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Desert and Punishment for Acts Preparatory to the Commission of a Crime

Published online by Cambridge University Press:  20 July 2015

Daniel Ohana
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Conduct preparatory to the commission of a crime typically comprises acts such as gathering vital information, making initial contact with the prospective victim, reconnoitering the site of the crime, obtaining materials and tools, and gaining expertise knowledge. Many Western penal codes categorically distinguish preparatory actions from a punishable attempt in attending to cases whereby an actor engages in conduct planned to culminate in the commission of an offence. The article focuses on the desert of an actor who, after having formed an intention to commit a crime, conceives a plan and gets underway by performing acts of preparation - without commencing to commit the substantial offence, let alone bringing about its consummation. The actor’s failure to carry out the offence may be attributed to a vast array of causes, ranging from a decision on his part, prompted by a sudden change of heart, to discontinue the operation, through an inability to gain access to crucial information or tools, to the disappearance of the targeted victim or property. The article is divided in two parts. The first part addresses the factors which affect the blameworthiness of an actor intent on committing a crime as he gradually implements his plan by laying the groundwork for his undertaking. By considering the punishment of acts preparatory to the commission of a crime in the light of the principle of individual autonomy and the dilemma of moral luck, it explores the various respects in which the culpability of an actor who only engages in preparatory conduct differs from that of an actor who commences to commit the targeted offence. The second part takes the analysis a step further by probing the exceptional conditions under which preparatory actions may be sufficiently wrongful to warrant pressing the criminal law into service to provide for a punitive response. In this respect, attention focuses on such factors as the operational significance of the preparatory conduct; the acquisition of specialized tools and equipment; the organizational support available; and the seriousness of the substantial offense targeted.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 20 , Issue 1 , January 2007 , pp. 113 - 142
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Copyright © Canadian Journal of Law and Jurisprudence 2007

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References

I wish to thank Professor Miriam Gur-Arye for her intellectual and moral support throughout this undertaking. I would also like to thank Daniel Statman for his helpful comments and suggestions. The financial assistance of the British Friends of the Hebrew University Law Faculty to the Jerusalem Criminal Justice Study Group is also appreciatively acknowledged.

1. See generally Pradel, Jean, Droit Pénal Comparé at 273–88 (Paris: Dalloz, 2nd ed., 2002)Google Scholar. See also Fletcher, George P., Basic Concepts of Criminal Law at 171–72 (New York: Oxford University Press, 1998)Google Scholar.

2. See Criminal Code, R.S.C. 1985, c. C-46, sec. 24 [Canadian Criminal Code]. See generally Rainville, Pierre, “La gradation de la culpabilité morale et des formes de risque de préjudice dans le cadre de la tentative” (1996) 37 C. de D. 909 Google Scholar.

3. See Criminal Attempts Act 1981, c. 47, sec. 1.

4. Strafgesetzbuch, sec. 22 [StGB].

5. See Code Pénal, sec. 121-5. See generally Devèze, Jean, “Le commencement d’exécution de l’infraction en jurisprudence” (1981) Revue de science criminelle et de droit pénal comparé 777 Google Scholar.

6. See Código Penal, sec. 16. See generally Bacigalupo, Enrique, Derecho Penal: Parte General (Buenos Aires: Hammurabi, 2nd ed., 1999) at 472–74 Google Scholar.

7. The Canadian Criminal Code, for instance, contains several specific offences proscribing the collection or fabrication of tools specially designed for use in the commission of a crime. See e.g., sec. 342.01 (Making instruments for forging or falsifying credit cards); sec. 342.2 (Making device designed to fraudulently obtain computer service). The offence of conspiracy, at sec. 465, which consists of an agreement between two individuals to commit a crime, also targets preparatory conduct. See discussion on conspiracy below at text accompanying infra notes 117-119.

8. The American Model Penal Code defines the conduct element of an attempt as, inter alia, any “act or omission constituting a substantial step in the course of conduct planned to culminate in the commission of the crime.” (Emphasis added) Model Penal Code, sec. 5.01(1)(c) (Revised Edition With Commentaries, 1985). Under the illustrative guidelines set forth at sec. 5.01(2), the notion of a “substantial step” encompasses actions typically performed at the preparatory stage of an unlawful undertaking, such as reconnoitring the place contemplated for the commission of the crime and the collection or fabrication of materials to be employed in the implementation of the plan. Conduct cannot be held to be a “substantial step” unless it is strongly corroborative of the actor’s criminal purpose. The Model Penal Code’s “substantial step” test has been characterised as “[t]he most common test in modern American codes[.]” Robinson, Paul & Darley, John, Justice, Liability and Blame (Boulder, CO: Westview, 1995) at 15 Google Scholar. See also Lafave, Wayne R., Criminal Law (St. Paul, MN: Thomson/West Group, 4th ed., 2003) at 582 Google Scholar. For a detailed survey of the codified law of attempts in the U.S. at the state level see Batey, Robert, “Paul Robinson’s Criminal Law” (1998) 73 Notre Dame L. Rev. 781 at 794 and n. 121Google Scholar.

9. The attempt provision at sec. 56 of the Italian penal code prohibits the performance of “acts aptly directed in an unequivocal manner towards commission of a crime” (“atti idonei diretti in modo non equivoco a commettere un delitto“). Codice Penale, sec. 56 (Italy). See The Italian Penal Code, American Series of Foreign Penal Codes, vol. 23, trans. by Wise, Edward M. (Littleton, CO: Rothman, 1978)Google Scholar. Some Italian legal scholars, however, contend that a proper reading of sec. 56 does not broaden the scope of attempt liability to preparatory conduct. See Pagliaro, Antonio, Principi di Diritto Penale 508 at 513-14 (Milano: Giuffré, 4th ed., 1993)Google Scholar; Marinucci, Giorgio & Dolcini, Emilio, Corso di Diritto Penale, vol. 1 (Milano: Giuffré, 2nd ed., 1995) at 448–49 Google Scholar.

10. Robinson, Paul H., Criminal Law (New York: Aspen, 1997) at 625 Google Scholar. Phrases such as commencing to commit the offence’, ‘launching into the commission of the offence’ and ‘crossing the Rubicon’, should henceforth be taken to denote this objectivist version of an attempt.

