The Law Commission

PART 7

INFINITE INCHOATE LIABILITY AND RELATED ISSUES

INTRODUCTION

7.1      In this Part, we consider a particular aspect of an issue which, while not unique to inchoate offences, has a heightened significance in the context of inchoate liability. The issue is the over-extension of criminal liability. Hitherto, we have described our scheme of inchoate liability by reference to the paradigm case: D encouraging or assisting P to commit an offence ("the principal offence"). In the paradigm case, D's conduct is only one step removed from the principal offence. However, that will not always be the case:

Example 7A

D, knowing that P is planning to act as X's getaway driver in a robbery, lends a car to P so that P can provide the assistance to X.

Example 7B

D, knowing that P intends to distribute a leaflet encouraging X to commit a racially motivated assault, provides P with the means of producing the leaflets.

Example 7C

D encourages P to encourage X to rape V.

At common law, if X commits the robbery, the assault and the rape respectively, both D and P will be accessories to and guilty of the principal offence. The doctrine of secondary liability does not exonerate D merely because his or her conduct was more than one step removed from the commission of the principal offence.

7.2      However, in each of the three examples, X may not commit the principal offence. If so, at common law the issue of D's liability only arises in example 7C. In examples 7A and 7B, D would not be liable because D's contribution consists of assistance and at common law there is no inchoate liability for assisting the commission of an offence.^[1] By contrast, in example 7C, D's contribution consists of encouragement. D would be criminally liable because the common law recognises not only an offence of incitement but also an offence of incitement to incite.^[2] D is guilty of inciting P to incite rape. As with secondary liability, D is not exonerated merely because his or her encouragement is more than one step removed from the principal offence.
7.3      The approach of the common law in recognising an offence of incitement to incite is defensible. The inchoate offences of attempt, conspiracy and incitement punish conduct not because it is harmful in itself but because, by seeking to encourage or assist the commission of an offence, it enhances the prospects of harmful consequences occurring. They are offences which necessarily involve conduct that is one step removed from the commission of the principal offence. Logically, there is no reason why inchoate liability should not attach to conduct that is two steps removed. If D can be liable for encouraging P to commit an offence, why should D not be liable for encouraging P to encourage X to commit an offence? Further, if D can be liable for conduct that is two steps removed, why should D not be liable for conduct that is three or more steps removed? In logic and in principle, there is no impediment to an endless chain and almost infinite inchoate liability.
7.4      Likewise, in logic and in principle, it ought to be permissible to base criminal liability on a combination of different inchoate offences:

Example 7D

D1 and D2 are rival drug dealers who are increasingly concerned about the activities of another rival, V. They wish to eliminate V but are anxious to distance themselves from the murder. They agree that they will encourage P, who they know has his or her own reasons for eliminating V, to murder V. They meet with P and encourage P to murder V.

If P murders V, D1 and D2 will be accessories to and guilty of murder. Should P not even attempt to murder V, D1 and D2 are nevertheless guilty of conspiracy to incite murder.^[3]

7.5      However, there is a strong argument against both infinite inchoate liability and liability based on combining different inchoate offences. It is that such liability represents an unlimited and unwarranted extension of the criminal law. It allows D, because of potentially harmful consequences that may flow if P does commit the principal offence, to be criminally liable on the basis of conduct that is very remote from the prospective principal offence and consequent harm. On this view, the further removed and, therefore, the more remote D's conduct is from the prospective principal offence, the more cautious the law should be before imposing criminal liability. Further, encouraging or assisting the commission of an offence is by its very nature more remote from the prospective principal offence than simply conspiring or attempting to commit it. This is because whether or not the principal offence is ultimately committed depends on the actions of the person encouraged or assisted. In contrast, in cases of conspiracy and attempt, it is the actions of the conspirators and the person trying to commit the principal offence which determine whether the prospective principal offence is committed.

