Inchoate Offenses PDF

CHAPTER IX INCHOATE OFFENCES: ATTEMPT AND PREPAR ATION Johannes Keiler and David Roef 1. INTRODUCTION Traditionally, criminal liability is based upon a complete offence, i.e. the perpetrator has committed the actus reus with the necessar...

CHAPTER IX INCHOATE OFFENCES: ATTEMPT AND PREPAR ATION Johannes Keiler and David Roef 1. INTRODUCTION Traditionally, criminal liability is based upon a complete offence, i.e. the perpetrator has committed the actus reus with the necessary mens rea. At the core of criminal law, then, there lies a kind of harm (death, injury, destruction of property). Criminal law is therefore primarily backward looking and retributive by punishing wrongdoing that was already committed. Yet over time the focus of criminal law has widened and the common consensus nowadays is that criminal law is not only appropriate to respond to harm done, but also to reduce the risk of harm.1 For this reason all legal systems accept inchoate offences, whose purpose is rather preventive than retributive. The term inchoate generally means ‘just begun, undeveloped, incipient’. Accordingly a central feature of these offences is that they are committed even though the substantive offence envisaged by the perpetrator was not completed and no actual harm emerged.2 In this chapter we will discuss two main forms of inchoate liability: the (more traditional) doctrine of attempt and the (relatively new category of) preparatory offences. Before we discuss the different questions raised by attempt and preparatory offences, we will first focus on a tension between different patterns of criminality which pervades a wide field of the criminal law but exerts significant influence on the scope and guise of inchoate offences. This tension arises between what Fletcher has termed the pattern of manifest criminality in contrast to the pattern of subjective criminality.3 1 D. Husak, ‘Overcriminalization’ (Oxford University 2008), p. 159. 2 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), p. 454. 3 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), pp. 115–234. Intersentia 253  Johannes Keiler and David Roef 2. TWO PATTER NS OF CRIMINALITY: TWO WAYS OF LOOKING AT INCHOATE OFFENCES In essence the dispute between the two patterns centres on the question: what is punishment imposed for? In the pattern of manifest criminality the main emphasis lies on the criminal conduct that occurred. The notion of intent only takes a subsidiary position in the analysis of criminal liability.4 This corresponds to the requirements of act-based criminal law, which dictates that mere thoughts should not be punishable, as they occur in the private sphere of the citizens. The pattern of manifest criminality thus begins with liberty and insists that citizens in a liberal state ought not to be punished unless they commit a wrongdoing which constitutes an unreasonable risk of harm to others. Criminal liability, so the argument goes, ought to require an act that is objectively criminal. The focus thus rests on the harm or evil of the respective criminal offence. Applied to the notion of inchoate offences, this pattern would impose criminal liability only when the actor comes close to bringing about a tangible harm or evil.5 The emphasis rests therefore on the wrongful conduct rather than on (the intentions of) the criminal actor. In contrast, the pattern of subjective criminality departs from the assumption that the core of criminal conduct is the actor’s intention to harm a legally protected interest (i.e. culpability).6 Criminal law ought to protect specific legal interests, and people who intend to harm such interests are dangerous and therefore deserve punishment. The main reason that criminal law generally also requires some form of conduct for liability, so the proponents of this pattern state, is to assure the firmness of the actor’s evil intention. Thus, in the pattern of subjective criminality, conduct only fulfils an evidentiary function, while in the pattern of manifest criminality it constitutes a substantive requirement.7 This distinction becomes especially important in the realm of inchoate offences where the outward conduct often appears objectively innocuous. If the manifest criminality of the conduct is a substantive requirement of the pattern of criminal law, then no proof of intent can function as a substitute and make up for the missing manifest criminality. If conduct however only plays an evidentiary role, then the lack of a manifestly wrongful conduct may be remedied by the proof of a substitute criminal intent.8 As the focus in this pattern primarily rests on 4 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 117. 5 P.H. Robinson and J.M. Darley, ‘Objectivist versus Subjectivist Views of Criminality: A Study in the Role of Social Science in Criminal Law Theory’ Oxford Journal of Legal Studies (1998), p. 414. 6 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), pp. 118–119. 7 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 119; D. Roef and T. Prakken, ‘Strafbare Voorbereiding in Nederland: Juridische Overkill’, in Verbruggen, et al. (eds.), Voorbereidingshandelingen in het Strafrecht (van der Wolf 2004), pp. 231–244. 8 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 119. 254 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation the person rather than his (potentially) harmful conduct, it results in a broader scope of criminal liability. It is the actor’s subjective culpability that is decisive. The two patterns of criminality are often entwined in contemporary thinking about criminal law. It would therefore be a fallacy to view those patterns as a strict dichotomy.9 However, it is important to understand that in our modern society we no longer exclusively conceive of crime as harm or wrong that has to be remedied retrospectively by the imposition of punishment. Since the 1990s we have shifted from a traditional welfare state into a culture of control where the pursuit of security increasingly influences the application of criminal law and where crime is essentially seen as a form of risk. Accordingly, the focus of criminal justice systems has shifted towards the reduction of criminal opportunities in everyday life.10 Polemically speaking, as criminal law is more and more invoked in tackling conduct far removed from concrete harm or danger, it seems as if the dystopia of Steven Spielberg’s Minority Report has become the utopia of modern society. A paradigmatic expression of this shift in focus is the increasing criminalisation of preparatory conduct.11 3. PR EPAR ATION 3.1. ATTEMPT VERSUS PR EPAR ATION Traditionally, almost all legal systems defined the threshold for criminal liability along the lines of the distinction between an attempt and mere preparation. Crudely stated, once a person had reached the attempt stage criminal liability would arise, while mere preparatory conduct would fall outside the scope of criminal law. Thus, to use an oversimplification, if vengeful John shoots at his enemy Bob but misses, he has come close enough to the violation of the protected legal interest to warrant the imposition of punishment; however, when John purchases the rifle his conduct is too far removed from the actual offence to warrant criminal censure. Criminal law therefore made a division between conduct that was quite close to the proscribed harm and constituted a clear danger while excluding conduct temporarily further removed. As already mentioned, this restrictive approach is increasingly discarded in the contemporary ‘culture of control’ for the sake of a policy of crime prevention. We will now discuss how this policy is reflected in different kinds of offences. 9 P.H. Robinson and J.M. Darley, ‘Objectivist versus Subjectivist Views of Criminality: A Study in the Role of Social Science in Criminal Law Theory’ Oxford Journal of Legal Studies (1998), pp. 415–416. 10 D. Garland, ‘The Culture of Control – Crime and Social Order in Contemporary Society’ (Oxford University Press 2006), pp. 103–139. 11 J. McCulloch and S. Pickering, ‘Pre-Crime and Counter-Terrorism’ British Journal of Criminology (2009), p. 633. Intersentia 255  Johannes Keiler and David Roef 3.2. OFFENCES CR IMINALISING SPECIFIC PR EPAR ATORY CONDUCT First, we can see that all penal systems have over time created a multitude of specific offences that criminalise different kinds of preparatory conduct. §149 GCC for instance prohibits the preparation of counterfeiting money, official stamps, etc. Thus, obtaining counterfeit machinery is explicitly criminalised in Germany.12 The Dutch penal system also has similar offences, which are enshrined in Articles 214 and 234 DCC, and section 17(1) of the English 1981 Forgery and Counterfeiting Act prohibits the possession of instruments with the intent to use for forgery. 3.3. CONSPIR ACY A universally valid example can also be found in the notion of conspiracy which criminalises preparatory conduct by proscribing the formation of an agreement to commit a serious crime. The notion traditionally plays an important role in covering preparatory conduct in the English legal system, where it is generally interpreted broadly.13 Conspiracy in England exists as a statutory as well as a common law offence. The former is enshrined in section 1(1) of the Criminal Law Act 1977 and essentially criminalises agreements between two or more people to commit a crime: ‘Subject to the following provisions of this part of this Act, 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.’ What is required is that the parties involved agree on a course of conduct which if carried out necessarily amounts to or involves the commission of a criminal offence. The parties must intend that the agreement will be carried out and the crime committed by one or more of the conspirators.14 If the parties later decide not to go through with the plan, since the actus reus is to reach an agreement they can still be charged. Probably the broadest and most controversial form 12 See also: §§80, 83, 149, 202 (c), 234 (a), 275, 263 (a) GCC for offences criminalising preparatory conduct. 13 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 484–526. 14 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University 2013), pp. 474–476. 