11. See infra notes 76-80 and accompanying text below.

12. See generally Husak, Douglas, “The Nature and Justifiability of Nonconsummate Offenses” (1995) 37 Ariz. L. R. 151 Google Scholar.

13. See generally Williams, Glanville, “Police Control of Intending Criminals” (1955) 66 Crim. L. R. 136 Google Scholar; Bein, Dan, “Preparatory Offences” (1993) 27 Israel L. Rev. 185 at 201-02CrossRefGoogle Scholar; Lafave, supra note 8 at 532.

14. See generally Baum Levenbook, Barbara, “Prohibiting Attempts and Preparations” (1980) 49 UMKC L. Rev. 41 at 59-63Google Scholar; Ashworth, Andrew, “Defining Criminal Offences Without Harm” in Smith, Peter, ed., Essays in Honour of J.C. Smith (London: Butterworths, 1987) 7 at 16-17Google Scholar; Ashworth, Andrew, “Criminal Attempts and the Role of Resulting Harm Under the Code, and in the Common Law” (1988) 19 Rutgers L. J. 725 at 743Google Scholar, 750-51 [Ashworth, “Criminal Attempts and the Role of Resulting Harm”].

15. See generally Levenbook, ibid. at 60; Morris, Herbert, “Punishment for Thoughts” in On Guilt and Innocence at 23–24 (Berkeley: University of California Press, 1976)Google Scholar; Tsen Lee, Evan, “Cancelling Crime” (1997) 30 Conn. L. Rev. 117 at 143-45Google Scholar.

16. Cf. Bratman, Michael E., Intention, Plans and Practical Reason (Cambridge, MA: Harvard University Press, 1987) at 28–30 Google Scholar.

17. Cf. Williams, Glanville, Textbook of Criminal Law (London: Stevens, 1978) at 379–80 Google Scholar.

18. Cf. Moore, Michael S., Act and Crime (Oxford: Oxford University Press, 1993) at 137–49 Google Scholar; Moore, Michael S., “Prima Facie Moral Culpability” (1996) 76 Boston U.L. Rev. 319 at 332-23Google Scholar; Bratman, supra note 16 at 32.

19. Cf. Bratman, ibid. at 30-32.

20. Larry Alexander and Kimberly Kessler argue that insofar as an actor who performs acts of preparation knows that he can still renounce his criminal purpose—regardless of the substance and scope of the acts performed—”the lines between intending, on the one hand and fantasizing, wishing, desiring, and wanting, on the other, even if philosophically clear, are quite difficult to draw as a practical matter, even for the actor himself.” Alexander, Larry & Kessler, Kimberly, “Mens Rea and Inchoate Crimes” (1997) 87 J. Crim. L. & Criminology 1138 at 1172CrossRefGoogle Scholar. But as explained in the text above, an actor can distinguish intentions from wishes and fantasies by the extent to which he clarifies to himself the specifics of the criminal project and plans to put it into action. Furthermore, when the actor actually takes the first steps to implement the plan by performing acts of preparation, the transition in his mind from wishes and fantasies to genuine intentions is borne out in reality.

21. William Blackstone, Commentaries *14 quoted in Ashworth, “Criminal Attempts and the Role of Resulting Harm”, supra note 14 at 740.

22. See Duff, R.A., Criminal Attempts (Oxford: Oxford University Press, 1996) at 152–53 Google Scholar; Ashworth, ibid.

23. Cf. Bratman, Michael E., Faces of Intention: Selected Essays on Intention and Agency (New York: Cambridge University Press, 1999) at 72–73 CrossRefGoogle Scholar.

24. Some philosophers have hypothetically considered the prospect of science enabling decision-makers to predict with certainty that an actor intent on committing a crime will carry through to the point of consummation and inquired whether, under such conditions, it would be morally justified to impose in advance the full amount of punishment at the moment he resolves to pursue the criminal project. See New, Christopher, “Time and Punishment” (1992) 52 Analysis 35 CrossRefGoogle Scholar; Smilansky, Saul, “The Time to Punish” (1994) 54 Analysis 50 CrossRefGoogle Scholar; New, Christopher, “Punishing Times: Reply to Smilansky” (1995) 55 Analysis 60 CrossRefGoogle Scholar. See also Statman, Daniel, “The Time to Punish and the Problem of Moral Luck” (1997) 14 J. Applied Phil. 129 at 133CrossRefGoogle Scholar. Supporters of pre-punishment contend that it merely entails a temporal shift backwards. Only epistemic limitations, they argue, preclude punishment of a future offender before he actually commits the crime—not deontological principles of morality. For punishment remains deserved and proportionate to the offence; it just lacks a ‘backward-looking’ character. Given the certain prediction that the actor will not stop his criminal undertaking, they reason, no moral problems arise in the end for he deserves the punishment suffered. Opponents of pre-punishment rightly argue that respect for the moral personality of the prospective offender demands deferral of punishment because of the morally significant possibility of innocence halfway pursuant to a renunciation. In this respect, it should be emphasised that a justificatory account of punishment based on desert proceeds on the basis of a conception of the individual as an autonomous agent who possesses the capacity to control his actions and refrain from engaging in unlawful conduct. See Scheid, Don “Constructing a Theory of Punishment, Desert, and the Distribution of Punishments” (1997) 10 Can. J. L. & Juris. 441 at 463CrossRefGoogle Scholar. The future conduct of an autonomous agent cannot be made subject to predictable laws of necessity like natural events in the world. As Sanford Kadish put it: “[E]very volitional actor is a wild card.” Kadish, Sanford H., “Complicity, Cause and Blame: A Study in the Interpretation of Doctrine” (1985) 73 Cal. L. Rev. 324 at 360CrossRefGoogle Scholar. See also Crocker, Lawrence, “Justice in Criminal Liability: Decriminalizing Harmless Attempts” (1992) 53 Ohio St. L. J. 1057 at 1086Google Scholar. Since an autonomous actor can only be justifiably held responsible where his conduct was not fully compelled pre-punishment not only raises epistemic issues but moral objections as well. For the actor’s decision to complete the commission of the offence must take place in due time to justify (full) punishment for the consummated offence.

