English criminal law not only provides for punitive detention but also acts as a mechanism to enforce standards of conduct and to intervene before any actual harm is done. A pre-planned crime travels through four stages namely-

1. Formation of the intention to commit it;
2. Preparation for the commission of the contemplated crime;
3. Attempt to commit it;
4. Commission of the intended crime

English criminal law in any case does not punish mere contemplation of an offence, howsoever evil it may be while punishes preparations and attempt for the commission of a few serious offences called Inchoate offences. Inchoate in the literal sense means something that is just begun, incipient, in an initial stage, imperfect or underdeveloped. Inchoate offences are not the chief or prime offence aimed at by the offender rather are the steps taken or the act done in the direction of achieving or giving effect to the main criminal act intended. It contains actions falling short of the consummated crime, but which come close enough to threaten public order. In England, there are three forms of Inchoate offences which are ‘Attempt’, ‘Encouraging and Assisting’ and ‘Conspiracy’

Attempt

It is made punishable as it takes the perpetrator close to the contemplated crime and there is a greater degree of determination in attempt as compared to mere preparation.

The definition of attempt is given in the Criminal Attempts Act, 1981 and can be said to be a substantial step from preparation to perpetration with specific intent. Section 1(1) defines attempt as ‘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.’

R v. Campbell [I]

Campbell was found roaming in the vicinity of a post office carrying something heavy. This area was under the surveillance of the police as they were informed that a robbery is to be committed at the post office. Campbell was seen moving towards the bank carrying something that appeared like a gun but subsequently went away from the post office. After thirty minutes he returned and again went toward the post office but was arrested in the meantime along with a gun.

Campbell contended that at the time he was arrested he had already changed his mind and thus did not enter the post office previously and was arrested before he could leave the place for the second time.

Held: Court held that while it is evident that the defendant had the intention to rob the bank but this act could not make it clear whether it crossed the stage of mere preparation as he did not go inside the post office where the crime was to be committed thus his appeal was allowed.

Section 1(2) provides that a person can still be guilty of attempting an offence even if committing the offence itself was an ‘impossible act’. This is justified as the aim is to prosecute the ‘intention’ in the first place to commit the criminal offence, as well as committing a ‘more than merely preparatory act’.

R v. Shivpuri [II]

The Appellant was arrested while in possession of a suitcase that he believed to contain prohibited drugs. After his arrest, he revealed to the officers that he was dealing with prohibited drugs. However, the substance in the suitcase turned out to be some harmless vegetable matter and not drugs. Nevertheless, the appellant was charged under section (1) of the Criminal Attempts Act, 1981.

He appeared before the House of Lords contending that because the substance found in his possession was not a prohibited drug thus, he cannot be convicted under section (1) as the commission of the actual offence was impossible.

The House of Lords dismissed the appeal and the principle laid down, in this case, is that the accused is punished for his guilty mind, although the act actually committed is innocent and impossibility to do the offence cannot be a defence.

Encouraging or assisting

As per part 2 of the Serious Crime Act 2007, at sections 44 to 46, there are three inchoate offences:

1. Intentionally encouraging or assisting an offence;
2. Encouraging or assisting an offence believing it will be committed; and
3. Encouraging or assisting offences believing one or more will be committed.

The actus reus for all the three forms under the head “encouraging or assisting” is the same i.e., the defendant does an act that is capable of encouraging or assisting the commission of one or more offences but the difference lies in the mens rea.

Under section 44, the mens rea required is the intention to encourage or assist in the commission of the offence. Here, the intention required is specific and mere recklessness does not satisfy the requisite mens rea. under section 45, it is “believing that the offence will be committed and that the act will encourage or assist its commission” and under section 46 where there are multiple possible offences being encouraged or assisted, and at least one is foreseen

Conspiracy

Conspiracy deals with an exchange of common mens rea between two or more persons. Section 5(1) and (2) of the Criminal Law act, 1977 defines Conspiracy as an agreement (meeting of the minds) between two or more persons to do an unlawful act or to do a lawful act by unlawful means. Conspiracy is a substantive offence. The offence of criminal conspiracy is complete with the completion of the agreement between two or more persons to commit a criminal offence, irrespective of the further consider whether or not the offence has actually been committed. Punishing conspiracy is designed to deter potential criminals from becoming organised. Common law conspiracy falls into two categories i.e., conspiracy to defraud and conspiracy to corrupt public morals.

Section 2(2) of the act of 1977 lists persons who cannot be held guilty of conspiracy:

1 husband and wife

2 Under the age of criminal responsibility

3 An intended victim of the offence

Essential elements of the offence of conspiracy:

An Agreement (meeting of minds)

In Rv. Walker[III], the defendant discussed the idea of stealing a payroll with two others but did not get beyond the stage of negotiation. The court quashed their convictions for conspiracy as they were yet to reach a solid decision or agreement.

Between two or more people:

In R v. Lovick[IV], the defendant’s conviction was quashed as only she and her husband were involved in the agreement. Entered into for the purpose of committing a crime

Conclusion:

In an inchoate offence, all the stages of a pre-planned offence that are intention, preparation, attempt and commission are not covered yet the actor is punished. English criminal law nevertheless justifies such a criminal policy as a preventive measure to curb the grave offences against mankind in their incipient or early stages and to punish the wrongdoer for the steps he had taken towards the commission of the intended offence. Thus, accordingly criminalises some of the steps taken by him by labelling them as “Inchoate offences”. It arises in three situations namely; attempt, encouraging and assisting and conspiracy.

References:

I- [1991] 93 Cr App R 350

II- [1986] 2 All ER 334 (HL)

III- [1962] Crim LR 458

IV- [1993] Crim. LR 890, CA

V– PSA Pillai, Criminal Law (14^th Edition, 2019), LexisNexis, New Delhi

VI– Criminal Attempts Act, 1981

VII– Serious Crime Act, 2007

VIII– Teacher, Law. (November 2018). General Inchoate Offences Lecture. Retrieved from https://www.lawteacher.net/lectures/criminal-law/general-inchoate-offences/?vref=1

– Edited and Published by :

Soma Singh