Chapter 3
RISK, PRE-EMPTION, AND THE LIMITS OF THE
CRIMINAL LAW
John Child and Adrian Hunt
Introduction
At the core of state driven approaches to criminal justice is the concept of
criminalisation. Formally speaking, the initial stage of criminalisation involves the
identification of behaviour thought serious or dangerous enough to merit criminal
punishment. However the mere identification of such behaviour is not sufficient to
criminalise the behaviour. Rather the behaviour must be defined in legislation as a
criminal offence. This chapter is concerned with a number of key trends and issues
associated with the process of identifying behaviour thought worthy of
criminalisation, as well as the process of definition of such behaviour as a criminal
offence. Our particular focus is the use of the process of criminalisation as a tool for
pre-empting harm, and therefore punishing those whose behaviour creates the risk that
harm may result from their actions.
As will be explained in the next section of this chapter, the use of criminal
offences as a pre-emptive tool is distinguishable from their use as an instrument for
punishing those who have already caused concrete harms. The popular conception of
criminalisation tends to assume it is concerned with behaviour which has caused
harm; however in reality the use of the criminal law in its pre-emptive mode – that is
to say defining offences which punish those whose behaviour creates the risk that
harm may result from their actions – is a pervasive trend. The use of the criminal law
in its pre-emptive mode involves extending the boundaries of the criminal law such
that it may catch a host of behaviours and actions which are significantly divorced
from actually causing concrete harms. In so doing therefore it involves a conscious
choice by the state formally to regulate, control or punish actions which would
otherwise fall to be controlled, if at all, by informal societal sanctions. Therefore in
exploring the use of criminal offences as a pre-emptive tool we are concerned with
one of the indicators of the formal boundaries of the “criminal justice system”.
In this chapter we raise issues associated with justifications for using criminal
law as a pre-emptive tool. In so doing we identify and explain a number of different
ways in which criminal offences may be defined or used as instruments of preemption. We then proceed to examine the consequences of different approaches
adopted to defining such offences with a view to examining whether the types of preemptive offences currently in use reflect a coherent, consistent and principled
justification for criminalisation of such behaviour.
~ 23 ~
Pre-emptive offences and other criminal offences
distinguished
The paradigm of criminal law in the liberal tradition involves proscribing culpable
actions of persons where those actions cause criminal harm.1 All elements of the
paradigm are the object of constant debate including questions concerning which type
of harm is an appropriate target for criminalisation and what should the relationship
be between culpability on the one hand and the type and seriousness of the harm
caused on the other. However, one feature of the paradigm which is constant is that
criminal liability arises only after the harm has been caused. Although there may be
some ex ante protection through the deterrent effect of the threat of punishment,
nonetheless criminal liability only arises after the victim has actually suffered the
criminal harm.
It is arguable that if one accepts that these harms are sufficiently serious and
wrongful to justify the imposition of criminal sanction, then it is not unreasonable to
suggest that the criminal law ought to be employed to protect people from such harms
being caused in the first place by facilitating official intervention before the resulting
harm can arise from an offender’s conduct. As Anthony Duff argues ‘[a] law that
condemned and punished actually harm-causing conduct as wrong, but was utterly
silent on attempts to cause such harms, and on reckless risk-taking with respect to
such harms, would speak with a strange moral voice.’2
Thus most developed legal systems have long provided for a mode of
criminalisation which departs from the paradigm.3 This mode criminalises conduct or
actions where the offence in question may be characterised as ‘non-consummate’
because the conduct proscribed ‘does not cause harm on each and every occasion in
which it is performed.’4 These offences, which are variously referred to as ‘inchoate’
[i.e. just begun], or ‘precursor’5 or ‘pre-emptive’6 or ‘preparatory’7 crimes, come in a
variety of different forms. The paradigmatic pre-emptive offences are what may be
termed the generally applicable inchoate offences, which target persons who attempt8
to commit, or conspire,9 assist or encourage10 others to commit a principal offence. By
definition, attempting, conspiring (i.e. agreeing) assisting or encouraging comes
before the substantive harm results. These general inchoate offences therefore
facilitate intervention at an earlier stage, with no requirement that the substantive
harm results at all.
Referred to by J.C. Smith as the ‘normal’ mode of definition. ‘The Element of Chance in Criminal
Liability’ [1971] Smith, Criminal Law Review 63.