25. See discussion on moral luck below at section D.

26. See Duff, supra note 22 at 188-92; Bratman, supra note 23 at 173. On the relationship between wrongdoing and criminal character traits, see infra notes 64 at 69.

27. Cf. Bratman, Michael E., “Reflection, Planning, and Temporally Extended Agency” (2000) 109 Phil. Rev. 35 at 46-51CrossRefGoogle Scholar.

28. See generally Gur-Arye, Miriam, Actio in Libera in Causa (Jerusalem: Harry Sacher Institute for Legislative Research and Comparative Law, 1984)Google Scholar; Robinson, Paul H., “Causing the Conditions of One’s Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine” (1985) 71 Va. L. Rev. 1 CrossRefGoogle Scholar.

29. For example, an individual knows that his female neighbour arrives home late at night from her job as a waitress in a bar. One evening, he decides to drink heavily in order to neutralise his inhibitory restraints and muster up the nerve to sexually assault her when she comes home.

30. Alcoholic automatism, even if voluntarily induced was recognised as a defence by the Supreme Court of Canada in R. v. Daviault, [1994] 3 S.C.R. 63. Parliament responded by adding sec. 33.1 to the Canadian Criminal Code, rendering the defence of involuntariness unavailable in cases of criminal conduct involving violence or the threat of violence. For critical scientific analysis of the possibility of alcoholic automatism see Wilkinson, Joseph S., “The Possibility of Alcoholic Automatism: Some Empirical Evidence” (1997) 2 Can. Crim. L. R. 217 Google Scholar.

31. See Gur-Arye, supra note 28 at 32. Some German criminal law theorists support this viewpoint; others oppose it. Even though the actor puts himself in an uncontrollable state, critics argue, attempt liability cannot attach, for he has yet to immediately commence the commission of the offence. Indeed, in some cases, the level of proximity and endangerment required to justify attempt liability may be lacking at the moment of intoxication, such as where tools (e.g., a weapon) required to cause the harm have yet to be obtained. (However, it is reasonable to assume that in cases where the actor intoxicates himself purposefully, he will usually take care to attend to such matters beforehand.) See Eser, Albin, § 22 in Schönke/Schröder, Strafgesetzbuch: Kommentar (München: Beck, 26th ed., 2001) 411 Google Scholar; Herrmann, Joachim, “Causing the Conditions of One’s Own Defense: The Multi-Faceted Approach of German Law” (1986) B.Y.U. L. Rev. 746 at 765 Google Scholar.

32. The analogy in the text above concerning the actio in libera in causa doctrine only extends to cases where the actor enters a state whereby he completely loses control of his conductat the preparatory stage. It does not extend to cases where the transition from a state of control to one of complete non-control takes place gradually, with the actor still retaining (some) control over his conduct and the surrounding circumstances after he commences to commit the offence. Thus, the aforementioned analogy would be inapposite if the actor were to purposefully set in motion a train of events leading to the creation of the conditions of the defence of self-defence, duress or necessity. For as long as the actor is not immediately subject to a substantial threat of harm, he has the capacity to disengage. Furthermore, his capacity to cope with the Pressure of giving in to the threat is relatively enhanced by the lack of an element of surprise, since the whole operation was orchestrated by him from the outset.

33. See Duff, supra note 22 at 189-90, 316, 386-93. See also Duff, R.A., “Criminalizing Endangerment” in Duff, R.A. & Green, Stuart P., eds., Defining Crimes: Essays on the Special Part of the Criminal Law (Oxford: Oxford University Press, 2005) 50 at 63CrossRefGoogle Scholar. Douglas Husak has briefly taken issue with Duff’s argumentation on this point, contending that there is no basis in moral philosophy for the act requirement in the criminal law. See Husak, Douglas, “Attempts and the Philosophical Foundations of Criminal Liability” (1997) 8 Crim. L. F. 293 at 303-09CrossRefGoogle Scholar.

34. On the need to prohibit preparatory actions separately from attempts, so as not to compromise the principle of rational labelling see Horder, Jeremy, “Crimes of Ulterior Intent” in Simester, Andrew & Smith, A.T.H., eds., Harm and Culpability (Oxford: Oxford University Press, 1996) 153 at 161CrossRefGoogle Scholar.

35. Duff, supra note 22 at 391. Duff does not hesitate to spell out the “radical implications” of his thesis: that one should reject, as a matter of principle, a general law of attempts which extends to preparatory actions and specific inchoate offences such as conspiracy, possession of drugs with intent to supply or possession of firearms with intent to endanger life. Ibid.

36. A similar claim from the principle of individual autonomy is made by Lawrence Crocker, although he does not rule out preventive police intervention, as opposed to punishment, in cases of preparatory conduct. See Crocker, supra note 24 at 1076-77, 1081-83.

37. Duff, supra note 22 at 388.

38. Duff, ibid. 392.

39. Ibid.

40. The communicative theory as originally elaborated in Trials and Punishment is invoked by Duff as the principled basis for his rejection of preparatory offences. See Duff, supra note 22 at 189-90, 388. There is some inconsistency, however, in Duff’s writings as to whether his communicative theory of punishment necessarily entails such a principled refusal to criminalise preparatory conduct. In Trials and Punishment, Duff rules out preventive detention because it violates individual autonomy, but finds no fault with preparatory offences. See Duff, R.A., Trials and Punishment (Cambridge: Cambridge University Press, 1986) 176 Google Scholar. Reasons for the change in outlook in Criminal Attempts are not offered.

41. See Duff, Trials and Punishment, ibid. 82-98. See also Duff, R.A., “Inclusion and Exclusion: Citizens, Subjects and Outlaws” (1998) 51 Curr. Leg. Prob. 241 at 250-51CrossRefGoogle Scholar.

42. See Duff, ibid. at 91; Duff, R.A., Punishment, Communication and Community (Oxford: Oxford University Press, 2001) at 56–66 Google Scholar.

