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Criminal Law The Law Commission (LAW COM. No. 102) CRIMINAL LAW ATTEMPT, AND IMPOSSIBILITY IN RELATION TO ATTEMPT, CONSPIRACY AND INCITEMENT Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1%.5 Ordered by The House of Commons to be printed 25th June 1980 LONDON HER MAJESTY'S STATIONERY OFFICE f3.75 net 646 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are- The Honourable Mr. Justice Kerr, Chairman. Mr. Stephen M. Cretney. Mr. Stephen Edell. Mr. W. A. B. Forbes, Q.C. Dr. Peter M. North. The Secretary of the Law Commission is Mr. J. C. R. Fieldsend and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London, WClN 2BQ. 11 ATTEMPT. AND IMPOSSIBILITY IN RELATION TO ATTEMPT. INCITEMENT AND CONSPIRACY CONTENTS Paragraph Page PART I INTRODUCTION ......... 1.1-1.9 1 PART I1 ATTEMPT ............2.1-2.143 3 A . INTRODUCTION ........... 2.1-2.2 3 B . PRELIMINARY ISSUES RELATING TO ATTEMPT .............. 2.3-2.9 4 1. Retention of separate inchoate offences ... 2.4-2.5 4 2 . The need for a general law of attempt .... 2.6 5 3 . Retention of the concept of attempt .... 2.7-2.9 6 C . THE MENTAL ELEMENT IN ATTEMPT ...2.10-2.18 8 1. The Working Party’s formulation and the present law ..........0 ... 2.11-2.13 8 2. Conclusions and recommendations ..... 2.14-2.18 10 D . THE ACTUS REUS IN ATTEMPT .....2.19-2.52 13 1. The attempt theories .......... 2.22-2.37 14 (a) The “first stage” theory .......2.22-2.23 14 (b) The “final stage” theory .......2.24-2.25 15 (c) The “unequivocal act” theory ..... 2.26 16 (d) The “proximity” test ........2.27-2.29 17 (e) The “substantial step” test ......2.30-2.37 18 (i) The Working Party’s proposals ....2.30-2.31 18 (ii) Consideration of the “substantial step” test .............2.32-2.37 19 2 . The present law reconsidered ........ 2.38-2.44 22 3. Recommendations as to the actus reus ....2.45-2.52 25 (a) Content of the actus reus .......2.462.49 26 (b) Issues of law and fact ........2.50-2.52 27 E . ATTEMPTING THE IMPOSSIBLE .....2.53-2.100 29 1. The present law ........... 2.53-2.65 29 (a) Haughton v . Smith .........2.53-2.60 29 (6) Subsequent cases .......... 2.61-2.65 33 ... 111 Paragraph Page 2 . Impossibility in other systems of law ....2.66-2.84 36 (a) Scotland ............. 2.67 37 (b) The draft Criminal Code of 1879 .... 2.68 37 (c) Canada ............. 2.69 38 (6)Australia ............ 2.70-2.75 38 (e) New Zealand ...........2.76-2.77 40 (f) South Africa ........... 2.78 42 (9) United- States of America .......2.79-2.81 42 (h) France ............. 2.82 44 (i) Germany ............ 2.83 45 Q Conclusion ............ 2.84 45 3 . Consideration of the present law ......2.85-2.98 45 4 . Conclusions and recommendations .....2.99-2.100 53 F . PROCEDURAL ISSUE§ RELATING TO ATTEMPT ..............2.101-2.119 54 1. Attempts and summary offences ......2.102-2.105 54 2 . Mode of trial and penalties .......2.106-2.1 10 56 (a) Mode of trial ........... 2.106 56 (b) Penalties .............2.107-2.1 10 57 3. Conviction of alternative offences .....2.111-2.115 59 1 (a) The doctrine of merger ........2.11 1-2.11 3 59 (b) Conviction of alternative offence of attempt ' on summary trial ..........2.1 14-2.11 5 60 ~ 4 . Restrictions on prosecution ....... 2.1 16 61 5. Powers of arrest, search and forfeiture .... 2.117 61 6 . Offences by bodies corporate ....... 2.11 8 62 , 7 . Corroboration ............ 2.119 62 I G . ATTEMPT AND OTHER OFFENCE§ ...2.120-2.130 63 1. Attempt and other inchoate offences ....2.121-2.122 63 (a) Attempt to incite .......... 2.121 63 (b) Attempt to conspire ......... 2.122 63 2. Attempts to aid and abet ........ 2.123 64 3 . Attempts to commit offences under sections 4(1) and 5(1) of the Criminal Law Act 1967 ...2.124-2.126 64 4 . Offences of attempt in existing legislation ...2.127-2.130 66 H . POSSIBLE DEFENCE OF WITHDRAWAL . 2.131-2.133 68 I . THE EXTRATERRITORIAL OPERATION OF ATTEMPT ..............2.1342.141 69 1. Statement of the problems ........2.1342.139 69 2 . Conclusions and recommendations .....2.140-2.141 72 J . ABOLITION AND REPEALS .......2.142-2.143 73 1. Abolition ............. 2.142 73 2 . Repeals .............. 2.143 74 iv Paragraph Page PART I11 CONSPIRACY AND IMPOSSIBILITY. 3.1-3.8 74 A. INTRODUCTION ........... 3.1 74 B. THE EXISTING LAW .......... 3.2-3.5 75 C. CONCLUSIONS AND RECOMMENDATIONS . 3.63.8 77 PARTIV INCITINGTHE IMPOSSIBLE .... 4.1-4.4 79 PART V SUMMARY OF RECOMMENDATIONS . 