6 Key excerpts on "Preliminary Offences"

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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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  Optimize Criminal Law

  • John Hendy, Odette Hutchinson(Authors)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  9

  Inchoate Offences

  Understand the law	• Can you identify which section of the Criminal Law Act 1977 relates to conspiracy? • Can you identify which section of the Criminal Attempts Act 1981 refers to the offence of attempt?
  Remember the details	• Can you remember the actus reus and mens rea for conspiracy and attempt? • Can you define the actus reus and mens rea of these offences using case law?
  Reflect critically on areas of debate	• Do you understand the definition of intention in relation to conspiracy, and how intention is established?
  Contextualise	• Are you able to contextualisethe different inchoate offences and relate them to other substantive offences?
  Apply your skills and knowledge	• Can you complete the activities in this chapter, using case law and legislation to support your work?

  Chapter Map

  Inchoate elements

  Inchoate elements

  As you work through this chapter, you will notice that inchoate offences are different from the offences that we have discussed in other chapters, largely because they are committed before the primary criminal act takes place. They cover the time when D progresses his thoughts or plans to commit a criminal offence into a reality, i.e. the preparatory stages in committing an offence.

  The focus of inchoate offences is on the activity that takes place before the crime if committed. Therefore, the primary offence is incomplete (inchoate). Conspiracy charges have been used against terrorist suspects in the UK who have been apprehended before carrying out their terrorist objectives.

  In this chapter we will consider:

  conspiracy;

  attempt;

  encouraging, or assisting.

  We will start our coverage of inchoate offences by considering the offence of conspiracy.

  Conspiracy

  Conspiracy is an agreement between parties to commit a crime, and this can be punished even where no positive steps have been taken to commit the intended offence. Conspiracy is set out in the

  Criminal Law Act (CLA) 1977

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  Law Made Simple

  • David L.A. Barker(Author)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  Income Tax Acts, National Insurance Act, Health and Safety at Work Act . Ministers appear to accept that the best way of ensuring compliance with the statute is to have a criminal law sanction; and as most of the charges are heard by unpaid magistrates this is no doubt an economic method. But it may be doubted whether the criminal law should be so vastly widened since even the minor offences involve prosecution before the criminal courts (see, for example, ‘Breaking the Rules’ – a report by Justice 1980).

  (d) Subordinate legislation

  Statute may empower a minister or some other body, e.g. a local authority, to make rules, orders or byelaws that may contain offences. If the minister exceeds the authority given by the statute he is said to have acted ultra vires and the rule will be invalid.

  12.3 Classifications

  Crimes may be classified as follows:

  (a) According to source

  See above.

  (b) According to method of trial

  The Criminal Law Act 1977 , provides as follows:

  1. indictable offences – triable in the Crown Court by judge and jury; e.g. murder, robbery;
  2. summary offences – triable by lay or stipendiary magistrates; e.g. most traffic offences;
  3. offences triable either way; e.g. theft.

  (c) Treason, arrestable offences, other offences

  Treason is an offence against the State. Arrestable offences are the more serious offences for which arrest may be made without a warrant. By s. 2 of the Criminal Law Act 1967 they are ones that have a fixed penalty, e.g. murder, or for which a person, not previously convicted, may under any enactment be sentenced for a term of five years, or attempts to commit such offences. Also, a statute may declare an offence that has a lesser sentence than five years to be arrestable, e.g. s. 12 of the Theft Act 1968 .

  ‘Other offences’ are the less serious ones.

  12.4 Criminal liability

  Almost all common-law offences and serious statutory offences require two elements, actus reus and mens rea ; in the words of the Latin maxim: actus non facit reum nisi mens sit rea . The easiest way to understand these elements is to think of actus reus as the physical act, and mens rea as the intent to do that act. Mens rea is the Latin for ‘guilty mind’ and traditionally refers to the state of mind of the person committing the offence. Some offences are satisfied with negligence instead of mens rea . Many minor statutory offences require proof only of the actus reus : these are called strict liability offences. In addition, a person may sometimes be vicariously liable in criminal law for the act and even mens rea

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  Essential GCSE Law

  • Kenny Chin(Author)
  • 2014(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  3  Criminal Law

  You should be familiar with the following areas:

  •    various elements in crime

  •    mens rea, actus reus and strict liability

  •    minors in criminal law

  •    definition and specific defences of murder

  •    different forms of manslaughter

  •    definitions and requirements of various assault offences

  •    definitions and requirements of theft and other offences against property

  •    various general defences and their applications

  Nature of criminal liability What is crime?

  Halsbury’s Laws of England defines crime as:

  … an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.

  Two main objectives of criminal law are: (a)    to punish and reform the offenders; and (b)    to protect the public and individuals from harm which may be caused by the unlawful act or default. Classification of crime The following are three main ways that various offences can be classified: Classification by the method of trial

  There are summary, indictable and either way offences. Summary offences are those which are triable in magistrates’ courts only and heard by magistrates. They are usually less serious crimes. Indictable offences are those which can only be tried in the Crown Court, heard by a judge and a jury. The judge deals with issues of law and the jury decides on facts. There are also either-way offences, which can be tried either in magistrates’ courts or the Crown Court. All criminal cases start in magistrates’ courts; therefore, if a case is an either way offence or an indictable offence, there are procedures to decide in which court the matter is to be heard and to transfer the case to the Crown Court. Further details of these procedures are stated in Chapter 9 .