2
Criminal Attempts (1996), Duff R.A, Clarendon Press: Oxford, 134.
3
For example, see ‘Taking the Will for the Deed: The Mediaeval Criminal Attempt’ (1992) Kiralfy,
The Journal of Legal History 95.
4
‘The Nature and Justifiability of Non-consummate Offenses’ (1995) Husak, 37 Arizona Law Review
151, 158.
5
Blackstone’s Guide to The Ant-Terrorism Legislation (2nd ed. 2009) Walker C, Oxford University
Press, 182.
6
‘Seeking Security by Eroding Rights: The Side-stepping of Due Process’ in Security and Human
Rights (2007) Zednar, in Goold B J and Lazarus L (eds), Hart Oxford, 259
7
‘Expanding the Boundaries of Inchoate Crimes The Growing Reliance on Preparatory Offences’ in
Regulating Deviance The Redirection of Criminalisation and the Futures of Criminal Law (2009)
McSherry, in McSherry B, Norrie A, and Bronitt S (eds), Hart, Oxford, 141.
8
Contrary to the Criminal Attempts Act 1981, s1.
9
Contrary to the Criminal Law Act 1977, s1.
10
Contrary to the Serious Crime Act 2007, Part 2.
1
~ 24 ~
It should be recognised that there are difficult decisions to be made about
criminalising conduct which is prior or preparatory to perceived or feared resulting
harms. The legislature and/or the courts have to determine ‘the point – within the
succession of stages along the criminal path’11 at which it is justifiable to impose
criminal liability and punishment. Should criminal liability attach to early preparatory
acts, or should it be confined to acts which are close in causal and time related
proximity to the feared or intended resulting harm? Imposing liability for the former
certainly facilitates pre-emptive action; but it involves an even more tenuous link with
the harm paradigm. Thus in the current British law of attempts, for instance, criminal
liability attaches only to acts which are ‘more than merely preparatory to the
commission of the offence’.12 Therefore, although attempt in British law is clearly a
departure from the paradigm since it clearly allows for intervention before any harm
has resulted, nonetheless there is some relationship between the conduct and the
feared resulting harm in the sense that clearly the risk that the harm may result is
greater the further along the path of criminal preparation the offender has progressed.
However, the catalogue of non-consummate offences available to British
authorities is not confined to the general inchoate offences. It also includes:




Double/infinite inchoate General Offences: For example conspiring with
someone to encourage someone else to commit a principal offence;
Bespoke inchoate offences: these are substantive offences that are defined in
an inchoate form. For example, the harm associated with fraud by false
representation relates to the causing of an illicit gain or loss by way of a
misrepresentation. The Fraud Act 200613 does not require that gain or loss
actually occurs as a consequence of the misrepresentation (it merely requires
the person intended his or her misrepresentation to cause this harm);
Endangerment offences: focusing on risk creating conduct. For example, the
offence of driving having drunk more than the prescribed limit of alcohol14
criminalises a driver for creating the risks associated with drink driving,
regardless of whether they cause any damage/harm as a consequence of their
drink driving; and
Possession offences: Where persons are criminalised for mere possession of
things which are considered to be dangerous and therefore may (in the future)
lead to harm. For example, possession of a firearm without a certificate.15
Hereafter, we will refer to these offences collectively as preparatory offences. 16 Not
only are these forms of inchoate liability very common within the criminal law, as we
will later explore, they are also capable of biting very much earlier in the process than
is the case with the general inchoate offences.
‘Responding to Acts Preparatory to the Commission of a Crime: Criminalization or Prevention?’
(2006) Ohana, 25 Criminal Justice Ethics 23.
12
Criminal Attempts Act 1981, s. 1(1)
13
S. 2.
14
Contrary to the Road Traffic Act 1988, s5(1).
15
Contrary to the Firearms Act 1968, s1.
16
We employ the label preparatory offences to distinguish these kinds of inchoate offences from the
general inchoate offences. It is a distinction in form and labelling that is explored by Mc Sherry in
‘Expanding the Boundaries of Inchoate Crimes The Growing Reliance on Preparatory Offences’ in
Regulating Deviance The Redirection of Criminalisation and the Futures of Criminal Law (2009)
McSherry B, Norrie A, and Bronitt S (eds), Hart, Oxford, 141.