256 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation of conspiracy is the conspiracy to defraud, which is committed as soon as an agreement to deprive another dishonestly of something can be proven. Conversely, in Germany and the Netherlands the scope of conspiracy was traditionally interpreted more narrowly, but has been rediscovered in the specific domain of the war against terrorism.15 The large volume of anti-terrorism legislation that mushroomed in all Western countries after the 9/11 attacks contains a multitude of provisions that typically seek to criminalise preparatory conduct.16 3.4. THE SER IOUS CR IME ACT 2007 Reference should also be made here to the English Serious Crime Act 2007. This Act inter alia abolished the former common law and inchoate offence of incitement and substituted it with three inchoate offences which also significantly broadened the scope of participation rules. The impetus for the Act was a conceived gap and inconsistency in the law, namely that whereas criminal liability existed at an inchoate level for incitement (i.e. attempted instigation) liability could not arise in cases where assistance was offered but where the assisted offence was subsequently not committed. For example, if Max had told John to go and murder his treacherous wife, Max would have been liable for incitement regardless of whether John went on to commit the murder or not; whereas if Max handed John a gun he could not be prosecuted unless the murder was subsequently committed.17 The Act is intended to step into this lacuna, but at the same time brings about a significant expansion of criminal liability. In summary, the Serious Crime Act 2007 introduces criminal liability where: (a) a person does an act that is capable of encouraging or assisting the commission of an offence, intending to encourage its commission (section 44); (b) a person does an act capable of encouraging or assisting the commission of an offence, believing that the offence will be committed and believing that his act will encourage or assist its commission (section 45); 15 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 415–416; C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), pp. 303–319. 16 See for instance: §89a DCC, penalising the preparation of serious violent offences endangering the state, §89b and §9 DCC. See further: Sections 5, 6 of the 2006 Terrorism Act, criminalising the preparation of terrorist acts and terrorist training, the 2001 Anti-Terrorism, Crime and Security Act and the 2005 Prevention of Terrorism Act as well as the 2004 Dutch law on terrorist offences. 17 J.R. Spencer and G. Virgo, ‘Encouraging and assisting crime: Legislate in haste, repent at leisure’ Archbold News (2008), pp. 7–9. Intersentia 257  Johannes Keiler and David Roef (c) a person does an act capable of encouraging or assisting the commission of one or more of a number of offences, believing (i) that one or more of those offences will be committed (without having any belief as to which particular crime); and (ii) that his act will encourage or assist the commission of one or more of them (section 46). Thus, by expanding criminal liability for participation in crime in several ways, a broad scheme of inchoate liability is introduced. This means that a person will be liable as soon as he has performed any act capable of assisting or encouraging the commission of an offence irrespective of whether it had any effect on the commission of the offence or whether the offence has been committed. Thus, where Alvin supplies a gun to Barney, believing that it will be used in a murder, liability will arise at the instant the gun is supplied, even if Barney never commits the offence. According to sections 45 and 46 it is sufficient if the defendant believes that the anticipated offence will be committed.18 3.5. PR EPAR ATION AS A GENER AL DOCTR INE: THE DUTCH EX AMPLE The concern for individual liberties and the general conviction that a mere culpability-centred criminal law should be avoided, prevented in most penal systems the creation of a general doctrine of preparation as a basis for criminal liability. As the weight of these arguments however diminished in contemporary society, some systems, notably in the Netherlands, have recently taken the step to introduce preparation as a general doctrine. 3.5.1. The history and rationale of Article 46 DCC In 1991 the Dutch government introduced a proposal regarding the criminalisation of preparatory acts in Parliament. After a long and heated discussion the bill entered into force in 1994.19 In its short history, the provision has already undergone several changes. Initially, preparation was for instance only punishable in regard to joint preparatory efforts of two or more perpetrators, 18 D. Ormerod and R. Fortson, ‘Serious Crime Act 2007: The Part 2 Offences’ Criminal Law Review (2009), pp. 400–402; D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 529–530. 19 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 404–405; C.M. Pelser, ‘Preparations to commit a crime – The Dutch approach to inchoate offences’ Utrecht Law Review (2008), p. 63. 258 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation as those were thought to constitute a bigger general threat to society.20 Here we see still a focus on a more harm-centred conception of criminalising preparatory acts. However, in 2002 the legislator removed the requirement of joint preparation and thereby expanded the scope of liability to crimes prepared by individual perpetrators.21 A further expansion of liability occurred in 2007 when the legislator removed the requirement that the preparatory means applied must be ‘manifestly intended’ for the commission of an offence. This removed an objective requirement from the provision and reinforced the focus on the suspect’s subjective intentions reflecting therefore more a pattern of subjective criminality. After several amendments of the law, which gradually removed some objective safeguards, Article 46 DCC now reads as follows: ‘(1) Preparation to commit a serious offence which, by statutory definition, carries a term of imprisonment of not less than eight years, is punishable, where the perpetrator intentionally imports, transits, exports or has at its disposal, objects, substances, information carriers, concealed spaces or means of transport intended for the commission of the serious offence. (2) In case of preparation, the maximum principal penalty prescribed for the serious offence is reduced by one half. (3) In case of serious offences carrying a sentence of life imprisonment, a term of imprisonment of not more than fifteen years shall be imposed (4) The additional penalties for preparation are as for completed offences. (5) The term “objects” refers to all material and immaterial goods.’ One clear limitation of the scope of the offence can be found in the requirement that the preparatory acts must concern a crime that carries a term of imprisonment of not less than eight years. This limits the offence to the preparation of serious offences like arson, rape, deprivation of liberty, murder and manslaughter, extortion, etc. Let us now have a closer look at the constituent elements of this inchoate offence 3.5.2. The actus reus of preparatory acts In regard to criminal preparation it is also required that the intention to commit the offence has manifested itself in the preparatory acts. The law outlines (i) several preparatory means and acts which were (ii) intended to circumscribe the scope of the offence. Thus, the offence contains two objective criteria. First, the perpetrator must (i) obtain, import, transit, export or have at his disposal (ii) objects, substances, information carriers, concealed spaces or means 20 G.A.M. Strijards, ‘Strafbare voorbereidingshandelingen’ (W.E.J. Tjeenk Willink Zwolle 1995), pp. 42 et seq. 21 D.H. de Jong and G. Knigge, ‘Het materiële strafrecht’ (Kluwer 2003), p. 208. Intersentia 259  Johannes Keiler and David Roef of transport. These terms are interpreted broadly. Thus, a multitude of every day objects can fall under preparatory means. A stone, a rope, a pin, or a kitchen knife could all constitute preparatory means, provided the required intention can be proven.22 The Supreme Court has for instance considered fertilizer, electric circuits and chemicals as substances.23 The second objective element can be found in the requirement that the preparatory means must be intended for the commission of a serious offence. How can it for instance be established that a mobile phone, a car or a rope is intended for the commission of an offence. Before 2007 the law required that the means were ‘manifestly intended’ for the commission of the offence, but in 2007 the word manifestly was removed. This of course raises the question of whether this change introduced a far-reaching shift towards culpability-centred criminal liability.24 Although the legislator seemingly aimed at introducing a subjective approach with Article 46, jurisprudence seems to have adopted in most cases a moderate objectivist approach. Intentions alone are still considered insufficient to ground criminal liability in these cases. The offender’s intentions must have objectively manifested themselves in an overt act. An important decision with regard to criminal preparatory acts is the so-called Samir A. decision. Although the judgment concerned the old version of Article 46 where ‘manifestly’ was still an objective element of the offence, the Supreme Court ruled that in determining the criminal purpose of preparatory means by their outward manifestation one cannot abstract from the criminal goal which the defendant aims to reach by using these means. With this judgment the Supreme Court anticipated and also paved the way for the subsequent removal of the word ‘manifestly’ from the offence definition. It is interesting to give some attention to the facts in this famous case. In the course of an investigation concerning the robbery of a supermarket, a house search was carried out in the flat of a 17-year-old Dutch teenager, Samir A. who was suspected of being an accessory to the robbery. During the search the police found a cartridge clip, a silencer, an imitation firearm, a bulletproof vest, night-vision goggles, several handmade floor plans of public buildings like the Lower House of Parliament, a nuclear power plant and the Amsterdam airport, including notes on security measures and potential escape routes, as well as chemical and electronic equipment which was intended to manufacture a bomb. 22 G.A.M. Strijards, ‘Strafbare voorbereidingshandelingen’ (W.E.J. Tjeenk Willink Zwolle 1995), p. 125. 23 HR 20 February 2007, ECLI:NL:PHR:2007:AZ0213. 24 K. Rozemond, ‘De Subjectivering van het Nederlands Strafrecht’ Nederlands Juristenblad (2007), pp. 2301–2305. 