THE CURRENT LAW

7.6      The current law, a mixture of common law and sporadic statutory provisions, is an incoherent and confusing muddle:

(1) it is not an offence for D to assist P to assist or encourage X to murder V or for D to incite P to assist X to murder V^[4] but it is an offence for D to incite P to incite X to murder V;^[5]

(2) it is not an offence for D to incite X and P to conspire to murder V.^[6] It is, however an offence for D and P to conspire to incite X to murder V; ^[7]

(3) it is an offence for D to incite P to attempt to murder V and for D to attempt to incite P to murder V.^[8] However, it is not an offence for D to attempt to conspire with P to murder V;^[9]

(4) it is not an offence for D to attempt to commit an offence as an accessory.^[10] It is unclear whether it is an offence for D to incite P to commit an offence as an accessory.^[11]

THE PROPOSALS IN THE CP

7.7      In the CP, the Commission's provisional conclusion was that each of the two new inchoate offences that it was proposing, encouraging crime and assisting crime, should not be able to be committed in respect of any inchoate offence, including the new offences themselves.^[12] Its reason was that D's conduct would be "too remote from the commission of the principal crime for it to be justified to pursue him".^[13] The Commission drew no distinction between encouraging crime and assisting crime despite the fact that the fault element it was proposing for the former was narrower than that for the latter.
7.8      Conversely, the Commission thought that, if the law of secondary liability was put on an inchoate basis, there was no obvious reason of policy to prevent D being liable for conspiring to encourage crime or conspiring to assist crime and for attempting to encourage crime or attempting to assist crime.^[14]

Responses to the proposals in the CP

7.9      The overwhelming majority of respondents who considered the issue agreed with the Commission that it should not be possible to encourage or assist any inchoate offence. Respondents were concerned that criminal liability should not be extended too far and that there had to be limits to the scope of inchoate liability. A smaller but significant majority agreed that there should be liability for conspiring and attempting to encourage or assist the commission of an offence.

CONCLUSIONS

Committing the clause 1 offence or a clause 2 offence by encouraging or assisting another person to commit those offences

7.10      It has to be borne in mind that D satisfies the conduct element of both the clause 1 offence and the clause 2 offence by merely doing an act that is capable of encouraging or assisting. Further, even in cases where D's encouragement or assistance is only two steps removed from the prospective principal offence, P may never act upon D's encouragement or assistance and, in turn, X may never act upon P's encouragement or assistance. We think that these are important considerations for the purposes of determining the circumstances in which D should incur liability for encouraging or assisting P to encourage or assist X to commit an offence.
7.11      Our recommendations build on the common law in relation to incitement. The common law recognises an offence of incitement to incite.^[15] In our view, it is right to do so. Although it is not entirely free from doubt, the preferred view is that in order to be guilty of incitement, D must intend that the principal offence is committed (or, at least, that P should be encouraged to commit it).^[16] Accordingly, D can only be guilty of inciting P to incite X to murder V if it was D's intention that P should incite X (or that P should be encouraged to incite X). We believe that is a sufficiently stringent requirement to justify D incurring criminal liability for conduct that is more than one step removed from the principal offence.
7.12      The new offences that we are recommending, like those proposed by the Commission in the CP, have different fault elements. The clause 1 offence requires that D must intend to encourage or assist the doing of a criminal act. In line with the common law of incitement, we believe that in cases where D encourages or assists P intending that P should encourage or assist X to commit an offence, D ought to be liable. The fact that D's act is a step further removed from the principal offence should not, given D's highly culpable state of mind, be a bar to liability in such cases. Further, given D's culpable state of mind, D ought to be liable irrespective of how many steps his or her conduct is removed from the principal offence.
7.13      On the other hand, the clause 2(1) and 2(2) offences only require D to believe that P will commit a criminal act and that D's act will encourage or assist P to commit a criminal act. In the light of the considerations to which we have just referred, we believe that it would be an over-extension of criminal liability if D were to be criminally liable for the clause 2 offences in cases where he or she has encouraged or assisted P to encourage or assist X.
7.14      In cases where D does encourage or assist P intending that P should encourage or assist X, P may or may not intend that X should commit the principal offence:

Example 7E

D encourages P to hire X to murder V who has been having an affair with P's wife.

Example 7F

P tells D that, in return for a substantial payment, he is contemplating selling a firearm to X although he believes that X intends to use it to kill V. D, who hates V, urges P to provide the firearm to X.

In example 7E, if P were to encourage X, he would do so with the intention that X should murder V. By contrast, in example 7F, were P to sell the firearm to X, he would do so for the purpose of making a profit but without intending that X should murder V.

