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bout to attempt murder and reconsiders, the man who attempts and fails to murder, and he who successfully murders are not seen in the same light by people and thus should be distinguished between in law. Further proof that ‘more than merely preparatory’ is unsatisfactory as an actus reus is evidenced in the fact that it applies to both possible and impossible attempts. Thus the interpretation of the phrase cannot mean confronting or gaining proximity to the last act as this cannot apply practically or logically to impossible situations.

Further Reforms to the Current Criminal Attempts Act 1981

The Law Commission recently released their proposals for improving the difficulties and ambiguities as discussed above. They are concerned with the pragmatic issue of the current law being too narrow in cases of preparation (as witnessed by Geddes) and would like to make the law more enveloping of all guilty parties. Their ideas involve separating the crime of attempt into two distinct offences. The first offence would be of criminal preparation and would include those acts which the defendant ‘did on the job’ while in the process of executing. The second offence would be of criminal attempt which would be more defined in terms of the last act. Both of these new offences would carry the same maximum penalty and the test of whether the conduct was last act would be left up to court as a matter of law. [19] Rogers applauds the this proposal saying that if there were two auxiliary concepts, then one offence (“preparation”) could reflect the law’s condemnation of a defendant’s commitment to offend (a concept defined in terms of the subjectivist tradition) while the other offence (“attempts”) could reflect legal condemnation of the danger the defendant has outwardly created (a concept defined in terms of the objectivist tradition). [20]

Clarkson is in staunch opposition to the proposal and elucidates this in several strong points throughout his article. Firstly he says that the creation of ‘offences of attempt’ comes too near to the ‘last act’ idea and would therefore be too narrow, making Jones wrongly decided. Secondly he holds that the offence of preparation could lead to over criminalization as it could be taken to attack preparation too early and lead to thought crimes. This would not only clog up the justice system with ever more amounts of cases but would also extend liability beyond the limits that Parliament intended. Another consideration which would add a great deal of unnecessary burden to the courts would be the fact that there is still not a clear enough distinction between the two kinds of attempt and this would cause a need for interpretive case law. Fourthly he points out that the Law Commission does not discuss the difference in liability for preparing to attempt the impossible and does not distinguish between penalties for preparing and attempting. This runs the risk of the jury opting for convicting on preparation as the distinction is not lucid and it seems to be a slightly less offensive crime. Besides being unreflective of the true crime committed, it is a case of faulty fair labeling and is inadmissible. Lastly the law is not compassionate to those who reconsider their actions. [21] Ashworth points out that the farther a person gets away from the complete crime, the less the lack of completion can be attributed to moral luck alone.

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