Introduction
Imagine a person decides to commit an offence, gathers the necessary materials and begins carrying out the plan, but is stopped before the intended crime is completed.
Can criminal liability still arise?
The law recognises that certain conduct can become punishable even when the intended offence is not completed. But the boundary between preparation and attempt is important.
Preparation Versus Attempt
Preparation generally involves arranging the means necessary to commit an offence. Attempt involves conduct that moves beyond preparation towards the commission of the intended offence, subject to the statutory requirements.
The distinction is not always easy to draw.
Buying an object that could be used to commit an offence may remain preparation. Taking a further step directly connected with executing the criminal plan may potentially amount to attempt.
Why the Boundary Matters
Criminal law does not ordinarily punish every thought or preliminary plan. Doing so would create serious problems because people can change their minds before acting.
Attempt provisions therefore recognise a point at which conduct becomes sufficiently proximate to the commission of an offence to attract criminal liability.
Evidence in Attempt Cases
The prosecution may rely upon the accused's conduct, surrounding circumstances, communications and physical evidence to establish the intention and stage reached.
The defence may argue that the conduct never crossed the line from preparation into attempt or that the necessary intention has not been established.
Conclusion
The fact that a crime was never completed does not necessarily mean that criminal law has no application. But neither can every preparatory act be treated as an attempt.
The dividing line lies in the nature of the conduct, intention and statutory requirements. This makes attempt cases particularly dependent upon careful factual analysis.
