Inchoate offences


After reading this chapter you should be able to:

Understand the law on attempts

Understand the law on conspiracy

Understand the law on assisting or encouraging crime

Understand the rules on impossibility

Analyse critically the rules on inchoate liability

Apply the law to factual situations to determine whether there is liability for an inchoate offence

6.1 Inchoate offences

Inchoate offences refers to those offences where D has not actually committed a ‘substantive’ crime, such as murder, rape, theft or burglary, but D has done one of the following three things:

made an attempt to do so (that is, D has tried to commit the crime but has failed, for some reason, to complete it)

entered into a conspiracy with at least one other person to do so (that is, D has entered into an agreement that a criminal offence will be committed)

assisted or encouraged someone else to commit a crime

‘Inchoate’ literally means ‘at an early stage’. Inchoate offences are designed to allow for liability to be imposed on those who have taken some steps towards the commission of an offence (whether the crime would have been committed by them commit a criminalpersonally or by someone else). It allows the police to intervene at an early and make arrests before a substantive crime has occurred, thus making a significant contribution towards public safety. Of course, where no substantive offence has been committed, obtaining sufficient evidence that an attempt or a conspiracy has actually occurred can be difficult. As we shall see, the point at which D can be regarded as having committed an attempt has troubled courts in England for many years (and the issue cannot be said to be completely settled even now). Moreover, in a modern democracy where freedom of expression is protected by law (art 10 of the European Convention on Human Rights, incorporated into English law by the Human Rights Act 1998), the criminal law has to strike the appropriate balance between the individual’s right to free speech and society’s interest in ensuring that those who make agreements with or encourage others to commit crimes are punished.

6.2 Attempt

The offence of attempt existed at common law but is now regulated by statute, the Criminal Attempts Act 1981.


‘1(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.’

6.2.1 Actus reus of attempt

The 1981 Act imposes liability on those who do ‘an act which is more than merely preparatory to the commission of the offence’. Although the judge must decide whether there is evidence on which a jury could find that there has been such an act, the test of whether D’s acts have gone beyond the merely preparatory stage is essentially a question of fact for the jury (s 4(3) of the 1981 Act). If the judge decides there is no such evidence, he must direct them to acquit; otherwise he must leave the question to the jury, even if he feels the only possible answer is guilty.

‘More than merely preparatory’

What does this phrase mean? The first thing to note is that the test looks forward from the point of preparatory acts to see whether D’s acts have gone beyond that stage. Prior to the 1981 Act there were a number of common law tests, one of which, the ‘proximity’ test, looked backwards from the complete substantive offence to see whether D’s acts were so ‘immediately connected’ to the actus reus to justify the imposition of liability for an attempt. Thus, in Eagleton (1855) Dears 515, it was said that:


‘Some act is required and we do not think that all acts towards committing a [criminal offence] are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are.’

In the years immediately following the 1981 Act, the courts tended to refer back to some of the common law tests (which were not expressly excluded by the 1981 Act and so had persuasive value). Hence, in Widdowson (1986) 82 Cr App R 314, the Court of Appeal adopted Lord Diplock’s ‘Rubicon’ test formulated in DPP v Stonehouse (1978) AC 55 as representing the law under the Act. Lord Diplock had said:


‘Acts that are merely preparatory to the commission of the offence, such as, in the i nstant case, the taking out of insurance policies are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so. [D] must have crossed the Rubicon and burnt his boats.’

Shortly afterwards, in Boyle and Boyle (1987) Crim LR 111, the Court of Appeal referred to a test devised by Stephen known as the ‘series of acts’ test. According to this test, ‘an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted’. As a result the Court of Appeal upheld the appellants‘ convictions of attempted burglary (they had been found by a policeman standing near a door, the lock and one hinge of which were broken). However, in Gullefer (1990) 3 All ER 882, Lord Lane CJ tried to devise a new test that incorporated elements of the proximity, Rubicon and series of acts tests. According to this test D has committed an attempt when he has ’embarked on the crime proper‘. Lord Lane said:


‘The words of the Act seek to steer a midway course. They do not provide … that the Eagleton test is to be followed, or that, as Lord Diplock suggested, [D] must have reached a point from which it was impossible for him to retreat before the actus reus of an attempt is proved. On the other hand, the words give perhaps as clear a guidance as is possible in the circumstances on the point of time at which Stephen’s “series of acts” begins. It begins when the merely preparatory acts have come to an end and [D] embarks upon the crime proper. When that is will depend of course upon the facts in any particular case.’