  Statutory and common law offences

  Statutory offences are those crimes that are provided by Acts of Parliament or by delegated legislation. The Act or the regulation normally provides a statutory definition for the offence. All the elements stated in the definition have to be proven before an accused can be convicted. Examples include various offences against property such as theft, robbery, burglary and many others that are provided in the Theft Act 1968 and the Theft Act 1978. Common law offences are those which were created by the common law system, for example, murder. Some crimes can be statutory as well as common law offences, for example, assault and battery. The Offences Against the Person Act 1861 has defined several assault related offences providing different maximum penalties according to the seriousness of the offence. The Act, however, has not abolished the common law assault and battery, which therefore have survived the statute.

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  Criminal Law

  • Joycelyn M. Pollock(Author)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  CHAPTER 4 PREPARATORY ACTIVITY OFFENSES

  CHAPTER OUTLINE 4.1    Introduction 4.2    Attempt 4.3    Criminal Solicitation 4.4    Conspiracy 4.5    Summary LEARNING OBJECTIVES •  Explain the elements of attempt and the four tests used for the overt act element.

  •  Describe the actus reus and mens rea of solicitation.

  •  Describe the actus reus and mens rea of conspiracy.

  •  Define the Pinkerton Rule and the Wharton Rule. •  Explain the elements of RICO.

  CASES

  Factual/Legal Impossibility:	United States v. Helder, 452 F.3d 751 (2006)
  Attempt/Substantial Step:	Washington v. Johnson, 173 Wn.2d 895 (2012)
  Factual/Legal Impossibility:	Commonwealth v. Henley, 504 PA 408 (1984)
  Conspiracy:	Bolden v. Nevada, 124 P.3d 191, 121 Nev. Adv. Rptr 86 (2005)
  Conspiracy:	Smith v. United States, No. 11-8976, Decided Jan. 9, 2013

  § 4.1  INTRODUCTION

  The most common preparatory activity crimes are “attempt,” “solicitation,” and “conspiracy.” Legislative bodies have provided penalties for these preparatory acts to punish those who have not actually perpetrated a substantive crime, but have been involved in preparing to commit a crime.

  In this chapter, the three most often charged preparatory activity crimes (attempt, solicitation, and conspiracy) are defined and explained. These crimes are often called

  inchoate crimes

  ; inchoate means incomplete.

  § 4.2  ATTEMPT

  An

  attempt

  to commit a crime has been defined as an act done with intent to commit a crime, beyond mere preparation, but falling short of its actual commission.1 It is also defined as “any overt act done with intent to commit the crime which and except for the interference of some cause preventing the carrying out of the intent, would have resulted in the commission of the crime.”2

  The distinction between “intent” and an “attempt” to do a thing is that the former implies the purpose only, while the latter implies both the purpose and an actual effort to carry that purpose into execution. Attempt crimes permit the courts to adjudge a penalty in cases in which conduct falls short of a completed substantive crime, an attempt to commit a crime is, as a general rule, an indictable offense that is separate and distinct from the substantive crime.3

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  Law Relating To Theft

  • C. Walsh, Edward Phillips, P. Dobson, Edward Phillips, P. Dobson(Authors)
  • 2001(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  We need to bear in mind the laws relating to criminal damage, computer misuse, conspiracy to defraud, offences relating to forgery and counterfeiting, criminal nuisances or trespasses and, indeed, offences relating to terrorism and hijacking which may have considerable implications for property holdings. Many ‘regulatory offences’, such as those relating to pollution and safety precautions, are also relevant, as are laws relating to ‘intellectual property’ and the protection of copyrights, computer software and data and performing rights. 60 Unfortunately, while successive governments are ready to enact piecemeal reforms for short term effect, they appear to lack the political will for the root and branch reforms suggested by the various commentators and the Law Commission. 61 It also remains to be seen if the law on theft will be immune to any challenge raised by the incorporation of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the Human Rights Act 1998. Concern has already been raised by the Law Commission, in its Consultation Paper on Fraud and Deception, 62 on possible incompatibility. 63 1 A prime example would be the use of injunctions to deal with breaches of property (ie, land) rights. 2 The historical background to the English criminal law relating to property is adequately dealt with elsewhere. Reference may usefully be made to: Smith, ATH, Chapter 1 ; Lacey, N and Wells, C, Reconstructing Criminal Law, 2nd edn, 1998, Butterworths, Chapter 3. See, also, the introductory chapters in Smith, JC and Griew. 3 Criminal Law Commissioners, First Report, 1834, Parliamentary Papers xxvi, p 117. 4 There is a brief account of these in Smith, JC, para 1-13. 5 Smith, JC, para 1-02. 6 Smith, ATH, para 1-15. 7 CLRC, Eighth Report, Cmnd 2977, 1966, London: HMSO. 8 Op cit, Lacey and Wells, fn 2, p 263. 9 Op cit, Lacey and Wells, fn 2, para 33

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