43. Duff explicitly states that his account is “retributivist”. See Duff, ibid. at 30. See also Duff, R.A., “Crime, Prohibition, and Punishment” (2002) 19 J. Applied Phil. 97 CrossRefGoogle Scholar. Though punishment is assigned the forward-looking goal of persuading offenders to undertake moral reform, the relation between punishment and its goal is internal, rather than contingent or instrumental. The means of punishment are conditioned by the very purpose of the communicative enterprise. Only a respectful punitive response which is proportionate to the severity of the wrongdoing agrees with the theory; any other sort of reaction is simply incoherent. Furthermore, the efficacy of the punitive response in achieving the goal of moral reform is not determinative: the sole attempt to engage in dialogue is sufficient, even if it is virtually sure that the attempt will fail. See Duff, R.A., “Penal Communications” (1996) 20 Crime and Justice: A Review of Research 1 CrossRefGoogle Scholar at 47.

The question of whether Duff’s account is correctly classified as retributivist or consequentialist has been a matter of controversy in the literature. See von Hirsch, Andrew, “Proportionality in the Philosophy of Punishment: From “Why Punish” to “How Much?”“ (1990) 1 Crim.L. F. 259 at 273-74CrossRefGoogle Scholar; Matravers, Matt, Justice and Punishment (Oxford: Oxford University Press, 2000) at 250 CrossRefGoogle Scholar; Zaibert, Leo, “Punishment, Liberalism and Communitarianism” (2002) 6 Buff. Crim. L. Rev. 673 at 683CrossRefGoogle Scholar; Primoratz, Igor, “Punishment as Language” (1989) 64 Philosophy 187 CrossRefGoogle Scholar.

44. Cf. Bratman, Intention, Plans, and Practical Reason, supra note 16 at 107-10; Morse, Stephen, “Reasons, Results and Criminal Responsibility”(2004) U Ill. L. Rev. 363 at 389 Google Scholar; Williams, Glanville, Textbook of Criminal Law (London: Stevens, 1978) at 379–80 Google Scholar.

45. Bratman, ibid.; Bratman, Faces of Intention, supra note 23 at 54-56.

46. Duff, “Penal Communications”, supra note 43 at 48.

47. Ibid.

48. Cf. Bratman, Faces of Intention, supra note 23 at 60. Larry Alexander and Kimberly Kessler disregard this tension by proposing to eliminate liability for incomplete ‘substantial step’ attempts. Although they acknowledge that preparatory actions increase the risk of harm in that the actor cannot carry out the targeted offence without them, they argue that insofar as the actor is always free to discontinue his enterprise, his conduct as he progresses along the criminal pathway is not culpable until he truly relinquishes control: “If the actus reus of an incomplete attempt is not itself dangerous then defendant’s committing the actus reus cannot be considered a culpable act. The reason is that for an act to be culpable, the act must appear to defendant to increase risks to others in a way that is not dependent on defendant’s further choices. In other words, defendant cannot view his own future choices as matters subject to his prediction. Indeed so long as defendant views himself as having control over any future choices to create risks that will then be beyond his control, it is doubtful that even he, much less the law, can clearly distinguish in terms of risks already present between what he intends on the one hand and his mere wishes or fantasies on the other.” Ibid. at 1169 (emphasis in original). See also Tsen Lee, supra note 15 at 117.

49. Some jurisdictions, including Canada, have enacted statutes empowering courts to impose moderately intrusive preventive measures on an individual, even in the absence of criminal conduct, where there is a likelihood of harmful conduct on his part. Specifically, these judicial powers appear in legislation intended to protect against spousal abuse, stalking, sexual misconduct toward children, physical violence, organised crime and terrorism. Moderate restrictions on movements, contacts with specified individuals, and access to designated materials for a limited time-period may be judicially authorised—without depriving the actor of the ability to lead a reasonably normal life. In Canada, see Canadian Criminal Code, sec. 810-810.2. On judicial restraining orders in Canadian law see generally Neumann, Peter M., “Peace Bonds: Preventive Justice? Or Preventing Justice?” (1994) 3 Dalhousie J. Leg. St. 171 Google Scholar; Poyner, Erin, “Drawing Boundaries: Monitoring Preventive Justice” (1997) 3 Appeal 6 Google Scholar; Grant, Isabel, “Legislating Public Safety: The Business of Risk” (1999) 3 Can. Crim. L. Rev. 177 at 201-03, 234-39Google Scholar; Orr, David, “Sec. 810 Peace Bond Applications in Newfoundland” (2002) 46 Crim. L. Q. 391 Google Scholar. In the United Kingdom, see Sexual Offences Act 2003, sec. 123-129. See also Cobley, Cathy, “The Legislative Framework” in Matravers, Amanda, ed., Sex Offenders in the Community: Managing and Reducing the Risks 51 at 69 (Cullompton, Devon: Willan, 2003)Google Scholar; Shute, Stephen, “The Sexual Offences Act 2003 (4) New Civil Preventative Orders: Sexual Offences Prevention Orders, Foreign Travel Orders, Risk of Sexual Harm Orders” (2004) Crim. L. Rev. 417 at 429–31 Google Scholar.

50. Cf. Kremnitzer, Mordechai, “The Punishability of Impossible Attempts” (1984) 19 Israel L. Rev. 340 at 347Google Scholar; Ashworth, “Criminal Attempts and the Role of Resulting Harm”, supra note 14 at 734-35.

51. See discussion on moral luck at section D.

52. Batey, Robert, “Minority Report and the Law of Attempt” (2004) 1 Ohio St. J. Crim. L. 689 at 696Google Scholar.

53. See generally Duff, Punishment, Communication and Community, supra note 42 at 53-68. Cf. Kremnitzer, Mordechai, “Constitutional Principles and Criminal Law” (1993) 27 Israel. L. Rev. 85 at 85-86Google Scholar; Kitai, Rinat, “Presuming Innocence” (2002) 55 Okla. L. Rev. 257 at 282-83Google Scholar.

54. Duff, supra note 22 at 390.

55. ibid. at 386.

56. This matter is attended to at length in Part II. It will be argued that the performance of certain preparatory courses of conduct, even though they do not yet amount to an attempt, may justifiably trigger the machinery of the criminal law depending on such factors as the operational significance of the conduct concerned the extent to which the actor is equipped and the structure and magnitude of organizational support.