Gullefer (1990) 3 All ER 882

D had placed an £18 bet on a greyhound race. Seeing that his dog was losing, he climbed onto the track in front of the dogs, waving his arms and attempting to distract them, in an effort to get the stewards to declare ‘no race’, in which case he would get his stake back. D was unsuccessful in this endeavour but he was prosecuted for attempted theft and convicted. The Court of Appeal quashed his conviction: D’s act was merely preparatory. In order to have ‘embarked on the crime proper’ the Court thought that D would have to go to the bookmakers and demand his money back.

In Jones (1990) 3 All ER 886, Taylor LJ agreed with Lord Lane CJ in Gullefer (1990).


Jones (1990) 3 All ER 886

D had been involved for some time in a relationship with a woman, X. When he discovered that she had started seeing another man, V, and that she no longer wanted to continue their relationship, D bought a shotgun and shortened the barrel. One morning, he went to confront V as the latter dropped his daughter off at school. D got into V’s car, wearing overalls and a crash helmet with the visor down and carrying a bag. He took the sawn-off shotgun (which was loaded) from the bag and pointed it at V. He said, ‘You are not going to like this’. At this point, V grabbed the end of the gun and pushed it sideways and upwards. There was a struggle during which V threw the gun out of the window. D was charged with attempted murder. He was convicted and the Court of Appeal upheld his conviction. Taylor LJ said that obtaining the gun, shortening the barrel, loading the gun and disguising himself were clearly preparatory acts. However, once D had got into V’s car and pointed the loaded gun, then there was sufficient evidence to leave to the jury.

In the light of the expansive approach seen in Gullefer and Jones, the next Court of Appeal judgment, Campbell (1991) Crim LR 268, may be regarded as somewhat narrow. D had been arrested by police when, wearing a motorcycle crash helmet and armed with an imitation gun, he had approached to within a yard of a post office door. The Court of Appeal quashed his conviction for attempted robbery. Watkins LJ thought that there was no evidence on which a jury could ‘properly and safely’ have concluded that his acts were more than merely preparatory. Too many acts remained undone and those that had been performed — making his way from home, dismounting from his motorbike and walking towards the post office door — were clearly acts which were ‘indicative of mere preparation’.


Applying the law

What should the police have done in order to ensure D’s conviction for attempted robbery? Wait until D had entered the post office? Wait for him to approach the counter? Wait for him to make a demand for money?

The next case was Attorney-General’s Reference (No 1 of 1992) (1993) 2 All ER 190. D had been charged with the attempted rape of a young woman, V, but had been acquitted after the trial judge directed the jury to acquit. The Court of Appeal, however, held that there was sufficient evidence on which the jury could have rightly convicted. Lord Taylor CJ stated:


‘It is not, in our judgment, necessary, in order to raise a prima facie case of attempted rape, to prove that D … had necessarily gone as far as to attempt physical penetration of the vagina. It is sufficient if … there are proved acts which a jury could properly regard as more than merely preparatory to the commission of the offence. For example, and merely as an example, in the present case the evidence of V’s distress, of the state of her clothing, and the position in which she was seen, together with D’s acts of dragging her up the steps, lowering his trousers and interfering with her private parts, and his answers to the police, left it open to a jury to conclude that D had the necessary intent and had done acts which were more than merely preparatory. In short that he had embarked on committing the offence itself.’

In Geddes (1996) Crim LR 894, a case of attempted false imprisonment, the Court of Appeal offered another formulation for identifying the threshold, by postulating the following question: was D ‘actually trying to commit the full offence’? Lord Bingham CJ stated:


‘The line of demarcation between acts which are merely preparatory and acts which may amount to an attempt is not always clear or easy to recognise. There is no rule of thumb test. There must always be an exercise of judgment based on the particular facts of the case. It is, we think, an accurate paraphrase of the statutory test and not an illegitimate gloss upon it to ask whether the available evidence, if accepted, could show that [D] has done an act which shows that he has actually tried to commit the offence in question, or whether he has only got himself in a position or equipped himself to do so.’


Geddes (1996) Crim LR 894

D was discovered by a member of staff in the boys’ toilet of a school. He ran off, leaving behind a rucksack, in which was found various items including string, sealing tape and a knife. He was charged with attempted false imprisonment of a person unknown. The judge ruled that there was evidence of an attempt and the jury convicted. On appeal, the conviction was quashed. Although there was no doubt about D’s intent, there was serious doubt that he had gone beyond the mere preparation stage. He had not even tried to make contact with any pupils.

