Consultation Paper on Inchoate Offences - Law Reform Commission

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preparatory. Ormerod quotes Rowlatt J saying an actor is attempting crimewhen he is “on the job”. 75 When you‟re on the job your acts may have thecharacteristic of being preparatory, but they are not “only” or “just” or“merely” preparatory. Ormerod cites R v Tosti 76 as illustrating thesignificance of “merely” in section 1 of the 1981 Act. And indeed the Courtin Tosti described acts as “preparatory, but not merely so”. 772.48 But what does “on the job” mean? For Ormerod it means“attempt”. 78 Thus, the process of applying the codified actus reus of attemptin England appears to be circular. The 1981 Act aims to tell what a criminalattempt is. It says it is more than merely preparatory acts towards crime.How do the jury decide which acts are more than merely preparatory? Theanswer: if they constitute attempt.2.49 Here lies the basis of a critique of the 1981 Act articulated by IanDennis in the early 1980s. Dennis criticised the 1981 Act for not givingguidance as to what constitutes attempt, that the “more than merelypreparatory” test is even more open-textured than the common law tests andthat the 1981 Act presents as a rule what is really a principle that merelypreparatory acts should not be criminalised as attempts. 79 The Act does nottell the tribunal of fact how to distinguish between merely preparatory actsand something more.2.50 Perhaps, though, what Dennis laments as imprecise – andOrmerod refrains from criticising – is a good thing, for it bases the law ofattempts on the ordinary meaning of attempt. Yet if basing attempt law onthe ordinary meaning of attempt is what is desired why did the LawCommission for England and Wales not just propose a statutory provision747576777879The 1981 Act was read as stating a last act test in Widdowson (1985) 82 Cr App R314, 318-319. R v Geddes [1996] Crim LR 894 is seen by the Law Commission forEngland and Wales as applying a test for attempt that is too restricted. See LawCommission for England and Wales <strong>Consultation</strong> <strong>Paper</strong> on Conspiracy and Attempts(CP No 183 2007) at 14.15-14.16.Osborn (1919) 84 JP 63.[1997] Crim LR 746.Ormerod Smith & Hogan: Criminal Law (11th Ed Oxford University Press 2005) at410 (footnote 370).Ormerod Smith & Hogan: Criminal Law (11th Ed Oxford University Press 2005) at411.Dennis “The Law Commission Report on Attempt and Impossibility in Relation toAttempt, Conspiracy and Incitement: (1) The Elements of Attempt” [1980] Crim LR758, 768 commenting on Law Commission for England and Wales Report on Attempt,and Impossibility in Relation to Attempt, Conspiracy and Incitement (No 102 1980).Dennis re-affirms the critique in “The Criminal Attempts Act 1981” [1982] Crim LR5 at 8.37
providing, bluntly, that attempting to commit crimes is criminal, and that thisit is for the jury to decide? Dennis canvassed this possibility as “[o]neradical answer” but, we may add, an answer nonetheless. That so manycourts and experts proclaim the intractable elusiveness of a precise formulafor identifying criminal attempts may be because such a formula does notexist. If it does not exist then settling for the simple ordinary languagedescription of attempt is a sensible option. 802.51 The “more than merely preparatory” test suffers a similarweakness to that of the proximity test. That is, many acts could be describedas merely preparatory, but they could also be described as more than merelypreparatory. The problem is apparent in R v Campbell. 81 The defendant wasapprehended as he was about to enter a Post Office with an imitation gun,sunglasses, and a threatening note. The Court of Appeal held that becausehe had yet to enter the place of the intended robbery, the defendant‟s actshad not progressed beyond mere preparation and thus could not beconsidered a criminal attempt to commit robbery. This decision has beencriticised for undermining police efforts to prevent crime since it means theymust – if a prosecution for attempt is to be achieved – hold off intervening. 82The decision also illustrates the malleability of the “more than merelypreparatory” formula because the judges‟ choosing of the perimeter of thePost Office building as the dividing line between mere preparation andattempt was not something mandated by the text of the 1981 Act. Again, theCourt‟s decision could be otherwise and yet claim with at least equalplausibility to be consistent with the 1981 Act. That is, in walking purposelytowards the Post Office door the defendant could be said to have advancedbeyond the merely preparatory acts of equipping himself with a fake gun androbbery note.2.52 Further illustration of this indeterminacy criticism is provided bycontrasting R v Geddes 83 with R v Tosti. 84 In Geddes the defendant had beenin a boys‟ school toilet in possession of, among other things, a knife andrope. The Court of Appeal 85 held what the defendant had done was notbeyond mere preparation and accordingly quashed his conviction forattempted false imprisonment. In Tosti the defendants had run off when seen808182838485See Dennis “The Law Commission Report on Attempt and Impossibility in Relationto Attempt, Conspiracy and Incitement: (1) The Elements of Attempt” [1980] CrimLR 758 at 768.[1991] Crim LR 268.JC Smith‟s commentary [1991] Crim LR 268 at 269.[1996] Crim LR 894.[1997] Crim LR 746.Bingham CJ, Ognall and Astill JJ.38