57. It is customary to distinguish between two types of renunciation of criminal purpose. On the one hand, there are cases in which the abandonment of the criminal endeavour occurs pursuant to a genuine change of heart triggered by the actor’s recognition of the wrongful nature of the undertaking. On the other hand there are cases in which the criminal undertaking is discontinued on account of extraneous forces, such as the increased probability of detection or the inadequacy of the instruments needed to complete the crime. See generally Fletcher, supra note 1 at 181-84.

58. Cf. Husak, supra note 12 at 174 (Endorsing a “persistence” requirement for the criminalisation of nonconsummate offences, including acts preparatory to the commission of a crime).

59. See Scheid, supra note 24 at 459.

60. The seminal philosophical texts on moral luck are by Bernard Williams and Thomas Nagel. See Williams, Bernard, Moral Luck: Philosophical Papers 1973-1980 (Cambridge: Cambridge University Press, 1981) at 20–39 CrossRefGoogle Scholar; Nagel, Thomas, Mortal Questions (Cambridge: Cambridge University Press, 1979) at 24–38 Google Scholar. For a collection of articles on the subject see Statman, Daniel, ed., Moral Luck (Albany: SUNY Press, 1993)Google Scholar.

61. See “Introduction” in Statman, ibid. at 2-3; Feinberg, Joel, “Problematic Responsibility in Law and Morals” in Doing and Deserving (Princeton, NJ: Princeton University Press, 1970) 25 at 31-32Google Scholar.

62. Empirical studies support the proposition that this intuitive judgment is widely shared. See Robinson & Darley, supra note 8 at 17.

63. This notion is discussed at length in Duff, supra note 22 at 147-72.

64. This notion is discussed at length in Duff, supra note 22 at 173-92. In earlier writings, Duff argued that a criminal character amounts to a necessary and sufficient condition for criminal liability; but that, as a conceptual matter, the ‘bad’ character traits targeted by the criminal law are constituted—rather than merely evinced—by the very performance of the criminally wrongful act. See Duff, R.A., “Choice, Character, and Criminal Liability” (1993) 12 L. & Phil. 345 at 371-80CrossRefGoogle Scholar. Critics countered, however, that a criminal character trait can surely exist independently of conduct; and that, even if this is not the case, prior criminal conduct may still suffice to perpetually punish an actor for enduring criminal character traits. See Moore, Michael, Placing Blame (Oxford: Oxford University Press, 1997) at 586–88 Google Scholar; Norrie, Allan, Punishment, Responsibility and Justice (Oxford: Oxford University Press, 2000) at 129–30 CrossRefGoogle Scholar; Wilson, William, Central Issues in Criminal Theory (Oxford: Hart, 2002) at 346–47 Google Scholar. Recently, Duff has adopted a more nuanced stance, suggesting that criminal character traits are partially manifested and partially constituted by criminal conduct. See Duff, R.A., “Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?” (2002) 6 Buff. Cr. L. Rev. 147 at 157Google Scholar. Duff has also insisted upon the need to distinguish between “the character of the agent and the character of her actions” so as “to set liberal limits on the extent to which the criminal law should be allowed to inquire into our lives.” Ibid. 174.

65. Cf. Statman, “Introduction”, supra note 60 at 19-20; Nicholas Rescher, “Moral Luck” in Statman, supra note 60 at 141, 156.

66. See Moore, Placing Blame, supra note 64 at 242-43.

67. Nagel, supra note 60 at 28.

68. Ibid.

69. Choice or character may constitute a defining condition of moral responsibility based on principles of desert. See Scheid supra note 24 at 463. Consequently, circumstances negating an inference from (unlawful) conduct to choice or character traits may undermine the desert basis for liability. For discussion of whether choice or character underpins excuse defences, see e.g. Duff, “Choice, Character, and Criminal Liability”, supra note 64; Finkelstein, Claire, “Excuses and Dispositions” (2002) 6 Buff. Crim. L. Rev. 317 at 319, 322-27CrossRefGoogle Scholar; Brandt, Richard B., “A Motivational Theory of Excuses in the Criminal Law” in (1985) Nomos XXVII: Criminal Justice 165 Google Scholar; Bayles, Michael D., “Character, Purpose and Criminal Responsibility” (1982) 1 L. & Phil. 5 CrossRefGoogle Scholar; Gardner, John, “The Gist of Excuses” (1998) 1 Buff. Crim. L. Rev. 575 CrossRefGoogle Scholar; Todros, Victor, “The Characters of Excuse” (2001) 21 Oxford J. Legal Stud. 517 Google Scholar; Wilson, supra note 64 at 332-61; Horder, Jeremy, Excusing Crime at 118–33 (Oxford: Oxford University Press, 2004)Google Scholar; Moore, Placing Blame, supra note 64 at 548-92. The fact that excuses may be primarily determined by reference to the choice or character traits of the actor does not entail that the essence of criminal wrongdoing is wholly constituted by either one of this elements. See Fletcher, George P., Rethinking Criminal Law (Boston, MA: Little, Brown, 1978) at 469–72 Google Scholar. Elements of wrongfulness—notably concrete danger or harm to a legal interest—may be needed beyond mere conduct externalizing the actor’s choice or character to ensure a minimal basis of wrongdoing which grounds the actor’s duty to suffer punishment.

70. See supra notes 21-27 and accompanying text above.

71. See Husak, Douglas, “Crimes Outside the Core” (2005) 39 Tulsa L. J. 755 at 763-64Google Scholar. Constitutional law values related to the protection of individual conscience and privacy from state intrusion can be invoked however, to explain the evidentiary requirement of external conduct. See Fletcher, Rethinking Criminal Law, supra note 69 at 800-01; Norrie, supra note 64 at 131. See also Duff, “Virtue, Vice, and Criminal Liability: Do We Want an Aristotelian Criminal Law?”, supra note 64 at 174.

72. See Wilson, supra note 64 at 350-52. Furthermore, it is a matter for debate whether a moral justification can be formulated for imposing liability and punishment based on character in the absence of criminal conduct. Is it fair and just to hold people criminally responsible solely for the settled aspects of their character, a facet of their being which is not the direct product of their choices, and over which they have little, if any, control? See Moore, Placing Blame, supra note 64 at 584-86; Wilson, ibid. at 351-52; Norrie, ibid., 127-29.