7.15      We believe that in each example D ought to be liable. It is D's state of mind that is critical. If it is D's intention that P should encourage or assist X, his or her conduct should not be considered too remote from the principal offence merely because, were P to encourage or assist X, P would not intend X to commit the principal offence.

Recommendation

7.16      We recommend that D may commit the clause 1 offence but not a clause 2 offence by:

(1) doing an act capable of encouraging or assisting P to do an act capable of encouraging or assisting X to do a criminal act , and

(2) intending that P should do, or be encouraged to do, the act.^[17]

7.17      If D encourages or assists P to encourage or assist X to commit an offence, D is encouraging or assisting P to do an act which, were P to do it and were X to commit the offence, would render P an accessory to the offence. In Part 3,^[18] we referred to the uncertainty that exists at common law as to whether D can be convicted in such circumstances of not merely incitement to incite but of incitement to commit the principal offence:

Example 7G

D encourages P to encourage X to rape V. X ignores P's encouragement.

Although D is guilty of incitement to incite rape, according to Bodin^[19], D is not guilty of inciting rape because had X raped V, P would have been guilty of the offence but as an accessory and not as a principal offender.

7.18      Simester and Sullivan have criticised Bodin^[20] and we recognise the force of the criticism. The effect of Bodin was to prevent D incurring liability for incitement if D encouraged P to assist X to commit an offence but X did not commit or attempt to commit the offence.^[21] By contrast, however, under our recommendations it will be possible to convict D of the clause 1 offence if he or she encourages or assists P to commit the clause 1 offence or a clause 2 offence. There is no longer the gap which existed at common law.^[22]

Committing the clause 1 offence or a clause 2 offence by encouraging or assisting others to conspire to commit an offence

7.19      Parliament's decision in 1977 to abolish the offence of incitement to commit conspiracy^[23] was not based on any Law Commission recommendation.^[24] In abolishing the offence, Parliament may have thought that at common law there was no offence of incitement to incite an offence. In 1983, the Court of Appeal confirmed that there was such an offence.^[25] This led the Law Commission in 1989 to say that the law had "reached the point of absurdity":

If the evidence shows that D incited [X] to agree with [P] to wound G, section 5(7) of the Criminal Law Act 1977 apparently prevents a charge against D of incitement to conspire or of incitement to incite. But if D incites [P] to incite [X] … to wound G, D can be charged with incitement to incite. Such an absurd distinction cannot be restated in a code. ^[26]

The Commission recommended that conspiracy should cease to be excluded from the scope of incitement.^[27]

7.20      Again, we believe that D should only be liable for encouraging or assisting X and P to conspire to commit an offence if D intends that X and P should form the conspiracy or that X and P should be encouraged to do so:

Example 7H

D knows that X and P, normally rival drug dealers, are concerned about the activities of V another drug dealer. D, who hates V, makes a room available to X and P so that they can hatch a plot to murder V. The meeting breaks up in acrimony without any agreement having been reached.

Under our recommendations, D has committed the clause 1 offence because D has done an act capable of encouraging or assisting X and P to conspire to murder intending that they should commit the offence of conspiracy to murder. However, D would not commit the clause 2(1) offence if, purely for financial gain, D hired the room to X and P believing that D and P wanted the room in order to negotiate an agreement to murder V.

Recommendation

7.21      We recommend that D may commit the clause 1 offence but not a clause 2 offence by:

(1) doing an act capable of encouraging or assisting X and P to conspire to commit an offence; and

(2) intending that X and P should conspire, or be encouraged to conspire, to commit the offence.^[28]

Committing the clause 1 offence or a clause 2 offence by encouraging or assisting another person to attempt to commit an offence

7.22      At common law a charge of incitement to commit attempt is very uncommon because D will nearly always be encouraging P to commit the full offence. However, we provided an example in Part 3.^[29] Although Parliament abolished the offence of incitement to commit conspiracy, it left untouched the offence of incitement to commit attempt.
7.23      The need for consistency of approach requires that D should be liable for doing an act capable of encouraging or assisting P to attempt to commit an offence only if it was his or her intention that P should attempt to commit the offence. In practise, we find it difficult to envisage a case where D would not have that intention.