5.1-5.2 81 APPENDIXA Draft Criminal Attempts Bill and Explanatory Notes 85 APPENDIXB Membership of the Law Commission’s Working Party upon the General Principles of the Criminal Law 102 APPENDIXC Organisations and individuals who commented on the Law Commission’s Working Paper No. 50, “Inchoate Offences” 103 APPENDIXD Participants in a seminar held at All Souls’ College, Ocford on 5-6 April 1974, to discuss the Law Commission’s Working Paper No. 50, “Inchoate Offences” 104 APPENDIXE “Conditional Intent” and R. v. Husseyn. 105 V I THE LAW COMMISSION Item XVIII of the Second Programme CRIMINAL LAW ATTEMPT, AND IMPOSSIBILITY IN RELATION TO ATTEMPT, CONSPIRACY AND INCITEMENT To the Right Honourable the Lord Hailsham of St. Marylebone, C.H., Lord High Chancellor of Great Britain PART I INTRODUCTION 1.1 In our Second Programme of Law Reform1 we recommended a comprehensive examination of the criminal law with a view to its codification. We recommended that we should examine the general principles of the criminal law with the assistance of a Working Party. The constitution of this Working Party is given in Appendix B. 1.2 As part of the examination of the general principles the Working Party made provisional proposals in regard to the three common law offences of attempt, incitement and conspiracy which we published as a Working Paper on Inchoate Offences.2 These are known as inchoate offences since they may be committed notwithstanding that the substantive offence to which they relate is not committed. 1.3 During our consultations on this Working Paper the application of the law of conspiracy in certain areas3 made it necessary for us to give first priority to consideration of particular aspects of criminal conspiracy. This we did in three separate Working paper^.^ Ultimately at the request of your predecessor we prepared as a matter of urgency our recommendations on the inchoate offence of conspiracy and on the matters considered in the three Working Papers. This was published as our Report on Conspiracy and Criminal Law Ref~rm,~and many of our recommendations, including those relating l(1968) Law Corn. No. 14, Item XVIII. 2 (1973) Working Paper No. 50, Inchoate Olfences: Conspiracy, Attempt and Incitement. E.g. corrupting public morals, Knuller v. D.P.P. (19731 A.C. 435; conspiracy to trespass, Kamara v. D.P.P. [I9741 A.C. 104; conspiracy to effect a public mischief, Withers v. D.P.P. [1975] A.C.842; conspiracy in regard to flying pickets, R. v. Jones (1974) 59 Cr. App. R. 120. (1974) Working Paper No. 54, Offences of Entering and Remaining on Properly; (1974) Work- ing Paper No. 57, Conspiracies relating to Morals and Decency; (1975) Working Paper No. 63, Conspiracies to Ejfect a Public Mischief and to Commit a Civil Wrong. We also issued in 1974 Working Paper No. 56, Conspiracy to Defraud and in 1975 Working Paper No. 62, Offences relating to the Administration qf Justice (which examined conspiracy to pervert the course of justice). (1976) Law Com. No. 76; the recommendations in relation to the subject matter of Working Paper No. 57 (see n. 4, above) were not implemented by the Criminal Law Act 1977. The Govern- ment instead decided that a more wide-ranging review of the laws relating to obscenity and indecency was needed than our terms of reference permitted. This led to the setting up of the Williams Committee on Obscenity and Film Censorship, whose Report was published in November 1979 (Cmnd. 7772). 1 to the inchoate offence of conspiracy, were implemented by the Criminal Law Act 1977. 1.4 Following the Report on Conspiracy it was our intention to deal with the remaining inchoate offences of attempt and incitement in a single further report. Examination of aspects of incitement, however, led us to conclude that there were problems which could not be resolved satisfactorily without a parallel examination of related problems in the law of complicity in crime, a topic upon which we have published a Working Paper prepared by the Working Party.6 1.5 If in regard to complicity in crime we were to recommend that there should be an offence of aiding, abetting, counselling or procuring crime which is not dependent on proof that a substantive offence had been committed, there would be no need for a separate inchoate offence of incitement. There has been strong and cogently argued academic support for this approach.’ But even if it were decided that incitement should continue to be a separate inchoate offence there remain many issues which it would be difficult to discuss without reference to the law of aiding and abetting.
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