260 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation As the 2004 Terrorist Offences Act was not yet in force, Samir A. was charged with the criminal preparation of murder, arson and causing an explosion.25 One characterising feature of this case was the amateurish nature of the preparatory acts, as well as the very early stage in which the criminal endeavour was discovered. Experts had concluded that the objects discovered (a plastic bottle with electric fibre made from Christmas tree lights and filled with chemicals) were not at all suited for causing an explosion, inter alia because the fertilizer used to construct the device lacked the necessary ammonium nitrate. In addition, the blueprints and plans discovered showed the amateurish nature of the enterprise, as most information was simply gathered from the Internet. The Court of First Instance had acquitted the defendant of preparing a terrorist attack but still convicted him of the illegal possession of arms and ammunition. The Court argued that the defendant lacked the necessary mens rea and that the primitive nature of the seized objects made it factually impossible for the crime to be committed.26 The Court of Appeal subsequently upheld the acquittal but applied a different reasoning. It held that despite the defendant’s (terrorist) intention it was not only a question whether the means could contribute to the commission of the offence in the abstract, but also whether manufacturing materials or having materials at his disposal amounts to a concrete or actual danger. The Court ruled that the amateurish and primitive means did not amount to an actual threat, nor could they do so in the near future.27 The Supreme Court however quashed the acquittal, and by referring to the legislative history of the provision held that what is important is whether the objects seized, separately or together, by their outward manifestation can be suitable for the criminal purpose the defendant has in using them. Dutch Supreme Court, 20 February 2007, ECLI:NL:HR:2007:AZ0213 ‘3.5. Art. 46, first paragraph, (old) CC reads as follows: “Preparation to commit a serious offence which, by statutory definition, carries a term of imprisonment of not less than eight years, is punishable, where the perpetrator intentionally imports, transits, exports or has at its disposal, objects, substances, information carriers, concealed spaces or means of transport manifestly intended for the commission of the serious offence.” 3.6. In the legislative history related to this provision [the Minister of Justice says the following]: “Under ‘objects’ has to be understood independent items that are, whether considered separate or together, manifestly useful for a criminal purpose. It is not 25 C.M. Pelser, ‘Preparations to commit a crime – The Dutch approach to inchoate offences’ Utrecht Law Review (2008), p. 66. 26 Rb. Rotterdam 6 April 2005, ECLI:NL:RBROT:2005:AT3315. 27 Hof Den Haag 20 November 2005, ECLI:NL:GHSGR:2005:AU6181. Intersentia 261  Johannes Keiler and David Roef necessary that they already have a recognizable instrumental character from the moment the state intervenes.” (Parliamentary Papers II 1990–1991, 22 268, no. 3, p. 16) “The means employed must be clearly intended for a criminal purpose. The criminal intent must, in the circumstances in which the means were used and found, catch the eye of the average person. For preparatory acts the unlawful character of the prohibited conduct is of course derived from the perceived final purpose and not, as in the completed offence, from the result. This means that causality, which plays such an important role in the attempt and the completed offence, is quite irrelevant here and that its function is substituted by the finality of the act.” (Parliamentary Papers II 1990–1991, 22 268, no. 3, p. 18) “To establish criminal liability, Dutch criminal law hardly ever requires the investigation of motives, emotions and final objectives of perpetrators. However, this is different for the inchoate offence, because what is lacking in objective elements for the legal grounding of a criminal response, is more or less compensated by the subjective elements, to which is given therefore more weight. The offence elements are operating here, so to speak, as ‘communicating vessels’.” (Parliamentary Papers II 1991–1992, 22 268, no. 5, p. 19) “For the criminalization of a preparatory act it definitely plays a role that persons have noticed from the offender’s behaviour that he is very well capable to commit a serious crime and that he has even made some preparations. […] The fact that nothing will be done against someone who has shown such a disposition, is difficult to understand and increases feelings of insecurity. I would certainly not consider it right that the sole criterion for criminalization should be: concrete harm of a specific person or disadvantage of the public interest.” (Parliamentary Papers II 1991–1992, 22 268, no. 5, p. 24) “Amongst others, that’s why I have given in the preceding discussion more attention to the doctrine of ‘criminal attempt’ of Article 45 of the Criminal Code. While the phrase ‘beginning of completion’ should be reconstructed independently of the underlying intent of the perpetrator – that’s what the objectivist jurisprudence boils down to – this will not be the case for the ‘preparatory act’. Here the act has to be considered as a symptom of the underlying criminal orientation of the will. The act must betoken the firmness of the intention to commit a criminal offence”. (Parliamentary Papers II 1992–1993, 22 268, no. 7, p. 14) 3.7. In answering the question whether the objects, substances, information carriers, concealed spaces or means of transport (hereinafter referred to collectively as “objects”), listed in Article 46 CC, are separately or together, by their outward appearance “manifestly intended” to commit the offence within the meaning of that provision, can, following from the above legal history, not be abstracted from the criminal purpose the suspect has in mind in using them. The Court, having considered that there is no doubt regarding the terrorist intent of the accused, has held that the objects, substances and information carriers listed in the indictment and which the defendant had made or had available, are not manifestly intended to prepare an attack such as he is charged with, because these objects can not reasonably have that intention in an objective sense. The Court thus apparently held as a criterion whether these objects by their nature or by their concrete or acute endangerment could actually contribute to the commission of that 262 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation offence. Thus, the Court had demonstrated a too narrow and therefore erroneous understanding of Article 46, first paragraph, (old) CC. The Court had failed to assess whether at the time of the action the objects seized, separate or together, by their outward manifestation, can be suitable for the criminal purpose that defendant has in using them.’ Thus, the evaluation need not be based on preparatory acts that provide a real possibility that the crime is committed, but a hypothetical possibility that the offender might reach that point seems now sufficient. It should however be kept in mind that the Samir A. saga constitutes an exceptional case, for it concerns the very serious endeavour of committing a large-scale terrorist attack.28 3.5.3. The mens rea of preparatory acts Article 46 DCC explicitly refers to an intention to prepare a criminal offence. This would on first sight also include the broad notion of dolus eventualis to establish liability for a preparatory offence. Placed in the broader context of the offence, however, it seems that the word intention needs to be construed more restrictively in the realm of preparatory acts. This is understandable if one considers the prominent role that intentions play here and that the objective conduct discernible is often innocuous and ambiguous. The less instructive the conduct that occurred, the more weight one should place on the fault requirement. In almost every household you will find objects, like for instance a car, chemicals, etc., which could be regarded as means for preparing a criminal offence. But only if a criminal purpose can be proven independent of these means is the fault requirement of the offence fulfilled.29 The intention of the perpetrator needs to furthermore be directed towards the commission of a particular crime. This is because preparatory acts are only punishable in relation to some serious offences. 4. ATTEMPT 4.1. INTRODUCTION Once the actor has passed the preparatory stage, the law on criminal attempts comes into play. The very essence of an attempt is that the defendant has for whatever reason failed to commit the full offence, for example if a burglar is 28 The case was subsequently returned to the Amsterdam Court of Appeal (17 September 2007, ECLI:NL:GHAMS:2007:BB3756) which imposed a sentence of four years imprisonment. It ruled that all the belongings of the defendant together and in that connection had a preparatory and criminal nature. 29 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 414. Intersentia 263  Johannes Keiler and David Roef apprehended by the neighbourhood watch before he can break into a house, or Marc, who wants to shoot his uncle Barnaby to inherit his fortune, pulls the trigger but misses. As discussed below, in the law of attempt the tensions between the pattern of manifest and subjective criminality play a role on different levels. First, it influences the doctrine on a fundamental level in regard to the rationale for punishing attempts (section 4.2). Second, it influences the creation of proper criteria for determining the actus reus of attempt liability (section 4.4). Third, the different views may lead to different results with regard to impossible attempts, i.e. attempts which by their very nature cannot come to fruition (section 4.6). Finally, the distinction is of relevance at the level of punishment, in relation to the question of just how much punishment attempts should warrant. 4.2. DIFFER ENT R ATIONALES FOR PUNISHING ATTEMPTS Corresponding to the patterns of manifest and subjective criminality, one may distinguish objective and subjective rationales for punishing attempts. Objective theories focus on the dangerousness or wrongfulness of conduct.30 They can take a variety of forms but most require a concrete endangerment of the underlying protected legal interest.31 Objectivist theories generally stress the importance of legal certainty and protecting individual liberties and therefore tend to draw the line of liability as close as possible to the consummation of the offence. An example of such an approach can arguably be found in the classical phrase that the offender must have commenced with the execution of the criminal offence in order to incur liability.32 Subjective rationales on the other hand focus on the dangerousness or culpability of the actor.33 They see the reason for punishing attempts in the criminal disposition of the actor, the exercise of his criminal intentions or his hostile attitude towards the law.34 Subjective rationales also generally stress the importance of crime prevention. The conduct that actually occurred is only relevant as far as it verifies the firmness of the intent. In other words, subjectivist rationales do not require any form of objective wrongdoing. The conduct requirement, according to these theories, merely fulfils an evidentiary function. The corollary of this approach is that subjectivists generally claim that the 30 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), pp. 340–342. 31 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), Vorbem. §22 Mn 18. 32 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 139. 33 A. Duff, ‘Criminal Attempts’ (Clarendon Press 1996), pp. 147–192. 