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To what extent is preparing to commit a criminal offence currently criminalised? Should a general offence of ‘criminal preparation’ be introduced?£5.46
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This essay answers the following question: To what extent is preparing to commit a criminal offence currently criminalised? Should a general offence of ‘criminal preparation’ be introduced?
Criminal preparation is currently contained within three inchoate offences, namely: conspiracy, encour...
Victoria Cota Salgueiro St-Edmund’s College February 15th, 2022
To what extent is preparing to commit a criminal offence currently criminalised? Should a
general offence of ‘criminal preparation’ be introduced?
Criminal preparation is currently contained within three inchoate offences, namely:
conspiracy, encouragement and assistance and attempt. These offences are of varying
degree, and I shall look at each of them in turn, highlighting the issues they raise. I will then
determine whether introducing a general offence of criminal preparation would resolve the
issues of each individual offence, arguing that it would not. Therefore, in this essay I argue
that a general offence of criminal preparation ought not to be introduced.
Criminal preparation through the lens of the inchoate offences
1. Conspiracy
The offence of conspiracy is legislated under section 1 of the Criminal Law 1977, which
states that the offence of conspiracy occurs when two or more individuals agree that ‘a
course of conduct shall be pursued which, if the agreement is carried out in accordance with
their intentions’ will either involve the commission of any offence by at least one of the
parties, even if the commission of the offence would be impossible. For example, in R v
Anderson [1985], the defendant was convicted of conspiracy of making a prisoner escape
despite not carrying out the role he agreed to undertake in order to bring about the offence.
In other words, only an agreement with intention needs to be proven to satisfy the
requirements for conspiracy.
Therefore, this offence is remarkably broad and can be seen as overly preventive. Some
American jurisdictions resolve this issue by only holding parties liable for conspiracy when
one of them carries out an overt act in pursuance of their criminal objective. This American
approach may be replicated in a general offence of criminal preparation, on which I will
elaborate below. Contrastingly, the other issue of conspiracy as an offence is that its scope
is quite narrow. Indeed, conspiracies rarely come alone, and the pursuance of a criminal act
through an attempt or other offence is often used as proof of conspiracy. In practice, “pure”
conspiracies are rarely prosecuted, which brings about the question of whether conspiracy
as an offence should even exist in the first place.
2. Encouragement and assistance
The offence of encouraging and assisting a crime is laid out in three separate offences in
sections 44 to 46 of the Serious Crime Act 2007. Each of these offences share the actus reus
of performing an act which is capable of encouraging or assisting the commission of a
substantive offence. They distinguish themselves in terms of mens rea. Section 44 requires
an intent to encourage or assist the commission of the substantive offence. A belief that the
offence will be committed as a result of one’s encouraging act is sufficient to satisfy the
mens rea of section 45. Section 46 is similar to the latter but relates to multiple offences
instead of a singular one.
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