Timeline for Can you be convicted of an attempted crime by making an omission?
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| Dec 7 at 9:33 | comment | added | Steve | @FD_bfa, I agree with alexg's answer insofar as it simply says some academics perceive an unresolved ambiguity on the point of whether an "act" (in CAA 1981) includes omission or not. The Law Commission provides opinions both ways (e.g. 8.146 and footnote 129), and the question about this ambiguity seems to be a collateral point in a larger picture of potential difficulties. We know the actus reus of murder can include omission. You are begging the very question and presuming that omissions are not currently allowed, and that CAA 1981 needs to be modified in that respect. | |
| Dec 7 at 0:20 | comment | added | FD_bfa | See the answer by @alexg which suggests that your answer is incorrect. The Law Commission's proposal for change was not taken forward and the Criminal Attempts Act 1981 was not modified to allow for omissions. | |
| Dec 6 at 16:57 | comment | added | Steve | If intentionally starving a child to death would be murder, then why would trying to starve a child to death (and being interrupted or foiled before death could ensue) not be attempted murder? (2/2) | |
| Dec 6 at 16:57 | comment | added | Steve | @FD_bfa, can you discern any policy reason why intentional omissions would be treated differently than intentional actions, for the purposes of an attempt? Attempts specifically require a mens rea of intent, so that is why the lower standard of the completed offence does not carry over to attempts. But there is no sign that attempts specifically exclude acts of omission, and it's not reasonable to suspect a distinction if there is not one known in law and no clear policy explanation why a judge might wish to make the distinction. (1/2) | |
| Dec 6 at 16:07 | comment | added | FD_bfa | As you mentioned, the requirements for the actual offence cannot be directly carried over to the attempted counterpart. For example: there must be intention for an attempt, even if the original offence allowed for the lower requirement of recklessness. So I am hesitant to believe that the rules for omissions transpose over without some further justification | |
| Dec 6 at 16:03 | comment | added | FD_bfa | Well in the aforementioned statute, an attempt is defined as: "‘an act which is more than merely preparatory to the commission of the offence". Of course, an "act" could include an omission too, but this seems to be ambiguous drafting. Especially since, as far as I can see, there is no case law on a conviction for an attempted offence on the basis of an omission. | |
| Dec 6 at 15:51 | comment | added | Steve | @FD_bfa, it could be useful if you explain more about where you think the uncertainty is? There is an offence of attempted murder. You have the case law that wilful omissions can be murder. Why do you think there could still be some uncertainty regarding attempts? | |
| Dec 6 at 14:49 | comment | added | FD_bfa | My question is specifically about attempts, not omissions. But I feel as though your answer + comments are on the law of omissions without enough care directed to the law on attempts (which requires using the Criminal Attempts Act 1981 that I mention above) and case law on attempts, not just omissions. | |
| Dec 6 at 13:38 | comment | added | Steve | There are policy reasons why the law prefers not to criminalise omissions when the proposed actions themselves would not be routinely performed by the person (partly because it poses problems of localising the criminal behaviour to specific individuals, or determining what action they ought to have taken and how quickly), but where it does find that people have an obligation to tend to something in motion to avoid harm (a train, a hue and cry, or a child's life), it has no problem criminalising omissions. Action/omission shouldn't be seen as the fundamental dividing line. (2/2) | |
| Dec 6 at 13:37 | comment | added | Steve | @FD_bfa, just thinking a bit more on the topic of "ommissions", there are in fact many areas where the law recognises that people are under duties to take action. For example, a train driver who, having set his train going for a legitimate purpose, nevertheless allows it to plough into a fatal crash, and intends to withhold his control for the purpose of causing that crash, would be guilty of murder. (1/2) | |
| Dec 6 at 9:08 | comment | added | Steve | The only issue I'm aware of with attempts seems to be the distinction between "failed attacks" and "endangerment" - but because Gibbins and Proctor were held to have wilfully attacked the child (by intentionally withholding the food they were obliged to give), not merely endangered her thoughtlessly, then there's no reason to think there is any special question about whether the law on criminal attempts applies in circumstances equivalent to Gibbins and Proctor. (2/2) | |
| Dec 6 at 9:07 | comment | added | Steve | @FD_bfa, there wouldn't be any reasoning about attempts in the Gibbins and Proctor judgment, because it was an 1818 case dealing with a completed murder. But having established that you can murder a child by starving them, then I see no reason why there cannot be an attempt to do the same by commencing starvation with the intention to harm or kill. (1/2) | |
| Dec 6 at 5:01 | comment | added | FD_bfa | There is nothing, to my knowledge, in the judgement that makes any commentary on the reasoning in your answer extending to attempted murder. If you have reason to believe it does, perhaps academic commentary or case would be a good way to support your answer. | |
| Dec 6 at 4:59 | comment | added | FD_bfa | I certainly agree that intention is required, not just recklessness. But I think your answer, in its current form, feels speculative. I am aware of the details of the Gibbins and Proctor case, but the reason why I am reluctant to apply the specifics to attempted offences is because attempted offences are treated differently to the offence itself (see: the Criminal Attempts Act 1981, for example). | |
| Dec 6 at 4:43 | history | edited | Steve | CC BY-SA 4.0 |
added 144 characters in body
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| Dec 6 at 4:37 | history | answered | Steve | CC BY-SA 4.0 |