34 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), pp. 342 et seq. 264 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation punishment imposed for attempts should be just as severe as for the completed offence.35 Due to the fact that both pure objective and subjective rationales have clear shortcomings, an intermediate rationale seems to be preferable to justify the punishment of attempts. These mixed rationales emphasise the social dimension of the conduct in question. Mixed rationales straddle the objective/subjective dichotomy by not only invoking the actor’s criminal intentions or proclivities to justify punishing attempts, but in some variations also the (objective) impression that the occurred conduct makes on society as a whole, without requiring any concrete endangerment. Such a mixed rationale has become the prevalent view in Germany and the Netherlands.36 However, the two systems assign different weight and significance to the objective and the subjective limb of the theory. In Germany, subjective factors such as the actor’s intentions carry more weight while in the Netherlands the focus lies primarily on objective factors such as endangerment. In England the prevalent view seems to put the main emphasis on subjective factors.37 4.3. AN OVERVIEW OF THE LEGAL PROVISIONS ON ATTEMPT We can now turn to the legislative foundations for punishing attempts in Germany, the Netherlands and England. The following overview will set the scene for our subsequent discourse on the general requirements for attempt liability. 4.3.1. Germany §22 GCC contains a definition of attempt. It provides: ‘A person attempts to commit an offence if he takes steps which will immediately lead to the completion of the offence envisaged by him.’ §23 GCC subsequently deals with liability for attempts in general. It holds: ‘(1) Any attempt to commit a felony entails criminal liability; this applies to attempted misdemeanours only if expressly so provided by law. (2) An attempt may be punished more leniently than the completed offence (section 49 (1)). 35 R.A. Duff, ‘Criminal Attempts’ (Clarendon Press 1996), pp. 151 et seq. 36 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 388; A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), Vorbem. §22 Mn 22. 37 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), pp. 455–457. Intersentia 265  Johannes Keiler and David Roef (3) If the offender due to gross ignorance fails to realize that the attempt could under no circumstances have led to the completion of the offence due to the nature of its object or the means by which it was to be committed, the court may order a discharge, or mitigate the sentence as it sees fit (section 49 (2)).’ From §22 GCC we can deduce that the legislator adopted a mixed rationale in order to justify the punishment of attempts. The objective limb can be found in the requirement that the actor needs to take steps which will immediately lead to the completion of the offence. Thus, there must be a certain imminence about the actor’s conduct leading to the commission of the offence. The subjective criterion is reflected in the fact this has to be established according to how the person envisaged the commission of the offence.38 Further hints demonstrating that a mixture of objectivist and subjectivist considerations guide German law can be found in the fact that attempts may be punished more leniently according to §23 (2). Objective reasoning would press here for a mandatory mitigation of punishment due to the absence of harm, while subjectivists would punish attempts as severely as completed crimes as the culpability of the actor appears equivalent to that of the successful perpetrator. 4.3.2. The Netherlands In the Dutch penal system an attempt is defined by Article 45 DCC. It reads as follows: ‘(1) An attempt to commit a serious offence is punishable where the perpetrator manifests his intention by initiating the serious offence. (2) In case of attempt, the maximal principal penalty prescribed is reduced by one third. (3) In cases of a serious offence carrying a sentence of life imprisonment a term of imprisonment of not more than twenty years shall be imposed. (4) The additional penalties for attempt are as for the completed serious offence.’ Similar to the German provision, a mixed approach can be distilled from Article 45 DCC. The objective limb can be seen here in the requirement that the perpetrator must have initiated the offence, while the subjective component is contained in the requirement that the occurred conduct must manifest the would-be perpetrator’s intention. A clear indication of a more objective proclivity in the Dutch penal system can be found in Article 45(3) DCC which foresees a mandatory reduction of the maximum penalty which can only be explained by an objectivist conception of attempts. 38 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §22 Mn 1. 266 Intersentia Even if the Always think auto au you about the interpretation was Chapter IX. Inchoate Offences: Attempt and Preparation 4.3.3. England and Wales => Put on chatght because uff is this - I In England the law of attempt is since 1981 regulated in the Criminal Attempts Act. Section 1(1) provides: ‘If with intent to 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.’ This phrase does however not provide us with much insight into the rationale underlying the English law of attempt. It contains a formula by which a line between attempt and preparation has to be drawn. The enshrined mens rea element is intention, which in literature and jurisprudence is often termed the principal ingredient of the crime.39 This already hints at a subjective conception of attempts. The subjective rationale is however more clearly revealed by section 1(2) of the Criminal Attempts Act 1981 which provides: ‘A person may be guilty of attempting to commit an offence to which this section applies even though the facts are as such that the commission of the offence is impossible.’ Thus, the provision makes it clear that the actor’s criminal proclivities or subjective conception of the deed is what constitutes the central focus of the law of attempts. 4.4. THE ACTUS R EUS OF ATTEMPT: DR AWING THE LINE BETWEEN ATTEMPT AND PR EPAR ATION The central question as regards the conduct requirement of attempts essentially is how close to the consummation of the criminal offence an actor must have come in order to speak of a criminal attempt. As mere intentions are not punishable, a threshold needs to be established in order to demarcate attempts from conduct falling short of an attempt (i.e. preparation). 4.4.1. The German approach §22 GCC requires steps which immediately lead to the completion of the offence, which is the equivalent to ‘more than merely preparatory’ in English law and ‘initiation of the commission of the offence’ under Dutch law. The German 39 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), pp. 457 et seq.; R.A. Duff, ‘Criminal Attempts’ (Clarendon Press 1996), p. 5. Intersentia 267  Johannes Keiler and David Roef courts frequently combine objective and subjective criteria in a test that assumes that attempt liability will arise once the perpetrator has subjectively passed the ‘here we go’ (jezt geht’s los) threshold and objectively commenced his attack on the legal interest, protected by the underlying offence, so that his conduct will without further steps lead to the commission of the actus reus.40 The focus on essential steps, necessarily connected to the commission of the actus reus, however, makes the distinction between attempts and preparation a highly casuistic one, which is also strongly influenced by the offence in question. To demonstrate the functioning of the test in practice, consider the following case. The defendants had agreed to rob the owner of a petrol station. They drove to his house and rang the doorbell, gun in hand and wearing ski masks. However, the door remained closed and, after a neighbour had spotted them, they abandoned the attempt. The Supreme Court, applying the aforementioned formula, convicted the defendants of attempted robbery, as they had subjectively transgressed the ‘here we go’ threshold and had objectively commenced the attack on the legal interest as their conduct would without further steps have led to the commission of the actus reus (threatening the person who opened the door with the gun).41 The importance of the subjective sphere of the perpetrator in the German law on attempts is however further substantiated by the fact that the question whether or not one can already speak of an endangerment of the protected legal interest is to be determined according to the conception of the perpetrator. Thus, if the perpetrator believes that the victim will come into contact with the trap in the foreseeable future, attempt liability will arise. For this reason the Supreme Court for instance convicted several perpetrators of attempted murder, as by night they had attached hand grenades to the cars of the victims which were meant to be detonated by wires connected to the wheels of the car. In one instance the bomb was detected by the victim before entering the car and in another the trigger mechanism malfunctioned and the grenade did not detonate. The Supreme Court held that the perpetrators knew that the victims would use their cars in the foreseeable future and that they had even come within the sphere of action of the trap.42 What these examples demonstrate is that in Germany the temporal element combined with the question whether the perpetrator according to his point of view still has to take further essential steps or even a further decision before embarking on a certain course of conduct plays a crucial role in determining the outer limits of attempt liability.43 40 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 370; A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §22 Mn 36–45. 41 16 September 1975 BGH NJW 1976, 58. See also: 13 August 1996 BGH NStZ 1997, 83; 11 June 2003 BGH NStZ 2004, 38; 9 August 2011 BGH NStZ 2012, 85. 42 7 October 1997 BGH NStZ 1998, 294. 43 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 143. 