More recent cases have continued to apply the test in Geddes. In Tosti and White (1997) EWCA Crim 222; (1997) Crim LR 746, D and E provided themselves with oxyacetylene equipment, drove to a barn which they planned to burgle, concealed the equipment in a hedge, approached the door and examined the padlock using a light, as it was nearly midnight. They then became aware that they were being watched and ran off. D claimed that they had gone to the barn to try to find water because their car engine was overheating; E admitted that they were on a reconnaissance mission with a future aim to burgle the barn. The Court of Appeal, applying Geddes, upheld their convictions of attempted burglary. There was evidence that D and E were trying to commit the offence. Beldam LJ said that the question was whether D and E ‘had committed acts which were preparatory, but not merely so — so that it could be said the acts of preparation amounted to acts done in the commission of the offence. Essentially the question is one of degree: how close to, and necessary for, the commission of the offences were the acts which it was proved that they had done.’

In Nash (1998) EWCA Crim 2392; (1999) Crim LR 308, D left three letters addressed to ‘Paper boy’ in a street in Portsmouth. When opened, two were found to contain invitations to engage in mutual masturbation and/or oral sex with the author; the third, signed ‘JJ’, purported to offer work with a security company. At the instigation of the police a paper boy went to meet the writer of the third letter in a local park. There he met D, who asked him if he was looking for ‘JJ’. D was arrested and convicted of three counts of attempting to procure an act of gross indecency. On appeal, it was argued that there was no case to answer with regard to the third letter, which was merely a preparatory act. The Court of Appeal confirmed the conviction with respect to the first two letters but allowed the appeal, following Geddes (1996), with respect to the third. Otton LJ said that the third letter ‘was not sufficiently approximate to the act of procurement to amount to an attempt’. Otton LJ described Geddes as a ‘helpful decision [that] illustrates where and how the line should be drawn’.

More than merely preparatory to what?

It is important to be clear exactly what it is that D needs to have gone beyond preparing for. This entails a clear understanding of the actus reus as opposed to the mens rea of the substantive offence. In Toothill (1998) Crim LR 876, D unsuccessfully appealed against his conviction of attempted burglary. V had seen D standing in her garden at approximately 11 pm, apparently masturbating. She called the police and D was arrested. A knife and a glove were found in V’s garden and a condom was found in D’s pocket. D admitted knocking on V’s door but claimed that he was lost and seeking directions. D was convicted and appealed on the ground that evidence of an attempt to enter V’s home was insufficient; there had to be evidence of an attempt to commit rape as well. The Court of Appeal dismissed the appeal. The actus reus of burglary in s 9(1)(a) of the Theft Act 1968 is simply entering a building as a trespasser: there is no requirement in the actus reus that D actually rape anyone (indeed there is no requirement that anyone actually be in the building). The actus reus of attempted burglary was therefore doing an act which was more than merely preparatory to that entry. On the facts, there was evidence that D had gone beyond the preparatory stage, by actually knocking on V’s door. (Note: the substantive offence of entering a building as a trespasser with intent to rape, contrary to s 9(1)(a) of the Theft Act 1968, was repealed by the Sexual Offences Act 2003. The facts in Toothill would now give rise to a charge of attempted trespass with intent to commit a sexual offence, contrary to s 63 of the SOA 2003.)


More than merely preparatory: key facts

Case Offence attempted Test proposed
Gullefer (1990) Theft ‘embarks upon the crime proper’ — Lord Lane CJ
Jones (1990) Murder
Campbell (1991) Robbery
Att-Gen’s Ref (No 1 of 1992) (1993) Rape ‘embarked on committing the offence itself’ — Lord Taylor CJ
Geddes (1996) False imprisonment ‘actually tried to commit the offence in question’ — Lord Bingham CJ
Tosti and White (1997) Burglary ‘had started upon the commission of the offence’ — Beldam LJ
Nash (1999) Procuring gross indecency

6.2.2 Mens rea of attempt

The essence of the mens rea in attempt cases is D’s intention. In Whybrow (1951) 35 Cr App R 141, the Court of Appeal held that, although on a charge of murder, an intention to cause grievous bodily harm (GBH) would suffice, where attempted murder was alleged, nothing less than an intent to kill would do: ‘the intent becomes the principal ingredient of the crime’. The Nedrick (1986) 3 All ER 1/Woollin (1998) 3 WLR 382 direction on when a jury may find that D intended a result based on D’s foresight of virtually certain consequences has been applied to attempts by the Court of Appeal in Walker and Hayles (1990) Crim LR 44.