11
~ 25 ~
There remains considerable academic controversy about inchoate offences
despite their seemingly increasing popularity with the legislature. How remote from
or proximate to the anticipated or feared prospective harm may/must the conduct in
question be in order to give rise to criminal liability? Is remoteness or proximity in
this context to be judged by reference to causative effect; temporal factors; level or
degree of danger or possibility that the harm would result or a combination of the all
of the above? How relevant is the relative seriousness of the prospective harm
anticipated or feared to the decision to impose criminal liability for the conduct? To
what extent, if any, is the person’s culpability as regards the feared resulting or
anticipated harm relevant to the imposition of criminal liability? Must they intend
their conduct to result in the harm, or at least be aware of the danger that it will result,
or is likely to result in it; or is it sufficient that they are indifferent to, or perhaps
subjectively entirely unaware of, the danger even if a ‘reasonable’ person would be
alive to it?
In acknowledging these issues we are presented with the problem that if we
maintain harm as the paradigm of the criminal law, then we must recognise inchoate
liability as an exception to or (minimally) an extension of that paradigm. Therefore, to
employ the criminal law to punish persons in the absence of primary resulting harms –
to extend the boundaries of the criminal liability – we must identify special
justifications.17 The requirement of a special justification or a compelling reason for
extending the law in this way is most expressly evident within debates surrounding
the general inchoate offences. In a recent flurry of Law Commission18 publications in
this area, the Commission evidently still believes that it not only has to restate the
advantages of inchoate liability in terms of pre-empting future harm, but that in
certain cases it must do so in order to justify their very existence. 19 Then, having
established a basis, we are led in each case through a detailed discussion of where the
lines of criminal intervention should be drawn. We balance the ability of the police to
make a timely intervention against the opportunity of the defendant to change his or
her mind: we examine whether reliance placed on the mental element of the offence
(often gained through confessions) will expose the defendant to the risk of police
abuse: and we examine the relative culpability of an offender as his or her conduct
moves closer to the principal harm and so on. Consistent principles of liability are
identified and then applied.20
However, as we have already identified, inchoate liability extends back
considerably further than the core general inchoate offences. Therefore, in the light of
our discussion above, it would be reasonable to imagine that these preparatory
offences are subject to a similar level of scrutiny. In fact, as many of these offences
are designed to criminalise persons at a considerably earlier stage than is the case with
the general inchoate offences, (hence the need for the offences at all), the
justifications for their existence must surely be even more special. However,
preparatory offences have too often been perceived as special exceptions that are not
subject to the more general rules and not subject to the same levels of scrutiny.
Indeed, it is almost as if their specialism somehow exempts them from any discussion
about whether they cast the net of criminality too widely. This is a phenomenon that
It is the exploration of these ‘special’ justifications that we turn to in the second part of this chapter.
The Law Commission was established by the Law Commissioners Act 1965, with the express
statutory purpose of promoting the reform of the law.
19
See, for example, Conspiracy and Attempts: A Consultation Paper (Law Com Consultation No. 183,
2007) The Law Commission, Part 2.
20
This is discussed in the second part of this chapter.
17
18
~ 26 ~
seems to touch the work of several academics,21 and can be perceived in the work of
the Law Commission. For example, in the recent review of attempts liability, the
Commission sets out a list of preparatory offences that criminalise the conduct of
persons before they have reached the stage of an attempt.22 They also observe that,
aside from hypothetical examples, the list of offences is so comprehensive that they
are not able to demonstrate any previous cases that fell short of an attempt that were
not caught by one of these preparatory offences. Yet despite the cumulative breadth of
these offences, despite their inconsistencies in terms of physical and mental elements,
the Commission simply presents them as a background to their sole focus of the
general offence of attempt. The problem with this is that when we reach a discussion
of the boundaries of the criminal law based upon the consultation questions, we are
not discussing the true boundary. Even if consultees had accepted the modest
extension proposed by the Commission to create a new offence of criminal
preparation,23 such an offence would still be preceded by a collection of preparatory
offences.