73. Cf. Dan-Cohen, Meir, “Responsibility and the Boundaries of the Self” (1992) 105 Harv. L. Rev. 959 at 983CrossRefGoogle Scholar.

74. Moore, Placing Blame, supra note 64 at 213.

75. Ibid. at 215.

76. Ibid at 213-15. The overwhelming majority of writings on moral luck in the criminal law literature have concerned the problem of ‘result-luck’. Most frequently, criminal law scholars attend to this problem in discussing ‘last-act’ attempts. See, e.g., Burkhardt, Bjorn, “Is There a Rational Justification for Punishing an Accomplished Crime More Severely Than an Attempted Crime?” (1986) B.Y.U. L. Rev. 553 Google Scholar; Kremnitzer, Mordechai, “Is There a Rational Justification for Punishing an Accomplished Crime More Severely Than an Attempted Crime? A Comment on Prof. Dr. Bjorn Burkhardt’s Paper” (1990) 4 B.Y.U. J. Pub. L. 81 Google Scholar; Ashworth, “Criminal Attempts and the Role of Resulting Harm”, supra note 14 at 741-44; Shachar, Yoram, “The Fortuitous Gap in Law and Morality” (1987) 6 Crim. Just. Ethics 12 CrossRefGoogle Scholar; Jareborg, Nils, “Criminal Attempts and Moral Luck” (1993) 27 Israel L. R. 213 CrossRefGoogle Scholar; Moore, ibid. at 191-247. Very little attention has been given in the criminal law literature to the question of moral luck as applied to preparatory conduct. See, however, Kessler, Kimberly, “The Role of Luck in the Criminal Law” (1994) 142 U. Pa. L. Rev. 2183 at 2212-13CrossRefGoogle Scholar; Morse, supra note 44 at 387-89; Moore, ibid. at 237-39.

77. Cf. Duff, supra note 22 at 328-31; Rescher, supra note 65 at 162 (“From the moral point of view, the crucial thing is to earn an E for effort … [W]hat matters from the angle of morality is what we make of the opportunities at our disposal[.]”).

78. Itzhak Kugler inquires whether the general proposition that a reckless actor’s level of blame-worthiness augments in accordance with the degree of probability that the forbidden result will occur may also apply to cases where the actor acts purposefully. Kugler, Itzhak, Direct and Oblique Intention in the Criminal Law (Aldershot, UK: Ashgate, 2002) at 90–99 Google Scholar. He examines the question in the light of such parameters as the bad character of the actor; the harm done to the dignity of the victim or the moral integrity of the actor; and the strength of the causal contribution to the forbidden result. For the most part, Kugler is reluctant to attribute any moral significance to degrees of probability because “[i]n cases of direct intention the actor acts in order to cause the result, he wants it to ensue, he commits himself to achieving it, and if he could, he would change his plans and take a course of action with a better chance of succeeding.” Ibid. at 94 (emphasis added). The argument developed in the text above consists precisely in putting Kugler’s aforementioned assumption to the test and thus to calibrate moral blameworthiness by the extent to which an actor actually makes use of his capacity to increase his chances of success. Kugler’s analysis is not necessarily hostile to such an approach. Indeed, he suggests that it is plausible to consider an actor who chooses to act with low chances of success as less blameworthy than one who chooses to act with higher chances of success. Ibid. at 96-97. See also Duff, supra note 22 at 120-21; Morse, supra note 44 at 388 (conceding in passim that there is lesser culpability and room for mitigation where an unsuccessful actor acts with knowledge of his lack of skill, as the implementation of his unlawful endeavour generates only a minimal risk of harm).

79. Some criminal law theorists writing on the subject of attempt recognise that the formation of the intention to commit the crime does not exhaust the culpability of the actor. However, they only note cursorily the presence of an additional element of ‘trying’. See Moore, Placing Blame, supra note 64 at 238; Ashworth, “Criminal Attempts and the Role of Resulting Harm”, supra note 14 at 743, 750, 754; Wilson, supra note 64 at 236. Some authors do not even accept this much. Stephen Morse, for instance, asserts that “[I]t is not clear that wholeheartedness affects desert more than trivially, if at all.” Morse, supra note 44 at 393. Nils Jareborg suggests that an actor’s determination to succeed and the sophistication of his planning do not bear upon his ‘inner’ guilt but rather solely upon the ‘external’ risk of harm. Jareborg, supra note 76 at 224-25.

80. See Rescher, supra note 65 at 149. But see Morse, supra note 44 at 388. It may perhaps seem odd to contend that an actor should receive moral credit for proceeding in a careless or unsophisticated manner, expending little energy or showing hardly any determination to succeed. Cf. Jareborg, ibid. at 225. But the moral assessment conducted in this respect is a relative one, based on the extent to which the actor makes use of his capacities and opportunities to better his chances of carrying through. Cf. Duff, supra note 22 at 330.

81. See supra notes 2-6.

82. For analysis of the merits and shortcomings of formulating criminal law rules with general, categorical standards based on empirical assumptions regarding the presence of a given set of circumstances in the majority of cases, see generally Kugler, supra note 78 at 144-46.

83. See Duff, supra note 22 at 343.

84. See Horder, supra note 34 at 168; Ashworth, Defining Criminal Offences Without Harm, supra note 14 at 19.

85. See supra note 56 and accompanying text above.

86. Cf. Markus Dirk Dubber, “The Possession Paradigm: The Special Part and the Police Power Model of the Criminal Process” in R.A. Duff & Stuart Green, eds., supra note 33 at 100. Of course, unlike most abstract endangerment offences (e.g., drunk-driving), a purpose to subsequently engage in the commission of the substantial offence typically constitutes a liability prerequisite for preparatory offences.

87. Take for example sec. 29G of the English Racial and Religious Hatred Act 2006 which prohibits the possession of inflammatory material with a view to displaying it and stirring up religious hatred. There is no differentiation, on the normative plane, between a case where the actor scans the inflammatory material on his computer, planning to make copies in a month, so as to hand them out at the next public meeting of his fanatic religious group; and a case where stacks of inflammatory pamphlets are discovered at the headquarters of a fanatic religious movement ready for distribution at a huge rally planned for the next day. Despite the difference in gravity between the two preparatory courses of conduct, as influenced by such factors as the proximity to the substantive harm, the extent to which the actors are equipped and the determination manifested toward the successful completion of the criminal project, they are both included within the same legal category; for unlike the general doctrine of attempt, no consideration is given to the specific plan of the offender in assessing the level of social harm in general and in determining the liability prerequisites in particular.