Conditional intent

Attempted theft and burglary cases have caused difficulties when it comes to framing the indictment. The problem is that most burglars, pickpockets, etc. are opportunists who do not have something particular in mind. The case of Easom (1971) 2 All ER 945 illustrates the problem. D had been observed rummaging in a handbag belonging to a plain-clothes policewoman. He did not take anything and was subsequently charged with the theft of the handbag and its contents (a purse, notebook, tissues, cosmetics and a pen). He was convicted, but the Court of Appeal quashed his conviction following a misdirection. The Court also declined to substitute a conviction of attempted theft of those articles: there was no evidence that D intended to steal those specific items. In Attorney-General’s Reference (Nos 1 and 2 of 1979) (1979) 3 All ER 143, the Court of Appeal provided a solution to the problem: in such cases D should be charged with an attempt to steal ‘some or all of the contents’ of the handbag.

Relevance of recklessness

Where an attempt is charged, it may be possible to obtain a conviction even though D was reckless as to some of the elements of the actus reus. This is illustrated in Attorney-General’s Reference (No 3 of 1992) (1994) 2 All ER 121.


Attorney-General’s Reference (No 3 of 1992) (1994) 2 All ER 121

A petrol bomb had been thrown from a moving car, narrowly missing a parked car in which four men were sitting and two other men standing nearby, and smashing into a wall. Those responsible for throwing the bomb were charged with attempted aggravated arson, the court alleging that, while the criminal damage was intentional, they had been reckless as to whether life would be endangered. At the end of the Crown case, the judge ruled no case to answer. He ruled that an attempted crime could not be committed without intent. It was impossible to intend to be reckless; therefore it had to be shown D both intended to damage property and to endanger life. The Court of Appeal held this was wrong: it was enough that D intended to damage property, being reckless as to whether life would be endangered.

In Khan (1990) 2 All ER 783, four men had been convicted of the attempted rape of a 16-year-old girl. All four had tried to have sex with her, unsuccessfully. Their convictions were upheld despite the trial judge’s direction that, on a charge of attempted rape, it was only necessary for the Crown to prove that they had intended to have sex, knowing that the girl was not consenting, or not caring whether she consented or not.

6.2.3 Impossibility

If a crime is impossible, obviously no one can be convicted of actually committing it; but it does not follow that no one can be convicted of attempting to commit it. There may be an attempt where D fails to commit the substantive crime, because he makes a mistake or is ignorant as to certain facts. The crime may be:

physically impossible (eg D attempts to pick V’s pocket but, unknown to D, the pocket is in fact empty; D attempts to murder V by stabbing him with a dagger but, unknown to D, V died that morning of natural causes); or

legally impossible (eg D handles goods, believing them to be stolen, when they are not in fact stolen).

There are also situations where the crime is physically and legally possible but, in the actual circumstances, because of the inadequate methods D plans to use, or does use, it is impossible to commit the substantive offence (eg D attempts to break into a three-inch-thick titanium steel safe using a plastic spoon). At common law, there was no liability for attempt if the crime attempted was physically or legally impossible; only if D used methods that were simply inadequate to commit the substantive offence could D be liable. This was seen in White (1910) 2 KB 124, where D was convicted of attempted murder after giving his mother an insufficient dose of poison. (Had he given her sugar instead, he would have been acquitted.) This rule was confirmed as recently as 1975 by the House of Lords in Haughton v Smith (1975) AC 476. However, s 1 of the Criminal Attempts Act 1981 was intended to make all three examples of impossibility capable of leading to liability:


‘(1) …

(2) A person may be guilty of attempting to commit an offence to which this sec-tion applies even though the facts are such that the commission of the offence is impossible.

(3) In any case where —

(a) apart from this subsection a person’s intention would not be regarded as having amounted to an intention to commit an offence; but

(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,

then, for the purposes of subsection (1) … he shall be regarded as having had an intention to commit an offence.’

However, despite the new provisions above, in Anderton v Ryan (1985) AC 560 the House of Lords decided that the 1981 Act had not been intended to affect the situations of physical impossibility. Lord Roskill said that ‘if the action is innocent and [D] does everything he intends to do, s 1(3) does not compel the conclusion that erroneous belief in the existence of facts which, if true, would have made his completed act a crime makes him guilty of an attempt to commit that crime’. This decision was overruled less than a year later. In Shivpuri (1987) AC 1, Lord Bridge said that:


‘The concept of “objective innocence” is incapable of sensible application in relation to the law of criminal attempts. The reason for this is that any attempt to commit an offence which involves “an act which is more than merely preparatory to the commission of the offence” but which for any reason fails, so that in the event no offence is committed, must ex hypothesi, from the point of view of the criminal law be ’objectively innocent‘. What turns what would otherwise … be an innocent act into a crime is the intent of the actor to commit an offence.’