268 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation 4.4.2. The Dutch approach In a landmark decision very similar to the aforementioned German decision concerning the attempted robbery of the owner of a petrol station, the Dutch Supreme Court established a test to distinguish an attempt from mere preparation which is regularly applied until the time being. Two masked men, carrying weapons and a big bag, had rung the doorbell of an employment agency. However, the door was subsequently not opened but the men were arrested by the police, who had been notified. The Supreme Court upheld the conviction for attempted robbery and held that the acts of the two men could be seen as the initiation of the commission of the offence as these acts can be considered in their outward manifestation to be aimed at the completion of the offence.44 Thus, the test to distinguish attempts from preparatory acts is whether to its outward manifestation the offender’s behaviour can be considered to be aimed at the completion of the offence. Accordingly, the Dutch Supreme Court seems to place special emphasis on the objective impression or meaning of the occurred conduct, a stance which arguably largely corresponds to a pattern of objective criminality.45 However, this does not mean that the would-be perpetrator in the Netherlands must have already brought about part of the actus reus or must have committed the last act. On the contrary, just like in Germany and England conduct taking place before the ‘last act’ can also amount to a criminal attempt, if it is necessarily connected to the commission of the actus reus. The above test was further developed in a case regarding the attempted robbery of an exchange office. Two men were sitting in a stolen car with forged licence plates in front of an exchange office. They were wearing wigs, and the engine of the car was running. They were waiting for the teller to open the exchange office, but when he arrived he recognised the car, grew suspicious and informed the police, who arrested the men. The Supreme Court held that no attempt liability could be established, as the suspects had not initiated the commission of the robbery, as they had not yet left the car nor acted in a way which according to its outward manifestation could be considered to be aimed at the completion of the offence. The court reached this conclusion despite the fact that the police found weapons, handcuffs, rope and tape in the suspects’ car. The court seemingly put the emphasis in this case on the objective elements of criminal attempts. The outward manifestation of the offender’s behaviour must be aimed at the completion of the offence. The social connotation of the conduct is the determining factor here.46 The fact that the car was stolen, had forged 44 HR 24 October 1978, NJ 1979, 52. 45 G.P.M.F. Mols and J. Wöretshofer, ‘Poging en voorbereidingshandelingen’ (Ars Aequi Libri 1994), pp. 26–36. 46 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 390. Intersentia 269  Johannes Keiler and David Roef licence plates and that the occupants of the vehicle were armed, etc. was not discernible for an observer and therefore not part of the outward manifestation of the behaviour.47 4.4.3. The English approach In England, the leading decision on what constitutes acts which are ‘more than merely preparatory’ is R v Gullefer where it was ruled that the defendant had to have ‘embarked on the crime proper’. R v Gullefer (1990) 3 All ER 882 ‘The facts were as follows. On 5 March 1985 the appellant attended the greyhound racing stadium at Romford. During the last race, as the dogs rounded the final bend, he climbed the fence onto the track in front of the dogs, waving his arms and attempting to distract them. His efforts were only marginally successful, and the stewards decided that it was unnecessary to declare “no race”. Had they made such a declaration, by the rules the bookmakers would have been obliged to repay the amount of his stake to any punter, but would not have been liable to pay any winnings to those punters who would have been successful if the race had been valid. When interviewed by the police the appellant said the reasons for his behaviour were partly that a year earlier he had lost a large bet at the stadium by reason of one of the stadium’s staff leaning over the rails and distracting the dog on which he had gambled. He also admitted that he had attempted to stop the race because the dog on which he had staked £18 was losing. He hoped that by his actions the dogs would be distracted, that the stewards would declare “no race” and that he would therefore recover his stake from the bookmaker. […] The main burden of counsel’s submission to us has been the third ground of appeal, namely that the acts proved to have been carried out by the appellant were not “sufficiently proximate to the completed offence of theft to be capable of comprising an attempt to commit theft”. We have been referred to a number of decisions, many of them of respectable antiquity, which show, if nothing else, the difficulties which abound in this branch of the criminal law. The present law is, however, now enshrined in the words of the Criminal Attempts Act 1981. Section 1(1) provides: “If, with intent to 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.” Section 4(3) provides: “Where, in proceedings against a person for an offence under section 1 above, there is evidence sufficient in law to support a finding that he did an act falling within subsection (1) of that section, the question whether or not his act fell within that subsection is a question of fact.” 47 K. Rozemond, ‘De algemene strafbaarstelling van voorbereidingshandelingen in het licht van de pogingsjurisprudentie van de Hoge Raad’ Delikt en Delinkwent (1994), p. 660. 270 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation […] The first task of the court is to apply the words of the 1981 Act to the facts of the case. Was the appellant still in the stage of preparation to commit the substantive offence, or was there a basis of fact which would entitle the jury to say that he had embarked on the theft itself? Might it properly be said that when he jumped on to the track he was trying to steal £18 from the bookmaker? Our view is that it could not properly be said that at that stage he was in the process of committing theft. What he was doing was jumping onto the track in an effort to distract the dogs, which in its turn, he hoped, would have the effect of forcing the stewards to declare “no race”, which would in its turn give him the opportunity to go back to the bookmaker and demand the £18 he had staked. In our view there was insufficient evidence for it to be said that he had, when he jumped onto the track, gone beyond mere preparation. […] The appeal against conviction is allowed and the conviction quashed.’ In short, the Court held that his act was merely preparatory, as he had not yet approached the bookmaker to claim back his stake. Attempt only begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper. This test was also applied in the more recent case of R v Dagnall.48 In this case the defendant was convicted of attempted rape. He had met the victim at a bus stop at night and a conversation followed, in which it became apparent that he wished to have sexual intercourse with her. As the victim attempted to move away from the bus stop the defendant followed her, grabbed her by the hair from behind, pulled her forcibly towards him and finally forced her against a fence. Fortunately at this point the police arrived at the scene and arrested the defendant. The court concluded that the acts taken by the defendant had brought him beyond the merely preparatory stage. ‘He had virtually succeeded in achieving all that he needed. He had overcome her resistance and it was only […] the arrival of the police car that prevented the ultimate offence from taking place’.49 Unfortunately, however, English courts have failed to adopt a consistent approach and fluctuate between a mixed approach with more weight on objective factors and a subjective approach.50 More restrictive, viz. objective, are decisions such as R v Geddes,51 where the defendant was found in a boys’ lavatory block at a school in Brighton. He was carrying a rucksack, containing a large kitchen knife, some lengths of rope and a roll of masking tape, thus all articles that pointed towards an attempt of false imprisonment. His conviction, however, was 48 R v Dagnall EWCA Crim 2441. 49 See: A.T.H. Smith, ‘Proximity in attempt: Lord Lane’s “midway course”’ Criminal Law Review (1991), pp. 576–582. 50 A. Ashworth and J. Horder, ‘Principles of criminal law’ (Oxford University Press 2013), pp. 454 et seq. See also: M. Brockhaus, ‘Die strafrechtliche Dogmatik von Vorbereitung, Versuch und Rücktritt im europäischen Vergleich’ (Verlag Dr. Kovac 2006), pp. 327–330. 51 R v Geddes Crim LR 894. Intersentia 271  Johannes Keiler and David Roef quashed and it was held that his acts were merely preparatory, as he did not have any contact or communication with any pupil, and had never confronted any pupil in the school. More subjective tendencies, on the other hand, can be found in R v Griffin dealing with attempted child abduction.52 The defendant in this case wanted to take her children out of England without the permission of the local authority in whose care they were. She had bought ferry tickets to Ireland and then tried to take the children out of school, saying that they were to go to the dentist. The teacher however refused to let the children leave. The defendant was convicted of attempted child abduction and the Court of Appeal upheld her conviction arguing that it was immaterial that the children had not been given into her custody and that she had not embarked on the journey. In asking the school whether she could take the children, she had manifested her intentions which amounted to an act of attempted abduction. One possible explanation for the fluctuating approach of English law in regard to criminal attempts can arguably be found in the fact that the determination of when conduct can be considered to be ‘more than merely preparatory’ is in the English penal system seen as a question of fact, to be decided by the jury.53 4.5. THE MENS R EA OF ATTEMPT As the desired result is per definition absent in criminal attempts, we are often left with only the perpetrator’s intentions to determine what he actually set out to achieve and how. Here we are confronted with the different approaches as to mens rea standards adopted in the English common law tradition and in the civil law countries of Germany and the Netherlands. 4.5.1. The fault element in the Netherlands and Germany The mens rea requirement is not that problematic in Dutch and German jurisprudence on criminal attempts. It is generally accepted in both systems that the lowest form of intention, i.e. dolus eventualis, is sufficient to trigger attempt liability.54 The Dutch Supreme Court has accepted dolus eventualis as a sufficient mens rea standard for attempt liability in the case of a car driver who attempted to ride over a police officer. The police officer at the last moment jumped out of harm’s way, and the driver was convicted of attempted manslaughter, as in the 52 R v Griffin Crim LR 515. 53 Scholars have denounced this state of affairs which might lead to inconsistencies and propose that the question should be one of law left to the judge. See: ‘Conspiracy and attempt, Consultation Paper’ LAW COM No 183 , p. 20; C.M.V. Clarkson, ‘Attempt: The Conduct Requirement’ Oxford Journal of Legal Studies (2009), p. 41. 54 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 387. 