Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance.
As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity".
All three inchoate offences require a mens rea of intent, and upon conviction, the defendant is sentenced as if they had succeeded in committing the attempted, incited or conspired crime in question.
In each case, the defendant "has not himself performed the actus reus but is sufficiently close to doing so, or persuading others to do so, for the law to find it appropriate to punish him".
[7] The common law gives intention "its normal meaning: purpose or aim", with judges advised not to, in the majority of cases, attempt to complicate the definition.
[10] This was a procedural solution to a previous apparent contradiction, but the suggested drafting may not demonstrate sufficient proximity between the defendant's actions and what he was planning to steal.
[11] A mens rea requirement is added to the attempt of crimes of strict liability (where there is no intent or merely objective recklessness), although the ruling in Attorney General's Reference (No.
In practice, academic Jonathan Herring notes that "there is no hard and fast rule about when an act may be more than merely preparatory", although there are several cases which give broad guidance.
[10] In R v Geddes,[13] a man entered the toilets in a school in Brighton with a large knife, some rope and a roll of masking tape; it was alleged that he was intending to kidnap a pupil.
[15] The actus reus of the full offence is also taken into account; in R v Toothill,[16] the defendant was charged with attempted burglary after trespassing into the victim's garden and knocking on their door.
[17] The wording "does an act" prevents liability for omissions, a distinction that the Law Commission has looked to remove, at least in the case of attempted murder.
[22] In each case, the actus reus requirement is that the defendant carry out an act capable of "encouraging or assisting" the commission of another offence.
[36][37] Incitement has a particularly broad actus reus; it has been interpreted to include "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity".
[46] The standard definition of a conspiracy to defraud was provided by Lord Dilhorne in Scott v Metropolitan Police Commissioner,[47] when he said that it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.
This does not require the defendants' actions to directly result in the fraud; in R v Hollinshead,[49] the House of Lords held that producing devices designed to alter electricity meter readings constituted conspiracy to defraud, even though the actual fraud would be carried out by members of the public rather than the conspirators.
In two situations, it will not even be necessary for the actions to directly lead to any kind of financial loss for the victim; these are when the conspirators plan to deceive a person holding public office into acting counter to their duties, and when the conspirators know that their actions put the victim's property at risk, even if the risk never materialises.
Cases of legal impossibility occur when the defendant attempts to do something which he believes to be illegal, which is in fact not; this does not constitute a crime.
[54] Impossibility through ineptitude is where the defendant attempts to commit a crime with inadequate means, in which case he can be found guilty.
[55] However, prosecutors' discretion is likely to be a factor, since some plans – for example murder through a voodoo doll – may be simply too removed from the attempted crime.
[55] Such actions are governed by section 1(2) and 1(3) of the 1981 Act, which provides that they do constitute a crime if the actions, were the facts of the case to be as the defendant believed them to be, would have led to a valid attempt; as Herring states, "if the defendant believes he is dealing in illegal drugs he can be convicted of an attempted drug-dealing offence, even if in fact what he is selling is chalk".
[60] Many theorists who make the distinction between successful and failed attempts do still consider the defendant partially liable, for example advocating a lesser punishment.
[62] Although a differing approach is taken in some United States jurisdictions, intervention can happen very early in a conspiracy and the defendants can still be held liable.