In the next part of this chapter, we explore the potential justifications for
inchoate non-consummate offences. We analyse not only the principles governing the
boundaries of attempts and conspiracies, but also those governing other inchoate
exceptions to the harm paradigm. In so doing it is important not to imply that
justifications have never or could never be made for the various preparatory offences.
The problem is not always simply a lack of justification, but that such offences are too
often viewed, and therefore appraised, within a vacuum rather than as part of a system
of preparatory offences which ought to form a coherent whole. Therefore we ask
whether the justifications which are offered for the general inchoate offences can be
generalised across other similar offences, and if not, why not?
A Search for Coherence
A search for coherence requires a search for legal principles underpinning and
shaping the expansion of the criminal law beyond the harm paradigm. As the physical
part (otherwise known as the conduct element or actus reus) of the inchoate offences
move further away from the anticipated harm, how are these offences constructed in
order to justify the continued use of criminal sanctions?
The obvious starting point for this inquiry is to focus on the governing
principles which the Law Commission recently identified as being relevant for the
purposes of justifying the imposition of criminal liability for the general inchoate
offences of attempt, conspiracy and assisting and encouraging. The Commission’s
recent review of these offences, which resulted in recommendations for a further
21
For example, most criminal law textbooks discuss the boundaries of the criminal law in relation to
general inchoate offences without more than a passing aside about other preparatory offences that will
criminalise certain conduct at a considerably earlier stage.
22
Conspiracy and Attempts: A Consultation Paper (Law Com Consultation No. 183, 2007) The Law
Commission, Appendix C.
23
Conspiracy and Attempts (Law Com No. 318, 2009) The Law Commission [8.1-8.82]. The
Commission have presented this not as an extension, but as a return to the original intentions of the
legislature.
~ 27 ~
broadening of the law,24 identified two separate (but interrelated) governing principles
which are important within this context.
The first principle is that, although the future harm may not yet have arisen,
the actus reus of the offence must still target conduct which (of its nature) gives rise to
a sufficient cause for concern: conduct that creates a risk or danger of the ultimate
harm occurring such that this justifies official intervention before it comes about.
Thus, for criminal attempts, in the Commission’s view, this required police to wait
until a person’s actions have gone beyond mere preparation towards the commission
of the principal offence; they must therefore have reached a stage in the criminal
pathway such that the risk of harm occurring effectively outweighs the potential that
they may desist voluntarily.25 For conspiracy and assisting and encouraging, the
Commission focused on the increased likelihood of the harm coming about where
people collude in their activities.26 Thus, although a person’s actions might be further
removed from the eventual harm than is the case with an attempt (not going beyond
mere preparation), the act of collusion itself manifests a comparable level of danger
that the harm may come about, such as to justify official intervention.
The second principle focuses on the blameworthiness (otherwise known as the
mental element or the mens rea) of the offender. Here, adopting the language of
Ashworth, the Commission states that:
... as the form of criminal liability moves further away from the infliction of harm, so the
grounds of liability should become more narrow. 27
Starting with the remoteness of the actus reus from the eventual harm, this second
principle (which the Commission calls the remoteness principle) goes considerably
further than the first in terms of satisfying the objectives of our current inquiry. This is
not simply because the remoteness principle dictates that inchoate offences should
require high threshold levels of mens rea. It is also because it purports to provide a
basis for extending liability in an objectively measurable coherent manner: as we
move further from the feared resulting harm, a higher degree of mens rea is required
in order to maintain a broadly consistent level of culpability, 28 a level required to
justify the imposition of criminal sanctions.
The normative and practical importance of this second principle (if applied
consistently) and the logic of its approach should not be underestimated. Seeking to
maintain a constant standard through the balancing of actus reus and mens rea
requirements, the remoteness principle purports to provide a basis for safeguarding
24
The broadening has focused particularly on the mens rea requirements of each offence. See, Inchoate
Liability for Assisting and Encouraging Crime (Law Com No 300, 2006) The Law Commission, and
Conspiracy and Attempts (Law Com No 318, 2009) The Law Commission. The former provided the
basis of the Serious Crime Act 2007, Part 2.
25
This does not represent a change from the position under the current law as stated in the Criminal
Attempts Act 1981, s1.
26
Conspiracy and Attempts: A Consultation Paper (Law Com Consultation 183, 2007) The Law
Commission [2.11-2.19].
