The Structure, coherence and limits of inchoate liability: the new ulterior element

The wrongs targeted by the criminal law need not reside in a defendant’s conduct and its effects (actus reus) or even in her willingness to allow or risk that conduct and its effects (mens rea as to actus reus). Rather, to a greater or lesser extent, wrongs may also reside in a species of mens rea that does not relate to the actus reus of an offence at all, but is rather ulterior to (goes beyond) it. Offences requiring such ulterior mens rea are numerous and varied, 1 ranging from the ‘intention of permanently depriving’ in theft, 2 or the role of improper intentions in bribery, 3 through to requirements (such as those within the general inchoate offences) that D should act with the ambition of bringing about a full principal offence. The use of ulterior mens rea thereby provides unique opportunities for framing offences that are able to take account of D’s wrongful state of mind where it has not yet (or not yet fully) been actioned externally. In this manner, ulterior mens rea enables the creation of offences designed for early intervention within a criminal enterprise and, even where D’s actions are complete or have already caused some lesser harm, more accurate labelling and punishment that takes account of D’s more seriously wrongful state of mind. As a result, the