272 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation court’s opinion he had accepted the considerable chance that the police officer could be killed by his actions.55 As discussed in Chapter VII, dolus eventualis requires both a volitional and a cognitive component. For attempt this means that the perpetrator envisaged circumstances which in case of manifestation would amount to the commission of the actus reus of the aspired offence. This includes any aggravating subjective requirements. Thus, in order to be liable for aggravated murder pursuant to §211 GCC, the perpetrator must have the intention to kill and have acted out of one of the subjective criteria mentioned therein, for instance bloodlust. If this is not the case, only liability for attempted manslaughter pursuant to §212 GCC can arise.56 4.5.2. The English fault element The fault element for attempt as outlined by section 1(1) of the 1981 Act requires ‘intent’ to commit the substantive offence. As a general rule one can only be liable for an attempt if one acts with the intention of committing the complete offence. This means that even if the full offence can be committed recklessly, there will be no liability for attempt unless intent is established.57 For example, for most non- fatal offences against the person (assault, battery) recklessness is sufficient, but it is not enough to convict someone for attempting these offences. However, in practice things may become more complicated depending on whether the actus reus of the offence not only defines conduct, but also requires the bringing about of certain consequences, or includes specific circumstances. First, the doctrine of attempt will require proof of an intention regarding the consequence of the substantive offence.58 Let us illustrate this with the offence of murder, a classical example of a crime requiring the occurrence of a consequence (i.e. the death of a human being). Whilst an intention to cause grievous bodily harm is sufficient to warrant a conviction for murder, attempted murder still requires an intention to kill, although the courts have also accepted indirect intent.59 In a pertinent case the defendants were involved in a fight with the victim. They threatened to kill him and finally dropped him from a third floor balcony. He survived the fall, though was severely injured. They were convicted of attempted murder and the Court of Appeal upheld the conviction, holding that the jury was entitled to draw the inference that they were intending or trying to kill the victim given that they foresaw that the victim’s death was a virtually certain outcome of their conduct.60 55 HR 6 February 1951, NJ 1951, 475. See also: Chapter VII, section 2.3.2. 56 M. Bohlander, ‘Principles of German Criminal Law’ (Hart Publishing 2009), p. 140. 57 C. Elliot and F. Quin, ‘Criminal Law’ (Pearson Education Limited 2010), p. 257. 58 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), p. 459–460. 59 R v Wollin 4 All ER 103. 60 R v Walker 90 Cr App R 226. Intersentia 273  Johannes Keiler and David Roef Second, where the substantive offence requires intention or knowledge as to circumstances, it is obvious that the same will apply for attempts. The picture gets more blurry, however, if the substantive offence requires less than intention or knowledge. Although an attempt requires an intended result, it is clear that an intention as to circumstances is not required, as long as the substantive offence does not require intent in this regard.61 A case in point here is the offence of rape. In R v Khan the Court of Appeal, after carefully considering the conflicting opinions, came to the conclusion that ‘a man may commit the offence of attempted rape, even though he is reckless whether the woman consents to sexual intercourse since the attempt relates to the physical activity and his mental state of recklessness relates, as in the offence of rape itself, not to that activity but to the absence of the woman’s consent and therefore no question of attempting to achieve a reckless state of mind arises in such circumstance’.62 This conclusion seems right in principle, as it is hardly conceivable to recklessly have sexual intercourse. Furthermore, a ruling to the contrary might have severely curtailed the protection offered to citizens by the law of attempts, as it seems a very daunting challenge for the prosecution to prove that the defendant intended that the woman with whom he had sexual intercourse did not consent.63 4.6. IMPOSSIBLE ATTEMPTS If it is impossible to commit a crime, it is obvious that no one can be convicted for committing it. This does not however mean that one cannot attempt to commit this crime. This happens when the defendant does not realise that what he attempts is impossible, that he is making a mistake, as when he tries to kill a person who is already dead. There are a multitude of textbook examples which illuminate the picture. Suppose for instance that Brian wants to kill his uncle and therefore pours a white powder which he beliefs to be arsenic into his tea. Contrary to his belief, however, the white powder is not arsenic but harmless sugar. Thus, an impossible attempt can be defined as an attempt that could under no circumstances have led to the envisaged result. An attempt may be considered impossible due to the inaptness of the object or means for the commission of the offence. One can distinguish two further categories of impossibility. On the one hand are what might be termed imaginary offences or legal impossibilities. The offender in these scenarios believes that what he is doing is a criminal offence when in reality it is not. Thus, if Amil believes that adultery constitutes a criminal 61 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), p. 465. 62 R v Khan and others 2 All ER 783. 63 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), pp. 466–467. 274 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation offence in Europe and nevertheless cheats on his wife, can it then be said that he is attempting the ‘crime’ of adultery? On the other hand are superstitious attempts where the impossibility stems from the fact that the actor is attempting to achieve his goal by applying superstitious means such as curses or invoking demons. 4.6.1. Impossibility in the Netherlands: an objective approach Traditionally a distinction is drawn between relatively and absolutely impossible attempts. Relatively impossible attempts are attempts where 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.64 These attempts give rise to criminal liability as they still carry an inherent danger of causing harm. Think for instance of a case where someone tries to kill his mother-in-law with a non-lethal dose of strychnine. Absolutely impossible attempts, on the other hand, are attempts that under no circumstances can lead to the envisaged result, like for instance killing a corpse. These attempts will not give rise to criminal liability, as they pose no danger. Unlike (relative) factually impossible attempts, legal impossibilities (mistakes of law) are not punishable. Consider the example of two foreign men demonstrating for gay rights in The Hague, believing that such a demonstration is prohibited in the Netherlands. The prevalent view rejects liability, because the consummation of the presumed criminal offence is legally impossible.65 This is in line with the underlying objectivist theory of attempts, where the objective element plays a more important role than the subjective, i.e. the evil, intentions. 4.6.2. Impossibility in England and Wales: a subjective approach The subjective approach in regard to impossible attempts is firmly rooted in English law. Section 1(2) and (3) of the Criminal Attempts Act 1981 reads as follows: ‘(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible. (3) In any case where – (a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but (b) if the facts of the case had been as he believed them to be, his intention would be so regarded, then, for the purposes of subsection (1) above, he shall be regarded as having an intent to commit that offence.’ 64 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), p. 395. 65 C. M. Pelser, ‘Preparations to commit a crime – The Dutch approach to inchoate offences’ Utrecht Law Review (2008), p. 61. Intersentia 275  Johannes Keiler and David Roef What matters thus is whether on the facts as the defendant believed them to be, the actor’s conduct was more than merely preparatory. Generally, English law distinguishes two categories of impossible attempts. On the one hand there is the category of legal impossibility, wherein the defendant achieves everything that he set out to do, but contrary to what he believes the intended result does not constitute a criminal offence. There is a wide consensus that an imaginary offence should not lead to criminal liability.66 The House of Lords endorsed this view in R v Taaffe.67 In this case the defendant imported what he believed to be foreign currency into the United Kingdom, which he thought constituted a criminal offence. Effectively it did not and furthermore it turned out that the packages he attempted to smuggle did not contain currency but cannabis. The Court held: ‘When the state of an accused person’s mind and his knowledge were ingredients of the offence with which he was charged, he has to be judged on the facts as he believed them to be. Accordingly, since the respondent mistakenly believed that by clandestinely importing currency he was committing an offence, his mistake of law could not convert his action into the criminal offence of “being knowingly concerned” in the importation of a controlled drug […] since he had no guilty mind in respect of that offence.’ The second category, which has proved much more controversial over the years, are factually impossible attempts. Under this category fall cases where the intended objective would have constituted a criminal offence but the completion of the crime was scuppered due to the existence of facts unknown to the defendant.68 The House of Lords had to deal with such a case in R v Shivpuri.69 In this case the defendant was apprehended by custom officials while in possession of a suitcase. He admitted that it contained heroin, but analyses showed that the substance in the suitcase was snuff. The accused was charged with attempting to distribute heroin. On appeal the question arose whether factual impossibility would amount to a defence. The House of Lords held that the defendant intended to smuggle heroin and that his conduct was more than merely preparatory in furtherance of this objective. In the light of this decision it becomes clear that factual impossibility is no defence to the crime of attempt in the English penal system. It is sometimes argued that this amounts to punishing mere thoughts, or that a conviction in 66 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), p. 361. 67 R v Taaffe 1 AC 539. 68 K. Arenson, ‘The Pitfalls in the Law of Attempt: A New Perspective’ The Journal of Criminal Law (2005), pp. 162 et seq. 69 R v Shivpuri 2 All ER 334. 