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Consultation <stro
Page 4 and 5:
Law Reform CommissionTHE LAW REFORM
Page 6 and 7: Law Reform CommissionLaw Reform Res
Page 8 and 9: Law Reform CommissionContact Detail
Page 10 and 11: TABLE OF CONTENTSTable of Legislati
Page 12: TABLE OF LEGISLATIONAbortion Act 19
Page 15 and 16: Lajoie v R [1974] SCR 399 CanLeigh
Page 17 and 18: R v O‟Brien [1954] SCR 666 CanR v
Page 20 and 21: INTRODUCTIONABackground to the proj
Page 22 and 23: 5. Inchoate offences do not exist i
Page 24 and 25: 11. Chapter 1 explores the nature o
Page 26 and 27: CHAPTER 1INCHOATE LIABILITYAIntrodu
Page 28 and 29: its pure relational form as an agre
Page 30 and 31: D(1) LegalityCriminal law theory en
Page 32 and 33: 1.16 Some textbook writers reverse
Page 34 and 35: one resulted in conviction by the j
Page 36 and 37: 1.30 Evident here is a principled r
Page 38: excusatory defences 51legitimate de
Page 41 and 42: codifying inchoate offences will be
Page 43 and 44: called “the proximity rule” to
Page 45 and 46: Appeal, was because more than one i
Page 47 and 48: accused for which she stood trial a
Page 49 and 50: defendant had progressed well beyon
Page 51 and 52: And it is costly to try - police an
Page 53 and 54: and subsequently abolished in New Z
Page 55: “proximate” was more like “ne
Page 59 and 60: unlawful entry of a structure, vehi
Page 61 and 62: drafted by James Fitzjames Stephen,
Page 63 and 64: 2.68 The Law Commission for England
Page 65 and 66: crime; (2) an overt act toward the
Page 67 and 68: (3) D commits an offence or an act
Page 69 and 70: the Court of Criminal Appeal has ap
Page 71 and 72: activity. Purposive activity is int
Page 73 and 74: a Working Party assisting the Law C
Page 75 and 76: consequences/circumstances distinct
Page 77 and 78: inchoate liability) because such pr
Page 79 and 80: Oireachtas has sole law-making powe
Page 81 and 82: either label could be applied to a
Page 83 and 84: 2.135 Perhaps Walsh J, when imagini
Page 85 and 86: subjectivist approach to impossibil
Page 87 and 88: man carried away his own umbrella d
Page 89 and 90: just to make it look like he would
Page 91 and 92: ii)Having an abandonment defence gi
Page 93 and 94: i) The would-be perpetrator had a c
Page 96 and 97: 3CHAPTER 3CONSPIRACYAIntroduction3.
Page 98 and 99: two or more persons involving resol
Page 100 and 101: 3.12 The People (Attorney General)
Page 102 and 103: the Brighton Conspiracy Case 37 sta
Page 104 and 105: Henchy J went on to state, obiter,
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conspiracy is exempt from liability
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Subsequently, in R v Anderson, 73 t
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(b)(i)Non-criminal unlawfulnessTort
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“[A]n agreement by two or more by
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decency, which has an ancillary inc
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where they will fall in.” The ice
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abolishing the latter but not the f
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G(a)Abandonment of a conspiracyThe
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4CHAPTER 4INCITEMENTAIntroduction4.
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approach to that of the common law.
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(v)Incitement need not be directed
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verbs used to describe a physical a
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4.23 It is noted that while the act
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direction. The analysis of criminal
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(iii)Inciting non-criminal conduct4
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encouragement or assistance will in
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Convention on Human Rights. 75 Inci
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conduct incited. This position was
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5CHAPTER 5PROVISIONAL RECOMMENDATIO
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(4) Impossible conspiracies5.21 The
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The Law Reform Commission is an ind
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Consultation Paper on Inchoate Offences - Law Reform Commission

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