Preliminary Offences

5 Key excerpts on "Preliminary Offences"

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  eBook - ePub

  Justice and Security in the 21st Century

  Risks, Rights and the Rule of Law

  • Barbara Hudson, Synnove Ugelvik(Authors)
  • 2012(Publication Date)
  • Routledge

    (Publisher)

  The distinction between ‘preparation’ and ‘attempt’ is that the defendant at the attempt stage has come to a ‘point of no return’ – clearly beyond mere preparation to commit the crime (Packer 1969: 75). Preparatory acts have been seen as occurring too remote in time from the ultimate harm to justify criminalisation. The likelihood that a person will succeed in completing the preparation and commit the crime increases for each step s/he moves further along the criminal pathway, but until the person reaches the point at which s/he completes the preparations and ‘embarks’ on the commission of the offense, the individual has until recently not committed any crime. Both the culpability of the actor and the threat posed by the conduct has not been seen as sufficiently serious to justify criminal punishment. In addition, acts of preparation, unlike acts that amount to substantive crimes, quite frequently are less distinctive than the acts that constitute attempts and the completion of the crime. Preparatory acts also differ from other mala prohibita offences such as possession crimes in that they are less distinctive. Preparatory acts are often ‘ordinary’ or routine activities that do not, as such, suggest a criminal intent (Ohana 2006: 28). This erected barrier between preparation and attempt in criminal law is breaking down. Criminalisation of preparatory acts to prevent serious crimes such as terrorism and child sexual abuse is part of the preventive turn in criminal law. These new offences introduce criminal liability at an earlier, preparatory stage than is usually the case for other kinds of criminal conduct. In principle, therefore, criminalisation of preparatory acts undermines the moral credibility of the criminal law in cases in which such conduct falls short of the threshold of wrongdoing that deserves the moral censure that is traditionally associated with criminal conduct (Ohana 2006: 31)

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  Pre-crime

  Pre-emption, precaution and the future

  • Jude McCulloch, Dean Wilson(Authors)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  Preparatory acts are not often made into criminal offences… . It was, in my opinion, the clear intention of Parliament to create offences where an offender has not decided precisely what he or she intends to do. A policy judgment has been made that the prevention of terrorism requires criminal responsibility to arise at an earlier stage than is usually the case for other kinds of criminal conduct, eg well before an agreement has been reached for a conspiracy charge.

  (

  Lodhi v Regina [2006]

  NSWCCA 121, Spigelman CJ)

  The laws that criminalize preparation expand the temporal gap between criminalized conduct and substantive offense. The preparatory conduct offenses also exhibit a number of pre-crime signature traits (see chapter 1 ). The laws look forward to forecast crime rather than to past conduct as an indication of future threat. In addition, these laws are uncertain in terms of the acts that attract liability and look to the identity of the suspect would-be criminal instead of conduct as the primary basis for criminal liability. Rather than focusing on past conduct as an indication of imminent crime the preparatory laws seek to thwart even the opportunity to commit crime. The wider the temporal gap between the substantive crime targeted and the criminalized acts, the more vacuous the conduct element of the crime (Sullivan and Dennis 2012 , 4). The preparatory offenses eschew past harmful, dangerous or criminal conduct as a guide to future threat and instead are typically based on what appears to be harmless conduct (Ramsay 2013 : 216; Scanlon 2013 ). This gives rise to uncertainty about the type of conduct that will attract liability. Some preparatory offenses require only that the prosecution prove that the suspect intended to commit a future criminal act. The presumed intention provides the basis for criminalizing otherwise lawful activity, such as traveling to an airport (Scanlon 2013 : 771). Where preparatory acts are specified, they tend to be extremely vague. For example, these laws include provisions that prohibit possession of “a thing” connected with preparation for a terrorist act. The thing can literally be anything (see, for example, Davis 2014 ). It has been argued that possession offenses in relation to drugs and firearms target dangerous actors, not dangerous acts (Dubber 2005

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  Criminal Law Reform Now

  Proposals & Critique

  • J J Child, R A Duff, J J Child, R A Duff(Authors)
  • 2018(Publication Date)
  • Hart Publishing

    (Publisher)

  33 There are two logical paths that we might take here (either independently or in combination), but I remain uncertain as to which offers the best way forward.