276 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation such cases would infringe the principle of legality.70 However, viewed from the subjectivist perspective, this outcome is defensible, as the culpability of the actor for taking the risk that certain circumstances exist is not diminished by the objective fact that they do not.71 From the foregoing it can be derived that English law uses for the demarcation of (punishable) impossible attempts and (non-punishable) imaginary offences the distinction between mistakes of law and mistakes of fact. This distinction already follows from the wording of section 1(2) of the 1983 Criminal Attempts Act which makes it clear that a given mistake must relate to facts. 4.6.3. Impossibility in Germany: a mixed approach Corresponding to the prevalent mixed rationale for punishing attempts in Germany, the approach taken towards impossible attempts in this system also shows the influence of objective as well as subjective factors. Subjective considerations are present in the generic rule which follows from §23 (3) GCC that factually impossible attempts ought to be punishable. Objective considerations on the other hand are discernible in the fact that legal impossibility is not considered punishable.72 What makes German law quite unique is that it accepts a separate category of impossible attempts where, due to gross ignorance about the causal facts and circumstances of the case, the offender fails to realise that the attempt could under no circumstances have led to the completion of the offence. This category is distinguished from superstitious attempts (and of course also imaginary attempts) which are considered not punishable. According to §23 (3) GCC the Courts may in these cases order a discharge or mitigate the sentence as it sees fit under §49 (2) GCC. Under this category fall scenarios which no person in his right mind would take seriously. The perpetrator in these cases fundamentally errs about the laws of nature, so that an impartial observer would figuratively speaking, shake his head in disbelieve and shout, ‘you moron!’.73 One could thus subsume here cases where the perpetrator tries to shoot down an airplane travelling at a high altitude with his handgun or tries to poison his wife by using mint tea. In the Netherlands such attempts would be qualified as absolutely impossible attempts, as the applied means can under no circumstances lead to the commission of the offence. 70 B. Hogan, ‘The Criminal Attempts Act and Attempting the Impossible’ Criminal Law Review (1984), pp. 584 et seq. 71 R.A. Duff, ‘Criminal Attempts’ (Clarendon Press 1996), p. 163. 72 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), pp. 455 et seq. 73 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 452. Intersentia 277  Johannes Keiler and David Roef 4.7. VOLUNTARY WITHDR AWAL The absence of any tangible form of harm as a characteristic feature of attempt liability can raise the question of how to deal with cases where the would-be perpetrator experiences a sudden change of heart and voluntarily abandons his attempt. Should a person for instance profit from remorse which led him to desist after already having the victim in his sights? 4.7.1. The common law versus civil law approach One crucial rationale for punishing attempts is to allow timely intervention by law enforcement before any harm has occurred and to seize and restrain the socially dangerous. Arguably a genuine change of heart proves that intervention and restraint were unnecessary in that situation. Furthermore, on a more subjectivist note, it could be said that voluntary withdrawal shows that the actor is not as dangerous as initially thought, as his criminal will was insufficiently strong to carry out the criminal act, and is therefore not the type of person the law should be concerned with.74 Yet whether or not one is willing to accept these arguments hinges to a large extent on one’s general conception of (attempt) liability. It is here where the differences between the English common law and the civil law approach to attempt liability become most visible. In England once the actus reus and mens rea of a criminal attempt are present, liability will ensue. A criminal attempt is accordingly seen as an offence in itself. Hence, once a person has exceeded the threshold of merely preparatory acts, it cannot make a difference whether the crime was not completed because of voluntary desistance or for any other conceivable reason.75 Corresponding to this conception of attempt liability, English law does not acknowledge voluntary withdrawal as a defence.76 It needs however to be noted that voluntary withdrawal is an important factor at the sentencing stage and frequently leads to mitigated punishment.77 Conversely, in the Dutch and German system attempt liability is seen as (only) a stage of development in the consummation of the offence, creating room for a person to change his mind and abandon the criminal enterprise. In the Netherlands the concept of voluntary withdrawal is enshrined in Article 46(b) DCC which provides: 74 G.P. Fletcher, ‘Rethinking Criminal Law’ (Little, Brown and Company 1978), p. 186, 190. 75 D. Ormerod and K. Laird, ‘Smith and Hogan: Criminal Law’ (Oxford University Press 2015), p. 483. 76 A.P. Simester, J. Spencer, G.R. Sullivan and G. Virgo, ‘Simester and Sullivan’s Criminal Law – Theory and Doctrine’ (Hart Publishing 2013), pp. 353–354. 77 K. Arenson, ‘The Pitfalls in the Law of Attempt: A New Perspective’ The Journal of Criminal Law (2005), p. 162. 278 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation ‘Neither preparation nor an attempt to commit a serious offence obtains where the serious offence has not been completed by reason only of circumstances dependent on the perpetrator’s will.’ Likewise §24 GCC provides: ‘(1) A person who of his own volition gives up the further execution of the offence or prevents its completion shall not be liable for the attempt. If the offence is not completed regardless of his actions, that person shall not be liable if he has made a voluntary and earnest effort to prevent the completion of the offence. (2) If more than one person participate in the offence, the person who voluntarily prevents its completion shall not be liable for the attempt. His voluntary and earnest effort to prevent the completion of the offence shall suffice for exemption from liability, if the offence is not completed regardless of his actions or is committed independently of his earlier contribution to the offence.’ Both systems thus allow a person to escape liability if he forestalls the consummation of the criminal offence. Preconditions for this escape route are that the actor has entered the attempt phase and that at the time of the withdrawal the offence in question could still be realised. 4.7.2. Preconditions for withdrawal: the need for an (in)complete attempt Whether and under which conditions a voluntary withdrawal is possible depends foremost on the nature of the attempt itself. We have to distinguish here between failed, complete and incomplete attempts. Voluntary withdrawal will not be possible if the offender’s attempt has failed. This is the case when the offender’s goal can no longer be achieved. For instance, the oxygen cutting equipment with which Francis tries to open a safe has broken down, or the victim of a robbery realises that the gun pointed at him is a replica and refuses to hand over his wallet.78 Failed attempts, i.e. where the intended goal can no longer be achieved, have however to be distinguished from incomplete and complete attempts respectively. In short, an incomplete attempt is the case when the actor has not yet done all that he needs to do to set the causal chain in motion, for example when he points a gun at the victim, cocks it, but then does not pull the trigger. A complete attempt would be the case where the actor has done everything and now only needs to wait for the result to occur, for example when he has put a time bomb in the victim’s house. It follows that in the event of an incomplete attempt, simple voluntary desistance might suffice, while in the case of a complete attempt a concrete counter action will be required (like disarming the time bomb).79 78 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), pp. 502 et seq. 79 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 422–423. HR 3 March 2009, NJ 2009, 236. Intersentia 279  Johannes Keiler and David Roef In practice it can however be difficult to distinguish between incomplete, complete and failed attempts, especially because here a subjective versus an objective approach can also play a significant role. In line with the general subjective approach to attempt liability, German law speaks in this context of the ‘withdrawal horizon’. This means that an attempt will be considered incomplete – with the result that simple desistance will suffice – as long as the offender, at the moment when the withdrawal takes place, has in his view not done everything necessary to achieve his goal, but believes that by simply continuing to act he could reach it.80 To illustrate this subjective approach, consider the following case. The defendant had stabbed the victim in the neck with dolus eventualis to kill. The victim however remained conscious and a fight followed after which the victim lay on the ground, but was still able to speak to the defendant. The defendant subsequently left the room, which allowed the victim to flee through the living room window. Despite the life-threatening injuries the doctors managed to save the victim. The German Supreme Court held that the facts of the case constituted an incomplete attempt from which the defendant could withdraw by desistance (as he had not pursued the victim). It stressed that in regard to the demarcation of complete and incomplete attempts the view of the offender was decisive. Even though the defendant at some point might have thought that he had done everything necessary to kill the victim, he must have changed his assessment of the situation at the moment when the victim managed to flee through the window, so the argument went.81 The Dutch system takes a much more objective approach. For instance, in a case where the defendant attempted to kill his brother with a crowbar and severely injured him, but in the course of the beating changed his mind and stopped the beating, the Dutch Supreme Court held that given the actions of the perpetrator and the serious injuries inflicted (the victim had inter alia suffered a pneumothorax), the attempt was completed and that simple desistance would not suffice for withdrawal here. Conversely, in Germany, such cases can be seen as incomplete attempts, with the result that desistance will suffice to invoke voluntary withdrawal. Thus, an objective approach will often at an earlier point in time conclude that the attempt was complete, thereby excluding the possibility of withdrawing by mere desistance, leaving only the possibility of withdrawing by a concrete counter action. How does the Dutch system distinguish failed from incomplete attempts? The difference with the German system is perhaps best revealed if one juxtaposes two pertinent cases of attempted homicide. In a Dutch case a man had attempted 80 A. Schönke and H. Schröder, ‘Kommentar zum Strafgesetzbuch’ (Verlag C.H. Beck 2014), §24 Mn 12 et seq.; C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 528. 