know
circumstances for principle offence
Result: intent to cause results for principle
offence
Principle offences can be all subject to attempt – exceptions
Summary only offences: not indictable or either-way offences (and those not tried in
magistrates). E.g. of exemptions of summary are assault and battery (attempt not applicable)
No liability to conspire or attempts to aid and abet another
Other exceptional cases: e.g. cannot for involuntary manslaughter, as requires intent for result
(death); if intends result then attempted murder
Actus reus of attempts
Conduct beyond merely preparation of completing principle offence – to see if intent was more
than preparatory
Last act test: needs to be the last act before the actual offence is committed e.g. intends to
shoot and kill, attempt after pulling trigger less protection to society, police can act before ‘last
act’
1
, Series of acts test: series of acts constitute as committing principle offence if not interrupted
can find attempt even before pulling trigger of gun e.g. back to buying gun protect society
CAA 1981 test: midway, certain acts leading to principle offence that go beyond mere
preparation - Jones
Jones (1990)
D got into back seat of car with V, and pointed a gun, following a struggle V escaped
unharmed – charged with attempted murder. Guilty as even though D was at least 3 steps away (had
to still remove safety catch, put finger on trigger and pull it), acts capable of being ‘more than merely
preparatory’
Issue is test in practice across offences can be applied an infinite variety of situations can be
inconsistent
Is the actus reus of attempt applied too narrowly?
Gullefer [1990]
D jumped onto dog racing track hoping to get his betting money back – appeal allowed, many further
steps needed e.g. still demand money not convicted
Campbell (1991)
D arrested a yard away from Post Office he intended to rob, with a fake firearm. Charged with
attempted robbery. Appeal allowed, as acts not beyond mere preparation, not entered Post Office or
made demands to cashier
Geddes (1996)
D arrested after being seen in school toilets (without good reason) equipped with knife, rope and
masking tape– not attempted false imprisonment (kidnap) – he was just waiting, but had not carried
out the offence
K (2009)
K asked a boy if he wanted to watch porn with him in his office charged under Sexual Offence Act
2003 (s.12). Not guilty as D had not led V into his office yet.
Law could be said to apply inconsistently
Dagnail (2003)
D grabbed V with intention of raping her and forced her against a fence, police passing by stopped,
no evidence of removing clothes or act of penetration. Guilty of attempted rape
R (2009)
Text message to sex worker asking if any 12 year olds available for sex guilty – attempted s.14 SOA.
Tosti (1997)
D found next to padlock of farm building; cutting equipment found in his car nearby, guilty of
attempted burglary
EXAM: show awareness of inconsistent application
Impossible Attempts
2
, Legal impossibility: D believes action amounts to a crime, when it does not (e.g. act not criminal)
– no attempt
Factual impossibility: D tries to commit crime through inadequate/insufficient means (e.g. gun
not loaded) – always an attempt
*Criminal Attempts Act 1981*
S 1(2): ‘can be guilty of attempting to commit an, even though the facts shows it is impossible.’
Anderton v Ryan (1985)
D bought a video recorder believing it to have been stolen, charged with handling stolen goods.
Appeal allowed, attempts liability extends to cases of factual impossibility, this not one of them
Shivpuri (1987)
D supplied harmless vegetable matter to undercover officers believing it to be heroin or cannabis –
charged with dealing with prohibited drugs held factual impossibility would never undermine
attempts liability, overruling Anderton v Ryan
Post-Shivpuri the legal position is clear: even where D’s acts do not go beyond mere preparation in
fact, they may still satisfy the AR of attempt if they go beyond mere preparation on the facts as D
believed them to be.
Mens Rea of attempts
s.1(1) intent to commit the ‘full offence’
Intends principle offence ulterior mens rea, but does not need to be completed
Whybrow (1951) judge directed jury mens rea for attempted murder same as
murder–intent to kill or cause GBH
With ulterior mens rea, intention to commit the principal offence includes a
conditional intention to do so (will do something if certain conditions happen) – AGs References
(No1 and 2) (1980)
AGs References (Nos 1 and 2) [1980]
D entered building searching for items to steal of valueconditional intent. COA held conditional
intention to steal is still intention.
D must have intent, including conditional intention, to complete actus reus of future principle offence
– but there has been unfairness – Khan
R v Khan (1990)
D and others tried to have sex with V (16) – all were reckless as to her consent. Those who
succeeded were convicted of rape. D was charged with attempted rape, as D, Khan, did not have sex
with her guilty of attempted rape as had intent to do physical part of principle offence, with
intention as to circumstances not important
Criticism of Khan:
difficult to separate elements: conduct, circumstance and result elements but
need to for Khan approach
Lack of clarity for mens rea circumstance element
3
