Consultation Paper on Inchoate Offences - Law Reform Commission

consequences/circumstances distinction where necessary. The interpretationof the common law in the English cases could be cited as persuasiveauthority. Alternatively, the attempt provision could explicitly endorse thedistinction. This is done in the Draft Criminal Code for England and Wales,Clause 49(2) provides:“[A]n intention to commit an offence is an intention with respectto all the elements of the offence other than fault elements, exceptthat recklessness with respect to a circumstance suffices where itsuffices for the offence itself.” 1512.107 The Commission invites submissions on whether the definition ofmens rea for criminal attempt should employ an expressconsequences/circumstances distinction.(3) The target of an attempt(a)Special part offences2.108 It is key, and perhaps obvious, to note that criminal attempts relateor attach to substantive (or special part) offences. A criminal attempt is anattempt to commit a specific offence, which can be called the target offence.Under the common law scheme of attempt liability, it is not that some“attempts” (in the general sense of the word) are criminal. Rather,attempting crimes is criminal. Criminal attempts are entirely parasitic on thespecial part offences.2.109 At this stage it is worth recording what the law‟s view is on whichcrimes it is criminal to attempt to commit, for it is not simply the case that itis clearly a criminal attempt to attempt any and all crimes. Which specificoffences or what type of offence qualify as the target offence?Commentators suggest that at common law it is not an offence to attempt asummary offence, that only indictable offences can be criminallyattempted. 152 No clear authority is cited for this proposition; it seems to bejust a “generally accepted view.” 153 Proceeding on the basis that onlyattempts to commit indictable offences are criminal, some exceptionsremain.151152153Law Commission for England and Wales A Criminal Code for England and Wales,Volume 1: Report and Draft Criminal Code Bill (No. 177 1989).Ormerod, Smith & Hogan Criminal Law (11 th ed Oxford University Press 2005) at416. Law Commission for England and Wales Working <strong>Paper</strong> on Codification of thecriminal law: general principles: inchoate offences: conspiracy, attempt andincitement (WP No 50 1973) at 73-74 and Report on Attempt, and Impossibility inRelation to Attempt, Conspiracy and Incitement (No 102 1980) at 54-55.Law Commission for England and Wales Working <strong>Paper</strong> on Codification of thecriminal law: general principles: inchoate offences: conspiracy, attempt andincitement (WP No 50 1973) at 73.56