  The first option is the more pragmatic, but also (perhaps) less likely to achieve its aims: this is an approach that accepts the multiplicity of bespoke preparatory offences across the criminal piste, but seeks to identify and entrench minimum standards and principles of criminalisation in order to encourage coherence within their future evolution. This approach is likely to be supported by academics such as Eldar who place particular value on the potential precision of bespoke offences, but the difficulty will lie in agreeing principles of general application and ensuring that these are acknowledged in reform. It should be observed that this approach mirrors traditional discussions about the reform and rationalisation of so-called substantive offences, highlighting once more that the role of preparatory crimes may not be as exceptional as it is sometimes presented.

  The second option is more radical, to embrace and expand the use of general inchoate offences to replace existing bespoke preparatory crimes. Something of this approach can be seen in the (ultimately unsuccessful) consultation proposals put forward by the Law Commission in 2007,34 recommending a new pre-attempts general offence of criminal preparation and advocating the expansion of conspiracy liability to apply in cases where bespoke offences would otherwise be relied upon. There are a number of specific reasons why these proposals were not successful,35 and why calls for other potential general preparatory offences (such as a general endangerment offence) have not been taken forward. We should also ask whether general offences of this kind would give rise to unnecessary gap-filling and overcriminalisation of the kind cautioned against in Alldridge’s chapter later in this volume.36

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  Cases & Materials on Criminal Law

  Fourth Edition

  • Mike Molan(Author)
  • 2009(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  Chapter 8 Inchoate Offences

  DOI: 10.4324/9780203885833-8

  Contents

  • 8.1 Introduction
  • 8.2 Incitement
  • 8.3 Statutory Conspiracy
  • 8.4 Attempt
  • 8.5 Doubly Inchoate Offences – Inciting Incitement

  8.1 Introduction

  The three forms of liability for inchoate offences in English criminal law are incitement, conspiracy and attempt. In each case liability can be imposed on the defendant even though the completed offence is not committed (inchoate simply means incomplete).

  There are broadly two justifications for such offences. The first can be encapsulated in the notion that prevention is better than cure. To intervene and arrest whilst a bombing campaign is being discussed, agreed or arranged, is far better than to deal with its aftermath. The second is based on the argument that by suggesting, agreeing to commit, or trying to commit a crime a defendant has demonstrated his willingness that the crime should be committed. Therein lies the culpability that justifies punishment. In that sense it matters not whether the completed crime is ever committed. There is a further practical matter that should not be overlooked. Even where there is evidence that a completed offence has been committed, it may be easier for the prosecution to secure a conviction for incitement, conspiracy or attempt to commit the crime. The prosecution is at liberty to take this course of action, provided the indictment does not allege an inchoate and completed form of the same offence.

  8.2 Incitement

  To incite another to commit a criminal offence is itself an offence at common law. The offence requires proof that:

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  Criminal Lawcards 2012-2013

  • Routledge(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  2

  Inchoate offences and participation

  Encouraging or assisting crime Conspiracy Attempt Participation Joint enterprise

  Having looked at the general principles of actus reus and mens rea, this chapter examines the general principles concerning inchoate offences and participation. Participation is sometimes called complicity, accessory liability or secondary liability.

  When we look at particular offences throughout the rest of this book it is important to remember that the criminal law is not just concerned with substantive liability. Defendants may be charged with preparing to complete a criminal offence (inchoate liability) or with helping another to commit an offence (secondary liability).

  The law in this area has been subject to recent reform. The new inchoate offence of encouraging or assisting crime has replaced the common law offence of incitement. This has also affected the law on participation. The Law Commission has advocated further reform of the law on attempt but no statutory changes have yet been made.

  INCHOATE LIABILITY

  Inchoate liability can occur where the defendant progresses some way towards the commission of an offence, but does not necessarily commit the completed offence. There is no liability for criminal thoughts or for simply telling your thoughts to another. However, once some step is taken, the defendant may be liable for an inchoate offence.

  Inchoate offences permit intervention at an earlier stage before any harm has been done but at a time when the accused has moved from mere mental planning to the stage of performing overt acts which manifest his intention that a substantive offence be committed.

  There are three inchoate crimes: assisting or encouraging crime (which was formerly known as incitement), conspiracy and attempt.

  Those convicted of inchoate offences are liable to the same penalty as if they had been convicted of the relevant substantive offence. A defendant may be charged with an inchoate offence either where the substantive offence is not completed or where there is insufficient evidence to prove the substantive offence.

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