27
Principles of Criminal Law (5th ed, 2006) Ashworth, Oxford University Press, 423. Endorsed by the
Commission in Conspiracy and Attempts: A Consultation Paper (Law Com Consultation 183, 2007)
The Law Commission [1.6-1.7] and Inchoate Liability for Assisting and Encouraging Crime (Law Com
No 300, 2006) The Law Commission [5.86].
28
We are assuming that other variables, for example the maximum penalty for the principal offence
and the wrong constituted by the actus reus of that offence, remain constant. For a wider discussion of
the role played by these variables, see ‘Crimes of ulterior intent’ (1996) Horder in Harm and
Culpability, Simester and Smith (eds), Clarendon Press, 153.
~ 28 ~
against the creation of inchoate offences that criminalise insufficiently culpable
behaviour.29 Indeed, there is a relationship between the mental element and the
risk/dangerousness associated with the conduct element where the former has an
impact on the latter. Engaging in particular conduct with the intention that that
conduct will contribute towards the commission of a criminal offence clearly presents
a greater prospect that the resulting harm (the criminal offence) will occur than might
be the case if the person engaging in the conduct has some version of mens rea below
‘intention’.
The remoteness principle ought also to operate as a basis for ensuring that
offences targeting the different stages of a person’s behaviour leading up to an
eventual harm do not undermine one another. Thus, for a criminal attempt it is always
necessary for a person to intend to bring about the principal offence,30 even if the
definition of the principal offence itself does not require intention. Therefore, where it
is clear that the defendant has satisfied the actus reus of the principal offence (brought
about the harm), it will always be more appropriate for a prosecutor to charge them
with that principal offence rather than with criminal attempt. Were the mens rea of the
attempt or conspiracy or other inchoate offence to be less restrictive than that of the
principal offence, prosecutors would have an incentive to charge the inchoate offence
even where the harm had been brought about. This would cause problems both in
terms of sentencing and fair labelling, since the charge would not reflect the full
extent of the defendant’s crime, and would have the potential to make the substantive
offences redundant.31
In this manner, an apparently straightforward principle linking the remoteness
of a person’s conduct to the level of mens rea required for inchoate liability has the
potential to provide the consistency and coherence that we are searching for. Just as
we can identify the natural limits of the spectrum of mens rea (intention), so we may
also identify the limits of the actus reus: the most remote behaviour that a person can
be justifiably criminalised for on the basis of his or her intention to cause a future
harm. Furthermore, in practice it can serve to discourage prosecutors from
undercutting substantive offences, and contribute to the normative concerns
associated with fair labelling.
However, as the physical remoteness of the general inchoate offences have
already required a mens rea of ‘intention’,32 it is arguable that it is difficult to see how
29
For example, if a shopkeeper sells a product intending the buyer to use that product for an illegal
purpose then it is right to prosecute him for assisting the future offence. However, if the shopkeeper
sells the product merely foreseeing the possibility that it might be used for such a purpose, the
imposition of criminal sanctions are likely to appear unwarranted. For further discussion, see Inchoate
Liability for Assisting and Encouraging Crime (Law Com No 300, 2006) The Law Commission [5.87].
30
The Criminal Attempts Act 1981, s1. Although recklessness may in some instances be sufficient in
relation to the circumstance element (see, R v Khan [1990] 1 W.L.R. 813), this will only arise where
the circumstance element of the principal offence requires a mens rea of recklessness or less. Further,
intention is still required for the act and result elements. In this manner, the essence of the offence is
still the requirement of intention.
31
The Commission also recognises this danger in their discussion of conspiracy, stating unequivocally
that the creation of a disincentive to charge a substantive offence in favour of an inchoate alternative
would ‘not be right’. Conspiracy and Attempts: A Consultation Paper (Law Com Consultation 183,
2007) The Law Commission [4.55-4.56].
32
The exception being the reformed offences of assisting and encouraging (Serious Crime Act 2007,
Part 2) that require varying levels of mens rea including belief as to the principal offender’s future
conduct and recklessness as to the future consequences and surrounding circumstances of that conduct.
However, it is important to note that where the mens rea of the principal offence requires a higher
~ 29 ~
preparatory offences can be structured to target conduct that is further removed from
the eventual harm: if ‘intention’ is the highest level of fault then it is arguable that the
general inchoate offences should also mark the physical boundaries of the criminal
law. However, as we have already explained above, the statute book contains a
multitude of preparatory offences that target conduct that is more remote from harm
than that targeted by the general inchoate offences.
