Inchoate offences are criminal offences designed to treat with persons who have taken steps toward committing a crime, but the full offence hasn’t actually happened (yet). The law still treats these as crimes because the person has shown criminal intent and has taken steps to prepare for, attempt or encourage the commission of an offence. Even if the intended crime is not completed, the preparatory steps can be punished. This is why inchoate offences are often called incomplete offences.
Inchoate offences relate to the preparatory stages of other criminal offences. Some general categories of inchoate offences include incitement, conspiracy or attempt.
Incitement:
This is commonly described as encouraging or persuading another person to commit a criminal offence. An inciter is one who reaches out and seeks to influence the mind of another person to commit a crime. This approach may take various forms, including a request, a proposal, a gesture or some inducement. For this offence to be established certain requirements must be satisfied, such as:
- The person encouraging the crime (the inciter) must communicate the encouragement in some way.
- The encouragement doesn’t have to be aimed at a specific person. The inciter doesn’t need to talk directly to the person who might commit the crime, what matters is that they intended to bring about the crime which they were encouraging.
- There is no need for the other person to be actually persuaded. Once the act of encouragement is complete, the offence is committed, even if no one follows through with the crime.
For example, under Section 5 (b) of the Offences Against the Person Act, it is a crime to solicit, encourage, or persuade someone to commit murder and is liable to imprisonment for 10 years.
Conspiracy:
A conspiracy is another type of inchoate offence where there is an agreement between persons to commit an unlawful act or an act that is lawful by unlawful means. To establish that a criminal conspiracy existed, the following must be proved:
- There must be an agreement to commit the same criminal offence;
- This agreement must occur between two or more persons; and
- All parties must agree on the course of action, that leads to the commission of the offence. Therefore, to be liable in a conspiracy all parties must have the same intention.
An example of this offence is conspiracy to defraud under Section 7 of the Criminal Offences Act. A conspiracy to defraud is when Party A makes a plan to cheat Party B out of money or items.
Another example is conspiracy to commit murder under section 5(a) of the Offences Against the Persons Act which also carries a maximum sentence of imprisonment for 10 years.
Attempt:
Attempt goes beyond the preparatory stage of a criminal offence. For an attempt to exist, the person must have begun or started to commit the offence coupled with the clear intention to commit the substantive/main offence. This matters because just being reckless about what might happen isn't enough to prove intention for this kind of inchoate offence. More than mere preparation does not necessarily mean physical conduct but a psychological commitment towards committing the actual offence.
For example, a mother planned to remove her children from the custody of their father by booking ferry tickets and informed the school that she would be collecting the children to take them to the dentist. Even though she was arrested before actually collecting the children from school, she was convicted for attempting to abduct the children.
Another example is the offence of attempted murder. A person may engage in an activity with the intention to unlawfully kill or do grievous bodily harm and fails to complete the offence, he/she can be charged for attempted murder.
Defences:
There are some general defences, which may apply to inchoate offences. Impossibility is one such example. For a crime to be committed, it must be proven that the act itself is contrary to a law, whether statute or common law. Impossibility can be separated into two categories:
- Legal Impossibility: this is a defence to a charge of an attempted crime, where even if the act was completed, it would not constitute an offence. As such, the attempt would not be illegal if the completed act is lawful.
- Factual Impossibility: this is a defence that arises where the circumstances are different from the belief of the perpetrator. For example, if Party A attempts to poison Party B, but Party B is already deceased, then it would be impossible for Party B to be poisoned. Therefore, it would be impossible for Party A to have committed the intended crime.
Conclusion
Inchoate offences address conduct that, while not resulting in the completion of a crime, demonstrates a clear intention to break the law. Incitement, conspiracy, and attempt each reflect different stages of preparation or planning and are punishable in their own right. These offences emphasize the importance of intent and agreement, rather than the final outcome. While there are defences such as legal and factual impossibility, inchoate offences reinforce the idea that a person can still be held accountable for serious steps toward committing a crime, even if unsuccessful.
Sarah Julien
Public Defender Entry
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Website: www.laaa.org.tt
This article is not meant to provide legal advice but simply to provide an overview of the law on this topic.