Recommendation

7.24      We recommend that D may commit the clause 1 offence but not a clause 2 offence by:

(1) doing an act capable of encouraging or assisting P to attempt to commit an offence; and

(2) intending that P should attempt, or be encouraged to attempt, to commit the offence.^[30]

Note 1    However, under the scheme that we are recommending, the issue of D’s liability in examples 7A and 7B would arise.    [Back]

Note 2    Sirat (1985) 83 Cr App R 41.    [Back]

Note 3    Criminal Law Act 1977, s 1(1) which preserved the common law.    [Back]

Note 4    Unless, in each case, X murders or attempts to murder V in which case D and P are accessories to and guilty of murder or attempted murder.    [Back]

Note 5    Sirat (1985) 83 Cr App R 41.    [Back]

Note 6    Criminal Law Act 1977, s 5(7).    [Back]

Note 7    Criminal Law Act, s 1(1). In its Report on Conspiracy and Criminal Law Reform (1976) Law Com No 76, the Commission had expressly said (para 1.44) that an offence of conspiracy to incite was justified.     [Back]

Note 8    Banks and Banks (1873) 12 Cox CC 393; Ransford (1874) 13 Cox CC 9, 16 to 17.    [Back]

Note 9    Criminal Attempts Act 1981, s 1(4)(a). Again, it is right to say that in Inchoate Offences: Conspiracy, Attempt and Incitement (1973) Law Commission Working Paper No 50, the Commission expressed (para 44) the provisional view that an offence of attempt to commit conspiracy could not be justified. The Commission confirmed its view in Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement (1980) Law Com No 102 para 2.122.     [Back]

Note 10    Criminal Attempts Act 1981, s 1(4)(d). An example would be D attempting, but failing, to hire a getaway car for use in a robbery that P goes on to commit without any assistance from D. The Commission in Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement (1976) Law Com No 76 recommended (para 2.123) that an attempt to aid, abet, counsel or procure the commission of an offence should not be an offence.    [Back]

Note 11    See Part 3 paras 3.39 to 3.43 above.    [Back]

Note 12    Para 4.184.    [Back]

Note 13    Para 4.183.    [Back]

Note 14    Para 4.186.    [Back]

Note 15    Sirat (1985) 83 Cr App R 41.     [Back]

Note 16    See para 3.45 above.    [Back]

Note 17    Clause 2(5)(a) of the Bill gives effect to our recommendation by providing that D cannot commit a clause 2 offence by doing an act capable of encouraging X to do an act capable of encouraging or assisting P to commit an offence.     [Back]

Note 18    Paras 3.39 to 3.43.    [Back]

Note 19    [1979] Criminal Law Review 176.    [Back]

Note 20    Para 3.43 above    [Back]

Note 21    There was no problem if D encouraged P to encourage X. D was guilty of incitement to incite - Sirat (1985) 83 Cr App R 41.    [Back]

Note 22    We acknowledge that there is a gap if D encourages or assists P to procure X to commit an offence which X does not commit. We will be addressing this issue in our report on secondary liability.    [Back]

Note 23    Criminal Law Act 1977, s 5(7).    [Back]

Note 24    It is true that in Inchoate Offences: Conspiracy, Attempt and Incitement (1973) Law Commission Working Paper No 50, the Commission expressed (para 44) the provisional view that an offence of incitement to commit conspiracy could not be justified. However, in its Report on Conspiracy and Criminal Law Reform (1976) Law Com No 76, the Commission made no recommendation.     [Back]

Note 25    Sirat (1985) 83 Cr App R 41.    [Back]

Note 26    Criminal Law: A Criminal Code for England and Wales, vol 2 Commentary on Draft Criminal Code Bill (1989) Law Com No 177, para 13.13.    [Back]

Note 27    Para 13.15.    [Back]

Note 28    Para 10 of sch 1 Part 1 and para 18 of sch 1 Part 2 to the Bill give effect to our recommendation by providing that D cannot commit the clause 2 offences by doing an act capable of encouraging or assisting conspiracy, whether a statutory conspiracy or a common law conspiracy.    [Back]

Note 29    Example 3H at para 3.38.    [Back]

Note 30    Para 11 of sch 1 Part 1 and para 19(1) of sch 1 Part 2 to the Bill give effect to our recommendation by providing that D cannot commit a clause 2 offence by doing an act capable of encouraging or assisting P to attempt to commit an offence.    [Back]