The first category of preparatory offences targets conduct (more remote from
harm than the general inchoate offences) only when the person intends that the
eventual harm should come about. The most widely applicable example of this form
of liability can be identified through double or infinite inchoate liability. This form of
liability criminalises a person (D) for conduct which is a further step removed from
the principal offence, for example, where D conspires with Y to encourage Z to
commit an offence.33 For liability to arise D must intend that Y should encourage Z,
and must also intend that Z commit the principal offence. The problem here is that,
although D’s conduct is a further step removed from the eventual harm than is the
case with conspiracy to commit the principal offence, the mens rea of intention is not
fundamentally different from that required if D was conspiring with Y to commit the
offence directly. As a result, double inchoate liability appears to be inconsistent with
the remoteness principle, leading to potential problems relating to inappropriate
extensions of the law and the undermining of more proximate offences.
Of course it is possible to construct a justification for double inchoate liability.
In the above example, it is not sufficient that D intended Z to commit the principal
offence; D must also intend Y to encourage Z to do so. Therefore, although the level
of fault (intention) has not changed from a standard conspiracy, there are further
aspects of the offence that must be intended. However, even if one were to accept this
justification of double inchoate liability,34 several other preparatory offences of
similar physical remoteness do not include this added double intention requirement.
For example, section 25(1) of the Theft Act 1968 criminalises persons for possession
of any article with the intention to use that article to commit theft or burglary. With
this offence, as with others of a similar construction, the conduct element is
considerably further removed than a criminal attempt for example, and yet an
intention to commit the future offence is deemed as a sufficient mens rea.
The problems which this approach throws up can be demonstrated by the
simple example of someone (D) intentionally shooting a victim (V). In this example,
when D first acquires the firearm, they may well become liable for a possession
offence (possession of a firearm with intent by means thereof to endanger life);35 as D
goes beyond mere preparation towards the shooting of V, there will be liability for
attempted murder;36 and when the harm (V’s death) is brought about, D will be liable
degree of fault, D’s mens rea will reflect that higher standard. Therefore, for the most serious offences
(used as examples in much of this chapter) D will still require intention.
33
The breadth of conduct coming within this form of liability has been considerably expanded by the
Serious Crime Act 2007, Part 2. Notably, for example, it is now an offence for D to assist or encourage
P to form a conspiracy with another party to commit a principal offence.
34
Although we recognise the desirability of certain forms of double inchoate liability, we are not
inclined to accept this line of defence. This is because, as D moves further steps from the eventual
harm, the causal role played by his or her conduct will be significantly reduced. We do not accept that
an intention that another party should play their intermediate part is sufficient replacement.
35
The Firearms Act 1968, s16(1).
36
Contrary to the Criminal Attempts Act 1981, s1. We are assuming that D does not have a valid
defence.
~ 30 ~
for murder.37 One can identify a raising of the mens rea requirement between the
substantive offence and the attempt38 (in line with the principle explained above)
since liability for murder will arise if D intends to kill or intends to cause grievous
bodily harm, whereas liability for attempted murder will only arise if D intends to
cause death. However, there appears to be little difference in mens rea terms to mark
the difference between attempt and the possession offence. Whilst it is not our
suggestion that this behaviour with the appropriate intent ought not necessarily to be a
criminal offence, it is not consistent with the remoteness principle which it is claimed
ought to provide a consistent basis for deciding where to draw the line between
conduct which may or may not justifiably be criminalised. Furthermore the possession
offence provides the distinct possibility of undermining more proximate offences (in
this case the criminal attempt).39
Despite the problems just explained with this category of inchoate offences,
we can identify other categories of offence which present an even more serious
challenge to the coherence of the law in this area. This is because, although the
majority of preparatory offences, like those just mentioned, require persons to intend
to bring about a future harm, there are other offences which in addition to targeting
similarly remote conduct, require a mens rea less than full intention. For example,
section 15(2) of the Terrorism Act 2000 provides that a person commits an offence if
they receive money and they either intend using that money for terrorist purposes, or
have ‘reasonable cause to suspect that it may be used’ for such purposes. Although
receiving money is considerably earlier in the criminal pathway than an attempt to
provide financial support for terrorist purposes, the ‘reasonable cause to suspect’
requirement involves a standard of mens rea which is lower than intention. Therefore
this offence departs considerably from the remoteness principle in relation to both
actus reus and mens rea requirements, rendering it almost impossible to reconcile
within our search for coherence. As such, offences within this category pose a
considerable risk of inappropriate criminalisation as well as undermining other more
proximate offences.
