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Inchoate Liability Lecture Notes
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Criminal Law, Inchoate Liability Lecture Notes
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Introduction -D’s criminal liability can attach to a future principal offence which is not completed.
Conduct crimes and not result crimes.
Key inchoate offences are:
Conspiracy
Attempts
Assisting or encouraging (formerly known as ‘incitement’) (not examinable).
Initial Points -
Irrelevant whether the principal offence attempted/conspired ever come about
They must always attach to a future principal offence
Conspiracy -
Agreement is key to this offence - where 2+ people agree to complete an offence (the
offence does not need to be completed).
Any actions/conduct other than the agreement is irrelevant to this offence - attempts it is
required.
There is no liability for conspiracy simpliciter
Statutory conspiracy vs common law conspiracy
This rationale for having an inchoate offence of conspiracy?
Pragmatism, tackling organised crime, effective policing, enhancing security,
psychological aspect.
Statutory Conspiracy -
Governed by the Criminal Law Act 1977, s.1(1) (as amended by the Criminal Attempts Act
1981, s.5(1) provides that:
[I]f a person agrees with any other person or persons that a course of conduct shall
be pursued which, if the agreement is carried out in accordance with their
intentions, either -
(a) will necessarily amount to or involve the commission of any offence or offences
by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the
offence or any of the offences impossible,
he is guilty of conspiracy to commit offence or offences in question.
Conspiracy: Actus Reus -
A. There must be an agreement to a course of conduct (i.e. a future principal offence).
Agreement between two or more persons - D1 and D2
Express or implied - no formalities required but do need a decision to pursue a
criminal course of conduct.
The offence has been completed as soon as the parties have made the agreement -
no need for a contract, only a decision of committing a criminal offence.
R v Walker (1962) Crim LR 458 - D1 discussed with D2 and 3 to steal a pay roll. D1
convicted to conspiracy to steal. They had only discussed this and decided to do so.
Lord Parker proposed that once a discussion has gone past negotiation and becomes
an agreement, and conspiracy has been committed.
Agreements can be oral/written (any means of agreement).
, Multiple future principal offences - more appropriate to treat multiple future offences as
separate conspiracies even if they’ve been made at the same time with the same agreement
with the same defendants.
Multiple defendants - not essential to identify all defendants.
‘wheel’ conspiracies - a core individual that makes agreements with other
individuals coordinating the offence, the other individuals do not have to have
contact with one another, but they are all in the same agreement with the centre
person.
‘chain’ conspiracies - where D1 proposes an offence, D2 agrees, D3 agrees with D2,
D4 agrees with D3 and so on. They may not contact every individual, but they are all
in the same agreement.
Multiple defendants and parallel, but separate, future principal offences - the separate
agreements must be treated as separate conspiracies.
R v Shillam (2013) EWCA Crim 160 - centre defendant (D2) who were selling illegal
drugs. D2 supplied drugs to 3 conspirators. Classed as a single agreement, however,
on appeal, it was actually found that the conspiracies should be classed as separate
agreements to supply varying supply lines to different people.
Excluded Agreement: Parties
Criminal Law Act 1977, s.2(2) makes three specific such exclusions:
Spouses and civil partners, R v Suski (2016) EWCA Crim 24 - the exclusion of
these does not extend to inhabiting partners.
R v Chrastney (1991) 1 WLR 1381 - spouses can be convicted of conspiracy is
a third party is involved.
Children under the minimum age of criminal responsibility (10 years)
The intended victim of the future principal offence - where D1 conspires with
D2 an offence, but D2 is the victim of the offence, neither will be convicted of
conspiracy. Where D1 conspires with D2 and D3 bit D2 is the victim, D1 and
D3 are guilty of conspiracy as a victim is excluded from liability.
Excluded agreements: secondary parties
D may conspire to commit a summary only offence.
Double inchoate liability under conspiracy?
Yet no liability for conspiracy to commit an offence as a secondary party.
R v Kenning (2008) EWCA Crim 1534.
Conspiracy: Actus Reus
B. Necessarily amount to or involve the commission of a crime.
What if the agreement is imprecise?
Needs sufficient detail to establish (a) agreement to do something criminal; and (b)
identification of the offence they have agreed to commit.
e.g., an agreement to put poison in V’s drink also needs intention to kill V.
What if the agreement is conditional?
Conditions as external factors bearing on the agreement to commit a future principal
offence.
R v O’Hadhmaill (1996) Crim LR 509 - D member of IRA in possession of explosives
and planned targets. D argued there was no conspiracy as plan was to not fire where
the IRA ceased fire. Appeal dismissed as conditional intent is enough.
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