Shivpuri (1987) AC 1

D was persuaded to act as a drugs courier. He was given instructions to receive drugs j and transport them somewhere else. D duly collected a suitcase which he believed contained either heroin or cannabis. The suitcase contained several packages of white powder,; one of which D took to the delivery point. There, he was arrested and was subsequently i charged with attempting to be ‘knowingly concerned in dealing in prohibited drugs’. This: was despite the fact that the white powder was not drugs at all but perfectly legal snuff; or some similar harmless vegetable matter. D was nevertheless convicted and the Court of; Appeal and House of Lords upheld his conviction.

Shivpuri was followed in Jones (2007) EWCA Crim 1118; (2007) 3 WLR 907, in which D was convicted of attempting to incite a child under 13 to engage in sexual activity, contrary to s 8 of the Sexual Offences Act 2003. On the facts, the offence was impossible, as the ‘child’ whom he thought he was inciting was actually an undercover policewoman. The Court of Appeal, however, held that he had rightly been convicted of attempting to commit this impossible offence.


Jones (2007) EWCA Crim 1118; (2007) 3 WLR 907

D wrote graffiti on the walls of train and station toilets seeking girls aged 8 to 13 for sex in return for payment and requesting contact via his mobile phone. A journalist saw one of the messages and contacted the police who began an operation using an undercover policewoman pretending to be a 12-year-old girl called ‘Amy’. D sent several texts to ‘Amy’ in which he tried to persuade her to engage in sexual activity. Eventually, ‘Amy’ and D agreed to meet at a Burger King in Brighton, where he was arrested. At his trial, D pointed out that, as ‘Amy’ didn’t exist, he had not intended to incite any actual person under the age of 13. The judge rejected the submission. D changed his plea to guilty and appealed, but the Court of Appeal upheld his conviction.

It has been argued that, in cases like Shivpuri and Jones, D is being punished solely for his criminal intention. However, this overlooks the fact that, for an attempt, there must be a ‘more than merely preparatory’ act. Furthermore, defendants like Shivpuri and Jones who intend to smuggle drugs or who intend to have sex with young girls (and are prepared to act on their intentions) are dangerous people; their prosecution and conviction is in the public interest. In many cases, the ‘objectively innocent’ nature of the acts means that the attempt will not come to light. But, in those cases where it does, D should not escape punishment.

6.2.4 Excluded offences

Section 1(4) of the 1981 Act excludes attempts to commit the following:


aiding, abetting, counselling or procuring the commission of an offence (except where this amounts to a substantive offence, eg complicity in another’s suicide contrary to s 2(1) Suicide Act 1961, as amended by s 53 of the Coroners and Justice Act 2009)

Moreover, there must be ‘an act’, so it is impossible to attempt to commit a crime which can only be committed by omission (eg failing to provide a breath test), or to attempt to commit a result crime by omitting to act when under a duty to act solely on that basis. However, in most cases there would presumably be some act to which liability could be attached.

Because intent is essential, where a crime cannot be committed intentionally, such as gross negligence manslaughter and reckless manslaughter (see Chapter 10), D cannot be liable for an attempt to commit it. There is therefore no offence in English law of ‘attempted manslaughter’.

6.2.5 Successful attempts

Is failure essential to successful conviction for attempt? A doctrine of ‘merger’ existed at common law, whereby an attempt blended in with the substantive crime, if committed. This was abolished, for indictable offences, by s 6(4) Criminal Law Act 1967. Now D may be convicted of an attempt, notwithstanding that he is also shown to be guilty of the completed offence.

6.2.6 Reform

In September 2007 the Law Commission (LC) published a Consultation Paper Conspiracy and Attempts (Paper No 183), in which they recommended the following (amongst other things):

The present offence of attempt should be abolished and replaced with two new offences.

First, a new attempt offence, limited to the situation where D reaches the last acts needed to commit the substantive offence.

Second, a new offence of ‘criminal preparation’.

Both new offences would require proof of intention to commit the substantive offence (murder, robbery, etc). Intention could, as at present, be either direct or oblique intent. Conditional intent would continue to suffice.

Both new offences would carry the same (maximum) penalty as the substantive offence.

It should be possible to commit either of the new offences by omission.

The LC is trying to resurrect the ‘Last Act’ test as set out in Eagleton (1855), which will significantly narrow the scope of the offence of attempt. It would not be possible, for example, to say that D in Jones (1990) would definitely be guilty of attempted murder under the proposed new attempt offence. In pointing the shotgun at V, he had gone beyond the ‘merely preparatory’ stage, but had he reached the ‘last act’ stage? However, if not, D could instead be convicted of ‘preparing to commit murder’.