Of course, it is certainly the case that when offences within this category are
examined individually, out of context with other inchoate offences, it may be possible
to justify their existence. This is because, although they are inconsistent with
principles identified generally to guide the expansion of inchoate liability, we
certainly would not deny that the future harms that they are designed to prevent
(focusing overwhelmingly in recent times upon terrorism and sexual offences)
represent some of the most potentially serious within the criminal law. Indeed, there
are several interrelated reasons that could be invoked to defend the creation of such
offences that focus on the seriousness of the future harm and the difficulty of securing
convictions if a higher standard of mens rea were to be required. However, the
problem with this kind of focused justification for the offence is that it begs a simple
question. If such reasons are sufficiently powerful to set aside the remoteness
principle, and if it is these reasons that are guiding the outer boundaries of criminal
liability, then why are they applied in such an inconsistent manner?
37
Again, we are assuming that D does not have a valid defence.
For attempted murder, D must intend to cause death. An intention to cause GBH, sufficient for a
substantive murder charge, will not be enough.
39
In the case of certain preparatory offences, it may be contended that a significantly lower maximum
sentence will mitigate the chance of more proximate offences being undermined. However, this is not
always the case. Each of the offences in this example, including the possession offence, carries a
maximum penalty of life imprisonment.
38
~ 31 ~
In order to demonstrate the inconsistency of the current law, and the
absurdities that it can lead to, we may take the example of section 58(1) of the Sexual
Offences Act 2003, which is useful because it is capable of coming within either of
the two categories of preparatory offence just discussed. Section 58 of the Act
provides:
58(1) A person [D] commits an offence if he intentionally arranges or facilitates travel within
the United Kingdom by another person (B) and either—
(a) he intends to do anything to or in respect of B, during or after the journey and in any part of
the world, which if done will involve the commission of a relevant offence, [e.g. rape and sexual
offences including child sex offences] or
(b) he believes that another person is likely to do something to or in respect of B, during or after the
journey and in any part of the world, which if done will involve the commission of a relevant
offence
Section 58(1)(a) provides an example of the first category of offences, criminalising a
person (D) at a very remote stage, based on his or her intention to commit a future
sexual offence. Section 58(1)(b), on the other hand, comes into the second category.
This is because, for D to be liable under this provision, although the actus reus
requirement remains very remote from the eventual harm, D’s mens rea (in relation to
the potential future offence to be committed by someone else) is set at a level akin to a
form of recklessness: belief in a likelihood.
Focusing first on section 58(1)(b) and the second category currently under
discussion, once again one may be able to justify the manner in which the offence has
been constructed. Clearly, the remoteness of D’s actus reus and the lower levels of
mens rea demonstrate an abandonment of the remoteness principle, which it will be
recalled is that ‘as the form of criminal liability moves further away from the
infliction of harm, so the grounds of liability should become more narrow’. However,
if D is willing to arrange travel for another, knowing that that person is likely to
become a victim of a serious sexual assault at some stage during that journey or
shortly afterwards, they certainly demonstrate a high level of culpability. The use of
criminal sanction seems justified. But if this is indeed an adequate justification, why is
it not extended to other future harms not catered for within this section? Murder is one
of the most serious offences in English law. However, if D arranges travel for, and
even travels with another person believing that it is likely that that person will be
killed by someone else, D will not have committed an offence: in order to be liable for
assisting the murder of B, D must (at least) believe that the conduct of that other
person leading to B’s death will take place.40
Turning to section 58(1)(a) which is an example of the first category of
preparatory offence, here too a similar level of inconsistency is apparent. Section
58(1)(a) criminalises the same remote conduct of D (arranging or facilitating the
movement of B), but this time on the basis that D intends to personally commit a
relevant sexual offence at some point during or shortly after that journey. Again, one
might make the case that such an offence is justified: if D intends to commit a
relevant offence and has already started on the road towards its commission by
arranging travel, why wait until he or she has actually gone beyond mere preparation
towards the commission of that offence before intervening with the criminal law.
