40 Pages Posted: 1 Nov 2018
Date Written: October 1, 2018
In this paper, we first provide a definition of ‘preparatory offences’, which is not a formal category in English or German criminal law. At the most general level, preparatory offences – as we identify them – criminalise conduct perceived to carry with it the risk that, at a later time, a completed crime will be committed (sometimes involving the person who perpetrates the preparatory offence, other times not). Preparatory offences move criminal responsibility from the actual occurrence of harmful conduct (or an attempt to bring it about) back to the planning and preparation stage of a crime. We contend that the main justification for such offences is the management of the risk of completed offences (i.e. actual harm in the form of violation of legal goods protected by the criminal law). We then defend a number of constraints on the criminalisation of preparatory offences. In our view, both English and German criminal law fall short, to differing extents, of respecting these constraints. The final part of the paper deals briefly with the punishment of preparatory offences.
Keywords: Inchoate offences, attempts, conspiracy, incitement, encouraging or assisting crime
JEL Classification: K14
Suggested Citation: Suggested Citation