LLB: CL Part A : Week 6

The actus reus of attempts

Most important and most difficult question is:How much must have been done?

Subjectivist (culpability centred) approach

• Justification of attempt liability: Person shows that he is a dangerous or culpable person

• The act is not important in its own right but as providing evidence of the culpability/dangerousness of the person

• Result (in general): attempt is constituted in an early stage

• Focus on: 'what has already been done' (not: 'what still remains to be done')

•Criterion: is act clear evidence of the defendant's intent to commit the crime?

MPC's substantial step test (1)

§ 5.01 Model Penal Code:

1. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he .

!!! ..(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. !!!

MPC's substantial step test (2)

§ 5.01 Model Penal Code:

(2) Conduct That May Be Held Substantial Step Under Subsection

(1)(c). Conduct shall not be held to constitute a substantial step under Subsection

(1)(c) of this Section unless it is !! strongly corroborative of the actor's criminal purpose. !! Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:

• (a) lying in wait, searching for or following the contemplated victim of the crime;

• (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;

• (c) reconnoitering the place contemplated for the commission of the crime;

• (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

• (e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;

Objectivist (harm centred) approach

• Justification of attempt liability: committing an act that is dangerousto a legal interest

• Result (in general): attempt is constituted in a late stage

• Focus on: 'what still remains to be done' (not: 'what has already been done')

•Criterion: is there an act of manifest criminality?

Examples of objectivist tests

•Section 1(1) English Criminal Attempts Act 1981:

- 1. If with intent to commit a crime to which this section applies, a person does ! an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. !

•Art. 45 Dutch Criminal Code:

- An attempt to commit a crime is punishable where the perpetrator manifests his intention !! by initiating the crime. !!

Conspiracy

(...) if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either

—(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement,

or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.

Preparation

Art. 46 DCC:

- "Preparation to commit a crime which, by statutory definition, carries a term of imprisonment of not less than eight years, is punishable, where the perpetrator intentionally obtains, manufactures, imports, transits, exports or has at his disposal, objects, substances, information carriers, spaces or means of transport intended for the commission of the crime."

Mens rea of attempts ( 1)

•Art. 45 DCC:

- "(1) An attempt to commit a crime is punishable where the perpetrator manifests his intentionby initiating the serious offence."

•S. 1(1) Criminal Attempts Act 1981

- "(1) If, with intentto commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence."

Mens rea of attempts (2)

•Netherlands:

- Same requirements as for complete offences

- Thus, conditional intent suffices!

•England:

- Intention of committing the complete offence is required (direct or indirect intent)

- Might be more restrictive than in case of complete offence

- Intention as to circumstances is not required

Complete attempt

A complete attempt is when the defendant does everything he intended to do in order to effect the criminal project but this fails to bring about the intended consequence

Incomplete attempt

An incomplete attempt is when the defendant does not get to the point of executing the offence

Failed attempt

A failed attempt is when the defendant can no longer achieve the intended goal because of external circumstances

- victim refuses to give in to threat
- the object the thief wants to steal is not there

Relatively impossible attempts (Dutch law)

The means or the object is generally suitable for bringing about the envisaged harm, but due to extrinsic factors the means/object was unsuitable in the case at hand

Absolutely impossible attempts (Dutch law)

Attempts that under no circumstances can lead to the envisaged result

Voluntary withdrawal

•English law:

- No voluntary withdrawal

•Art. 46b DCC:

- "Neither preparation nor an attempt to commit a crime obtains where the crime has not been completed by reason of circumstances dependant on the perpetrator's will.

No voluntary withdrawal

• One can only withdraw from a preparation or an attempt

• Just thinking about an offence does not even amount to preparation

• First establish whether all requirements for preparation or attempt have been fulfilled!

Reasonable criminal test

Would the reason for the withdrawal lead a 'reasonable criminal' to abandon the criminal project?

- remorse?
- realizing the act is morally wrong?
- fear of getting caught by the police?
- realizing that you did not bring the right tools to break into a house?