Inchoate Offences - Attempt and Preparation

Question 1

What is the difference between manifest criminality and subjective criminality?

Answer 1

1. Manifest criminality:
   - Focuses on the criminal conduct
   - Mere thoughts should not be punished as they occurred in the private sphere - It would be an intrusion of privacy
   - Inchoate offences can only be criminalised when the actor comes close to bringing about a tangible harm or evil
2. Subjective criminality:
   - Focuses on the actor’s intention to harm
   - Conduct is only used for an evidentiary function - To prove that there was an intention to do wrong

Question 2

What is conspiracy?

Answer 2

1. Proscription of the formation of an agreement to commit a serious crime - The parties must intend that the agreement will be carried out and that the crime will be committed
2. Used broadly in England, less in GR and NL

Question 3

What is the Dutch doctrine regarding preparation?

Answer 3

1. Strongly focused on subjective criminality  But limited to a certain type of crimes (not less than 8 years)
2. Actus Reus:
   - (i) Obtain, import, transit, export or have at his disposal
   - (ii) objects, substances, information carriers, concealed spaces or means of transport - Broad interpretation - Before 2007 must have been ‘manifestly intended’
   - The means do not necessarily have to provide a real possibility that the crime is committed but a hypothetical possibility that the offender might reach that point is sufficient (Samir A)
3. Mens Rea:
   - Intention to prepare a criminal offence - Must be shown independently of the means and it must be directed towards the commission of a particular crime

Question 4

What are the different rationales for punishing attempts?

Answer 4

1. Objective rationales:
   - Focus on the conduct
   - Requires a concrete endangerment
   - Stresses the importance of legal certainty and protecting individual liberties
2. Subjective rationales:
   - Focuses on the actor and crime prevention
   - Punishment imposed for attempts should be as severe as for the completed offence
   - Preferred by EN
3. Intermediate rationale:
   - Invokes both
   - Still does not require any concrete endangerment
   - Preferred by NL (more subjective) and GR (more objective)

Question 5

How are attempts criminalised in GR?

Answer 5

1. Mens Rea - Dolus eventualis is enough
2. Actus Reus:
   - Steps which will immediately lead to the completion of the offence - so that his conduct will without further steps lead to the commission of the offence (subjectively, according to the offender)
3. Attempts may be punished more leniently than the actual crime

Question 6

How are attempts criminalised in NL?

Answer 6

1. Mens Rea - Dolus eventualis is enough
2. Actus Reus:
   - Steps towards the initiation of the commission of the offence
   - From an outsider perspective (what is available to the public)
3. Objective - The actor must have initiated the offence
4. Subjective - The occurred conduct must manifest the would-be perpetrator’s intention
5. Mandatory reduction of the maximum penalty

Question 7

How are attempts criminalised in EN?

Answer 7

1. Mens Rea - Intention, recklessness is not enough
2. Actus Reus:
   - Attempting to commit an offence
   - More than merely preparatory (R v Gullefer) - The defendant must have embarked on the crime proper - According to his own perception
   - Not applied by the courts very consistently

Question 8

How are impossible attempts dealt with in NL?

Answer 8

1. Objective
2. Absolutely impossible attempts may not be criminalised - Because they pose no danger
3. Legal impossibilities are not punishable
4. Relatively impossible attempts - Still carry an inherent danger - May be criminalised

Question 9

How are impossible attempts dealt with in GR?

Answer 9

1. Mixed
2. There is a separate offence for factually impossible attempts - Punishable
3. Legal impossibilities and superstitious attempts - Not punishable

Question 10

How are impossible attempts dealt with in EN?

Answer 10

1. Subjective
2. Legal impossibilities - Not punishable
3. Factual impossibilities - Still punishable

Question 11

What about voluntary withdrawal? EN

Answer 11

Once an individual has exceeded the threshold for ‘merely preparatory’ it does not make a difference - Voluntary withdrawal is not a defence

Question 12

What about voluntary withdrawal? NL

Answer 12

1. The attempt must have begun
2. The offence in question must have still been possible to realise
3. The withdrawal must be voluntary
4. Use ‘reasonable criminal’ point of view
5. Incomplete attempt - The actor has not yet done everything required for the offence - Simple voluntary withdrawal is enough
6. Complete offence - The actor is just waiting for the result - Concrete counter action is required
7. This is assessed objectively

Question 13

What about voluntary withdrawal? GR

Answer 13

1. The attempt must have began
2. The offence in question must have still been possible to realise
3. The withdrawal must be voluntary
4. Use the point of view of the perpertrator at the time
5. Incomplete attempt - The actor has not yet done everything required for the offence - Simple voluntary withdrawal is enough
6. Complete offence - The actor is just waiting for the result - Concrete counter action is required
7. The attempt is incomplete as long as the offender has in his view not done everything necessary to achieve his goal but believes that by continuing he could reach it

Question 14

What was the influence of the Serious Crime Act on liability for inchoate offences?

Answer 14

1. Before, liability existed for inchoate incitement but not for inchoate assistance
2. After, 3 inchoate offences were created:
   - A person does an act capable of encouraging or assisting the commission of an offence, intending to encourage its commission
   - A person does an act capable of encouraging or assisting the commission, believing that it will be committed and believing that the act will encourage the commission
3. That is irrespective of whether the offence was actually committed or not