81 16 February 1993 BGH NJW 1993, 2125. See also: 21 January 1998 BGH NStZ-RR 1998, 134, 8 February 2007 BGH NStZ 2007, 399. 280 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation to kill a sleeping woman by connecting two wires of a cable to her toes and plugging the cable into a socket. The woman woke from the pain, but did not die from the electricity and the man unplugged the cable.82 The Supreme Court rejected the plea of voluntary withdrawal, because the man had only unplugged the cable after his attempt had failed due to circumstances independent of his will, i.e. that the woman had not died from the shock. In a similar German decision, A had poured petrol over his wife because she threatened to divorce him. He however did not manage to ignite the petrol with his matches and after a short struggle the wife was able to flee. A pursued her and subsequently strangled the victim until she temporarily lost consciousness. Yet, allegedly due to a sudden change of heart, he desisted from finishing what he had started and left the scene. The Court of Lower Instance had rejected voluntary withdrawal but the German Supreme Court overruled the judgment and held that despite the fact that his initial plan had failed, the offender had realised that he could still accomplish his goal by applying another means (strangulation) from which he had voluntarily withdrawn.83 The Court thus adopted a more holistic approach and viewed the two attempts as a coherent event which amounted to an incomplete attempt. It becomes apparent that Dutch jurisprudence would assume in those cases that the attempt had failed and exclude voluntary withdrawal, while in Germany, where a more subjective stance is taken, withdrawal would still be possible if the perpetrator had realised that he could still achieve his goal by another means. 4.7.3. The voluntariness requirement The core issue in the realm of withdrawal is whether it was voluntary. This requirement finds expression in the Dutch penal system in the phrase that the offence must not have been completed by reason only of circumstances dependent on the perpetrator’s will. Similarly, §24 GCC makes it clear that the offender must give up the further execution of the offence of his own volition. Thus, the crucial point here is to distinguish and prove a bona fide change of heart from withdrawal prompted by outside forces such as fear of police presence or surveillance. Both systems seem to favour a psychological approach which considers withdrawal to be involuntary if the circumstances of the situation exerted such pressure on the offender that he had no other choice than to withdraw.84 The theory thus draws a distinction between autonomous and not autonomous motives for withdrawal. If the decision to withdraw emanated from the offender’s 82 HR 19 April 1983, NJ 1983, 573. 83 7 February 1986 BGH NStZ 1986, 264. 84 C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 591. Intersentia 281  Johannes Keiler and David Roef own free will, voluntariness will be assumed. If the decision was however prompted by external stimuli the withdrawal will be involuntary. Thus, one can apply the following formula as a yardstick in both systems: a withdrawal will be considered voluntary if the offender thinks ‘I do not wish to carry on even if I could’, while it will be involuntary if he thinks ‘I cannot carry on even if I wanted to’.85A withdrawal is generally deemed involuntary if the perpetrator has abandoned the criminal enterprise because of the intervention of the police,86 fear of detection,87 detection by the victim, etc. To achieve reasonable outcomes and to make the evaluation process more concrete, a more normative criterion is often used, which bases the assessment of voluntariness on the view of a ‘reasonable criminal’. Thus if an offender withdraws without any reasonable grounds from the viewpoint of a criminal mind (e.g. because of remorse) from his enterprise, the withdrawal can be considered voluntary. If his conduct is however prudent from the point of view of a reasonable criminal, then the withdrawal will most likely be involuntary.88 In a Dutch case a withdrawal was for instance deemed involuntary in the case of a sailor who, after the captain had ordered a cabin search to investigate some petty theft, had confessed to the captain that he had eight kilos of cocaine in his cabin. The court held that given the fact that the sailor had no chance to hide the cocaine after the cabin search was ordered, the completion of the offence had been prevented by circumstances independent of the defendant’s will, namely the likely detection of his cargo during the search.89 The difference between the German and Dutch approaches to voluntariness is however once again that the Dutch penal system adopts a more objective approach, while in Germany voluntariness is determined according to the view of the perpetrator at the time that the decision was made. However, it is in any case not necessary for the defendant to have withdrawn because of morally praiseworthy motives. The law is not interested in whether or not the defendant withdrew due to a moral epiphany, but the law’s focus is rather on preventing the occurrence of harm.90 Nor is it necessary for only internal factors to have played a role in the withdrawal. External factors can also play a role, as long as the contribution of the perpetrator remains significant. A pertinent example of such a case in the Dutch penal system is one of attempted 85 This formula is the so-called Frank’s formula, named after a well known German academic. 86 HR 25 October 1988, NJ 1989, 456. 1 February 2005 BGH NJW 2005, 1205. 87 HR 12 April 2005, ECLI:NL:HR:2005:AS6095. 88 B.M.E. Mallens and M.J. Hornman, ‘Vrijwillige terugtred bij poging’ Delikt en Delinkwent (2010), pp. 78 et seq.; C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 600. 89 HR 25 October 1988, NJ 1988, 456. 90 J. de Hullu, ‘Materieel Strafrecht – Over algemene leerstukken van strafrechtelijke aansprakelijkheid naar Nederlands recht’ (Kluwer 2015), pp. 422–425; C. Roxin, ‘Strafrecht Allgemeiner Teil, Band II: Besondere Erscheinungsformen der Straftat’ (Verlag C.H. Beck 2003), p. 599. 282 Intersentia  Chapter IX. Inchoate Offences: Attempt and Preparation rape. The defendant had introduced himself to his 17-year-old victim as a movie producer and had lured her to his flat. There he told the victim to re-enact a bank robbery, as a result of which the victim agreed to being tied up. The victim only grew suspicious when he dragged her onto a mattress and began to undress her. The victim tried to resist and finally asked the perpetrator ‘what sense would it make to rape me?’. This statement seemingly brought the man to his senses and he desisted from raping the woman. The Supreme Court accepted the claim of voluntary withdrawal given the fact that he could have gone through with the crime.91 The Supreme Court apparently thought that the external factor of the woman’s statement was not the decisive reason that had led to the (internal) change of heart of the defendant. It was thus deemed that the crucial factor in this withdrawal was the perpetrator’s conscience. 5. CONCLUDING R EMARKS Having outlined the different approaches to inchoate offences, we may now draw some final conclusions. First of all, it has become evident that the Dutch approach to the criminalisation of preparatory acts is quite unique. Although all penal systems use specific preparatory offences in their own right to expand the scope of criminal law in our modern culture of control, the Netherlands has also taken the step of introducing a general doctrine of preparation. This is, however, partly the result of a rather restrictive conception of criminal attempts which led to unsatisfactory results in terms of crime prevention. The systems of Germany and England may not have adopted such a general doctrine, but their increasing use of endangerment offences, and the introduction of legislation like the Serious Crime Act 2007, show that a tendency towards extending the range of criminal law to preparatory conduct can also be perceived in these systems. As regards the law of attempt, it has become clear that if one puts the three systems on a continuum, the Netherlands adopts the most objective approach, English law fluctuates between a mixed and a subjective approach, while German law adopts a mixed approach with a strong emphasis on the subjective criterion of the perpetrator’s intentions. We have seen that these different views may lead to different results when it comes to the determination of the starting point of attempt and the evaluation of impossible attempts. It has also become evident that the English system does not acknowledge voluntary withdrawal as a defence. In common law an attempt is perceived as an (inchoate) offence in its own right and not just a step in the direction of the complete offence. To conclude, our comparative study has helped us to become aware of the main problem underlying inchoate offences, namely how far we can legitimately expand criminal liability, in a liberal democratic society, without 91 HR 15 December 1992, NJ 1993, 333. See also: HR 19 December 2006, NJ 2007, 29. Intersentia 283  Johannes Keiler and David Roef unduly infringing individual freedoms. We have seen how criminal law is increasingly concerned with risk prevention and crime control. In particular, the criminalisation of (specific) preparatory acts bears witness to this change of policy, as these acts are by definition far removed from the occurrence of criminal harm, at least in the traditional sense of the word. It is also important to keep in mind that the scope of liability is inextricably linked to the (investigative) powers of the police in this area of the law. The broader the scope of liability, the earlier the police will be able to intervene. The narrower the scope, on the other hand, the longer the police will have to delay their intervention in order to secure a conviction. Merely focusing on the protection of individual liberties will accordingly almost certainly not do, because once we curtail the possibility of early police intervention to arrest and punish those who are about to commit a crime we threaten public safety and expose others to a significant risk of harm. Since both of these underlying rationales, i.e. the protection of public safety and individual liberties, are legitimate aims and boundaries of any penal system, it becomes apparent that a proper balancing of these considerations is vital to circumscribe the scope of inchoate offences. It has been shown that the contours of the law will vary depending on which of the two rationales is emphasised, and whether the focus is more on the pattern of manifest criminality or subjective criminality. 284 Intersentia