Attempt

Question 1

What does acceptilation mean?

Answer 1

The extinction of debt by an arrangement which falls short of full performance.

Question 2

What are inchoate crimes?

Answer 2

The term given to the conduct prior to the successful completion of a crime and can itself constitute a crime.

Question 3

What are the types of inchoate crimes?

Answer 3

• attempt
• conspiracy
• incitement

Question 4

What are the two types of categories attempted crimes fall into?

Answer 4

1. Where there has been an act designed to bring about a substantive crime, and which would have happened if it wasn’t for an unforeseen event. e.g. try to set fir to a building but it’s put out.
2. This type of attempted crime occurs where there has been an act designed to bring about a substantive crime, but the expected result does not occur because of a misjudgment or mistake on the part of the perpetrator.

Question 5

What piece of legislation criminalises attempted crimes?

Answer 5

Section 294 of the Criminal Procedure (Scotland) Act 1995

Question 6

Give three reasons why attempted crimes are punished.

Answer 6

• Because people who try to commit crimes can be just as dangerous as those who successfully do.
• Acts as a deterrence.
• Allows the police to intervene at an early stage. Without inchoate offences they could not intervene until it was too late.

Question 7

What are disguised attempts?

Answer 7

A range of statutory offences which are targeted at preventing crimes and which prohibit preparations to commit crimes.

Question 8

How does the mens rea for an attempted crime differ from a complete crime?

Answer 8

It doesn’t. Mens rea is the same.

Question 9

Can one try to commit a crime of recklessness?

Answer 9

Yes. e.g. a guy shoots a gun all over the place in a field. If he had hit someone he would have had the second category of mens rea i.e. recklessness.

Question 10

What case is the authority for the mens rea for an attempted crime being the same for a completed crime?

Answer 10

Cawthorne v HM Advocate

Question 11

Why is actus reus difficult to determine in attempted crimes?

Answer 11

Difficult to draw the line between a criminal attempt and non-criminal preparations.

Question 12

What are the three tests for determining when there has been an attempted crime?

Answer 12

• the irrecovability theory
• the last act theory
• perpetration theory

Question 13

what is the irrevocability theory?

Answer 13

HM Advocate v MacKenzie favoured this approach.

Theory believes that a criminal attempt cannot be committed at a stage before the final chain of events is irrecoverable by the actions of the accused.

Question 14

what is the last act theory?

Answer 14

Theory suggests that a criminal attempt occurs when an accused has done all that they believe necessary to commit the proposed crime.

Question 15

what is the perpetration theory?

Answer 15

Involves asking whether or not the accused has committed an act which is sufficiently proximate to the commission of the completed crime.

Question 16

What is the case authority for perpetration theory?

Answer 16

HM Advocate v Camerons where court said the fundamental issue for attempt was figuring out where preparation ends and perpetration begins.

Question 17

Can the accused by convicted for attempting to commit a crime that could not have been successful i.e. an impossible crime?

Answer 17

Yes because the accused has mens rea and has moved from preparation to perpetration.

Question 18

What is the significance of Docherty v Brown?

Answer 18

Found that the impossibility of completing the intending result was not a general defence. The court that the physical impossibility of the crime just meant the accused could not be convicted of a complete crime.

Question 19

What are two problems with impossible attempts?

Answer 19

Impossible attempts do not always demonstrate the criminal seriousness needed.

Impossible attempts sometimes when viewed objectively are harmless. This risks innocent people being punished.

Question 20

what happens if the accused attempted a crime using a method that is inherently impossible?

Answer 20

Court has to determine how dangerous the accused is and if a conviction is necessary.

Question 21

What happens if the accused thought they were committing a crime but they weren’t?

Answer 21

Regardless of the accused’s intention, they cannot be accused of a crime that doesn’t exist. Links to the principle of prospectivity.