88. Another intricate issue pertaining to the criminalization of preparatory conduct which cannot be adequately dealt with here is that of ‘double inchoate liability’. Although specific preparatory offences prohibit conduct performed in anticipation of committing a substantial offence, technically, general inchoate liability for an attempt can also be incurred. Double inchoate liability thus raises the possibility of regression to remote preparatory acts, and as such, risks defeating the legislative purpose behind the carefully crafted definition of the preparatory conduct criminalized. If one considers specific preparatory offences as an exception to the principle that preparatory acts should remain beyond the reach of the criminal law, double inchoate constructs appear objectionable in that they raise the spectre of prosecutorial efforts to circumvent the proximity requirements of these offences. In R. v. Déry, 2006 SCC 53, the Supreme Court of Canada ruled that an attempt to conspire to commit a substantive offence is not an offence under Canadian law. The Court dismissed the argument that “provisions governing inchoate liability can be stacked one upon the other, like building blocks” as “seductive in appearance but unsound in principle.” Ibid. at pars 40-41. For analysis of the validity of double inchoate constructs and approaches to confine the limits of judicial discretion to enforce such combinations see generally Ira Robbins, P., “Double Inchoate Crimes” (1989) 26 Harv. J. Legis. 1 Google Scholar; Bein, supra note 13 at 202-05.

89. For in-depth analysis of this issue see Ohana, Daniel, Acts Preparatory to the Commission of a Crime, thesis submitted for the degree of Doctor of Laws (2005)Google Scholar [unpublished, copy with author].

90. Hall, Jerome, General Principles of Criminal Law at 103 (Indianapolis, ID: Bobbs-Merrill, 1947)Google Scholar.

91. Cf. Wilson, supra note 64 at 241-42.

92. See Sexual Offences Act 2003, sec. 15. See generally Gillespie, Alisdair A., “Indecent Images, Grooming and the Law” (2006) Crim. L. R. 412 Google Scholar; Gillespie, Alisdair A., “Children, Chatrooms and the Law” (2001) Crim. L. R. 435 Google Scholar; Cobley, supra note 49 at 65-69.

93. See Canadian Criminal Code, sec. 212 (1)(e)-(g).

94. See Canadian Criminal Code, sec. 435. See also Código Penal, sec. 357; StGB, sec. 265.

95. See Canadian Criminal Code, sec. 342.1 (1)(d). The English crime of gaining unauthorised access to a computer with the further intent of committing an offence is also noteworthy in this respect. Computer Misuse Act 1990, ch. 18, sec. 2. See generally Wasik, Martin, Crime and the Computer (Oxford: Oxford University Press, 1991) at 69–85 Google Scholar.

96. Sexual Offences Act 2003, sec. 14.

97. Canadian Criminal Code, sec. 351(2).

98. Criminal Law Act 1967, ch. 58, sec. 4(1).

99. Model Penal Code, supra note 8, sec. 5.01(2) (a),(c), (g).

100. Cf. Hall, Jerome, General Principles of Criminal Law (Indianapolis, IN: Bobbs-Merrill, 2nd ed., 1960) at 584–85 Google Scholar.

101. See e.g. Canadian Criminal Code, sec. 458.

102. See e.g. Canadian Criminal Code, sec. 342.01.

103. See e.g. Canadian Criminal Code, sec. 409.

104. Cf. Dubber, supra note 86 at 105; Fletcher, supra note 1 at 176. This is not to say that provision should not be made to authorize the police to seize these tools and the courts to make a forfeiture order. The imposition of criminal liability and punishment, however, should be made conditional upon proof of an intention to put these tools to use in the commission of a crime. See e.g. Canadian Criminal Code, sec. 320-320.1 (seizure and forfeiture of hate propaganda material permitted irrespective of future intent to disseminate).

105. Theft Act 1968, ch. 60, sec. 25(1).

106. Criminal Damage Act 1971, ch. 48 sec. 3(a).

107. Canadian Criminal Code, sec. 436.1.

108. Horder, supra note 34 at 169.

109. Canadian Criminal Code, sec. 353.

110. Canadian Criminal Code, sec. 191. See also Code Pénal, sec. 226-3.

111. Canadian Criminal Code C, sec. 326.

112. See supra note 80 and accompanying text above.

113. Canadian Criminal Code, sec. 46(1)(e). The offence prohibits the mere formation of an intention to commit the secret service crime followed by an overt act. The German penal code makes it an offence not only to engage in secret service for a foreign power but also to declare one’s willingness to engage in such activity to one of its intermediaries. StGB, sec. 98, 99. English Law prohibits acts preparatory to the commission of an offence under the Official Secrets Act 1911, 1 & 2 Geo. 5, ch. 28. Official Secrets Act 1920, 10 & 11, Geo. 5, ch. 75. In R. v. Bingham, 57 Cr. App. R. 439, the Criminal Court of Appeal convicted the wife of a lieutenant in the Royal Navy who contacted the Russian Embassy with a view to offering, on behalf of her husband, the communication of secret information in exchange for money, even though she only intended to supply innocuous information, because she was aware of the possibility that she might also wind up giving prejudicial information in the end.

114. Canadian Criminal Code, sec. 46(1)(b). Under sec. 46(1)(d) of the code, the formation of an intention to commit a crime of high treason manifested by an overt act constitutes an act of treason. But see infra note 122 and accompanying text pertaining to the excessively wide scope of the overt act requirement. The Austrian penal code expressly prohibits the preparation of a crime of high treason in conjunction with a foreign power. Strafgesetzbuch (Austria), sec. 244(2).