However, again using the offence of murder as our point of comparison, such a
40
The Serious Crime Act 2007, Part 2.
~ 32 ~
justification must surely fail. If D arranges for the travel of B with the intention to kill
B at some point during or shortly after that journey, there can be no criminal liability
until a very late stage: since liability for attempted murder will not arise until D has
gone beyond mere preparation towards the killing of B.
Given that the remoteness principle is identified as the basis for regulating or
controlling the acceptable limits of the criminal law the discussion above indicates a
basic inconsistency in its application, and a consequent incoherence in the approach to
non-consummate offences. Of course, we are aware that the consistency argument
may lead to a different conclusion. It might be argued that if the problem is merely
with the consistency of application of the remoteness principle then this could be
resolved by allowing all serious offences (including murder) to be covered by both
categories of preparatory offence. In other words intention would not be required.
The problem with such a suggestion, however, is that it would create a very strange
relationship between the preparatory offences and the substantive offence itself. One
could only be convicted of murder if one intended to kill or cause grievous bodily
harm. Whereas one could be convicted of attempted murder, say, on the basis that one
is reckless as to whether conduct [which does not actually result in death] might
actually do so.
The practical confines of this chapter do not allow us to enter this secondary
debate with any degree of detail. However, the recognition that this is a debate that
should be waged, and the recognition that it is preparatory offences, as distinct from
the general inchoate offences, which mark the true boundary of the criminal law, at
least provides us with a more appropriate starting point for engaging in a coherent
discussion of the issues. Issues associated with deciding the most appropriate
approach conceptually to criminalising non-consummate harms, as well as allowing
for a principled approach to examining how such offences individually should be
defined. It is our contention that it is only when preparatory offences of this kind are
recognised, not as the exception, but as fundamental parts of our criminal law, that
they will be given the same level of scrutiny that is currently focused upon the general
inchoate offences of attempt, conspiracy and assisting and encouraging. As we noted
in relation to these general offences, reform is not simply focused upon whether we
would like to be able to intervene using the criminal law, but rather it is based upon
the balancing of a range of factors including the importance of individual autonomy
and the confining of the criminal law to the most culpable offenders (as protected by
the remoteness principle).
Conclusion
As we move ever more into an age of intelligence led policing, the increasing role of
inchoate liability may be viewed as a measure of success: the criminal law is
intervening to protect the community from the risk of harm by facilitating official
action before the harm is brought about. However, criminalisation requires principled
justification, and theory and practice need to accord with one another. The current
approach which regards the proliferation of preparatory offences, not as further
extensions of the criminal law that must be subjected to the same scrutiny as the
general inchoate offences, but as exceptions that can be tolerated without further
examination, is not acceptable for a number of reasons. First it disengages these other
inchoate offences from the remoteness principle which is the principled basis offered
both as a justification for inchoate liability as well as the organising principle for
~ 33 ~
defining such offences. Secondly, it serves to present an inaccurate account of where
the true boundary for criminalisation lies: the true boundary is not the general
inchoate offences; rather it is the forms of preparatory offence which we have
examined above, which target conduct prior to that which is caught by the general
inchoate offences, and in doing so may apply lower standards of mens rea than is the
case with the general inchoate offences. In addition to the practical problem which
this presents in terms of undercutting general inchoate offences, this means that we
have no coherent theory which justifies the exception in the light of the apparent rule.
In arriving at this conclusion we are aware that we have not provided solutions
to the problems of theoretical and practical dissonance which we have identified. This
is a task which requires considerably more in terms of space and scope than the
current practical constraints of this chapter allow. We have instead here contented
ourselves with the more limited, but important, preliminary task of asking the
question whether the first principles as conventionally offered make sense in the light
of current practice. For the reasons set out above, we conclude they do not, which in
turn makes it all the more incumbent on those with an interest in this field to begin to
engage in a deeper and grander exploration of the conceptual basis for criminalisation,
as well as a more extensive examination and systematic identification of different
types of preparatory offences than has been possible within the scope of this chapter.
~ 34 ~