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Criminal Law - Inchoate Offences
- Module
- Criminal Law (LAW5005)
- Institution
- Kings College London (KCL)
Comprehensive notes on Criminal Law in the UK, on inchoate offences.
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Criminal Law Revision NotesINCHOATE OFFENCES
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A) INTRODUCTION
What are inchoate offences?
→ The term “inchoate” means ‘at an early stage’, ‘incomplete’, etc. Inchoate offences are crimes that do not come to fruition
(i.e. attempted murder).
→ There are different ways in which one could be liable for an attempt:
being thwarted by police;
mistaken in effort to commit a crime; or
it is impossible for you to commit the crime.
→ The main question: how should the law handles attempts at crimes?
Various forms of inchoate offences
1) Conspiracy: An explicit agreement between two people to commit a crime. An offence does not have to manifest
unlike complicity.
2) Acts capable of encouraging or assisting crime: Serious Crime Act 2007, ss.44-46,
3) Attempts
! The focus of this set of notes will be on attempts only.
Theoretical question underpinning attempts at law
→ Why criminalize mere attempts when the crime has not materialized?
Harm prevention: This per the concept of objectivism in that harm to the society is curbed. It has a deterrent effect by
apprehending those who are commit crimes. People who have attempted crimes show that they are in need of
correction; their attempts prove that they disregarded for norms of society and due to this, they too need to be subject
to isolation to protect us from them. For instance, the fact that D attempted murder goes to show the level of moral
deploration.
Retribution: People who attempt to commit crimes are still blameworthy and deserve punishment. There might even still
be harm in some cases like attempted rape, where even though there is no penile penetration, the trauma is still there).
→ With these concepts in mind, how much do they ought to be punished?
There are various considerations to be made:
➢ Different ‘forms’ of attempt: complete vs. incomplete attempts.
➢ Might they have changed their minds if not thwarted?
➢ Are they less dangerous because of incompetence?
➢ Does the fact that no harm was caused make a difference?
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, Criminal Law Revision Notes
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B) CONCEPTUALISING ATTEMPTS
When does an attempt begin?
→ Consider an attempted murder: when can we say the defendant attempted murder? When he decides to kill V? Hatches
a plan? Tells someone else about his plan? Buys the gun? Starts walking to V’s location? Arrives at V? Gets into his hiding
place? Takes the safety off? Raises the weapon? Pulls the trigger?
At what point should law enforcement intervene and have the individual be criminally liable?
Subjectivist approach: Attempt begins where D reveals their dangerous subjective disposition. This places more weight on
defendant’s internal subjective disposition. Attempts comes earlier on the spectrum, as long as MR becomes visible. This is a
more maximalist approach. This approach is achieved by the following test:
➢ Substantial Step Test (American Model Penal Code): Is D taking substantial steps towards achieving his goal? This will look
into steps which will form part of a series of acts that would constitute actual commission of the offence if it were not
interrupted.
! You should not criminalise thoughts. There should be a balance.
→ Objective approach (minimalist approach): Attempts begin at a later stage when there is an act showing criminal intent on
the face of it. In other words, the attempt begins where D does something objectively wrong, i.e. criminal law should not
intervene unless we look at their behaviour and say we’ve done something wrong.
Hence, attempt comes later on the spectrum. This is a more minimalist approach. This approach is achieved by the
following test:
➢ Unequivocality Test: Unequivocally points to his intention to commit the relevant offence per Davey v Lee.
➢ Rubicon Test: Where D cannot turn back. This is a specific test showing that D is in process of committing offence when
something is done objectively wrong.
➢ The last act test (check if this is the same as specific tests undertaken showing he is in process of committing offence)
! The role of the act is constitutive in the objective test. But the act is mere evidence for the subjective test (to showcase of the
mens rea); the role of the act is less important.
→ Why is there difficulty in asserting when an attempt begins?
It is difficult to differentiate between mere preparation and actual attempt. For instance, where there is proximity with
the victim, is it past the preparatory stage?
Different proposed articulations: Performing act that is “part of series”, “last act”, “immediately connected”, points
“unequivocally” to intention, etc.
It is difficult to draw a line because of the element of D changing his mind. Criminalising early thoughts does not account
for change in intentions; this problem is not seen in the last act test.
→ So, which test should be applied?
The common law approach is where there is a thwarted attempt is the objectivist approach; where there is a failed
attempt, the subjective test will be applied.
! A thwarted attempt: This is where D plans to commit the crime but, just before he is able to do so, someone or something
intervenes to prevent D from committing crimes.
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