115. Canadian Criminal Code, sec. 467.11.

116. This rationale appears in the literature concerning the crime of conspiracy. See Note, , “Developments in the Law: Criminal Conspiracy” (1959) 72 Harv. L. Rev. 921 at 925-26Google Scholar; Dennis, Ian, “The Rationale of Criminal Conspiracy” (1977) 93 L.Q.R. 39 at 51-52Google Scholar. It has been objected however that, in this respect, the scope of the crime of conspiracy is too wide and extends to cases which are not sufficiently serious to trigger the concerns provoked by group criminal activity. See Johnson, Philip E., “The Unnecessary Crime of Conspiracy” (1973) 61 Cal. L. Rev. 1137 at 1145CrossRefGoogle Scholar (“[O]ne does not have to be involved in any continuing criminal activity to be a conspirator. Two boys planning to joyride in an automobile are just as much conspirators as two organized crime chieftains managing a large scale gambling operation.”) The definition of a “criminal organization” in the Canadian Criminal Code imposes somewhat more stringent conditions than the crime of conspiracy by requiring that the group be composed of at least three members and that it be directed toward the commission of serious offences. Canadian Criminal Code, sec. 467.1 (1). Nonetheless, the Canadian anti-gang law is still open to criticism as it fails to encompass such elements as “corruption, violence, sophistication, continuity, structure, discipline, ideology, multiple enterprises, involvement in legitimate enterprises and a “bonding” ritual” which typically characterize organized crime. See Stuart, Don, “Politically Expedient But Potentially Unjust Legislation against Gangs” (1997) 2 Can. Crim. L. R. 207 at 210-11Google Scholar.

117. Canadian Criminal Code, sec. 465. In R. v. Déry, the Supreme Court of Canada stated that crim-inalization of conspiracy is justified because of the “increased danger represented by a cohort of wrongdoers acting in concert.” R. v. Déry, supra note 88 at para. 44. Previously, the Court has specified that the essential elements of the crime of conspiracy are the intention to agree, the completion of the agreement, and a common design to something unlawful. United States v. Dynar [1997] 2 S.C.R. 462 at 499-502. Some U.S. jurisdictions also require an overt act in furtherance of the conspiracy. See e.g., Model Penal Code, supra note 8, sec. 5.03(5). See also Marcus Dubber, D. & Kelman, Mark G., American Criminal Law (New York: Foundation Press, 2005) at 689–91 Google Scholar.

118. American Law Institute, Model Penal Code and Commentaries, Part I, sec. 5.03, Commentary, 388 (1985).

119. See Dennis, supra note 116 at 46-47, 49; Johnson, supra note 116 at 1157-58; Goldstein, Abraham S., “Conspiracy to Defraud the United States” (1959) 68 Yale L. J. 405 at 414CrossRefGoogle Scholar.

120. See Bein, supra note 13 at 200.

121. See e.g., StGB, sec. 80 (Preparation of a war of aggression), 83 (Preparation of a high treasonous undertaking); Code Pénal, sec. 412-2 (conspiracy to commit act of violence likely to endanger the institutions of the French Republic or to injure the integrity of the national territory); sec. 421-6 (conspiracy to commit potentially lethal act of terrorism).

122. Indeed the last reported cases addressing the overt act requirement for treason date back to World War I. See Re Schaefer, 31 C.C.C. 22 (1918); Rex. v. Bleiler, 28 C.C.C. 9 (1917); Rex v. Fehr, 26 C.C.C. 245 (1916); Rex v. Snyder, 24 C.C.C. 101 (1915).

123. Terrorism Act 2006, sec. 5(2) (emphasis added).

124. See supra notes 17-20 and accompanying text above.

125. In this respect, the Swiss penal code provides an instructive model of legislative drafting. Its prohibition of acts preparatory to the commission of designated serious crimes of violence explicitly requires that concrete actions of an organizational or technical nature be taken by the actor in accordance with a plan. Code Pénal Suisse, sec. 260bis (“celui qui aura pris conformément à un plan, des dispositions concrètes d’ordre technique ou d’organisation, dont la nature et l’ampleur indiquent qu’il s’apprêtait à passer à l’exécution de l’un des actes suivants…”). See generally Schultz, Hans, “Strafbare Vorbereitungshandlungen nach StrGB Art. 260 bis und deren Abgrenzung vom Versuch” (1990) 107 Schweizerische Zeitschrift für Strafrecht 68 Google Scholar; Baumgartner, Hans, Art. 260 bis in 2 Marcel Alexander Niggli, Wiprächtiger, Hans, eds., Strafgesetzbuch: Basler Kommentar, 1503 (Basel: Helbing & Lichtenhahn, 2003)Google Scholar. The offence at sec. 80 of the German penal code targets “whoever prepares a war of aggression … in which the Federal Republic of Germany is supposed to participate[.]” Sec. 83(1), on the other hand targets “Whoever prepares a specific high treasonous undertaking[.]” (Emphasis added) StGB, sec. 80, 83. The German Penal Code, American Series of Foreign Penal Codes, vol. 32, trans. by Thaman, Stephen C. (Buffalo, NY: Hein, 2002)Google Scholar. The distinction is significant, as the specificity requirement implies that the actor must determine the goal and object targeted and roughly outline to himself the time, place and manner of proceeding. Further detail in planning the subversion of the regime and its government, however, is not necessary to trigger liability. See Kühl, Kristian & Lackner/Kühl, , Strafgesetzbuch: Kommentar, § 80, 83 (München: C.H. Beck, 25th ed., 2004) at 511–15 Google Scholar.

126. See Gross, Hyman, A Theory of Criminal Justice (Oxford: Oxford University Press, 1979) at 16 Google ScholarPubMed. The author points out the practical difficulties which make it virtually unfeasible to enforce a prohibition of immoral conduct as well as the ability of individuals to protect themselves without the help of the law.

127. Ashworth, “Defining Criminal Offences Without Harm”, supra note 14 at 17.

128. Specific cases may arise where the punishment of an actor for preparation (by way of an innocuous-looking act) is warranted from a just-deserts perspective, without there being any risk of abuse during the investigation. Consider for example, the case of an actor who engages in elaborate preparations to kidnap the daughter of a rich businessman in order to blackmail him. He carefully tracks the girl to figure out her daily schedule; and rents in advance a hotel room to be used as a hideout place. He is brought in for questioning based on information provided to the police by a good friend who was held in confidence and does not deny the charges brought against him. Should such an actor escape punishment just because his actions do not inherently betray a criminal intent?