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I just read a different question here on Law.SE that asked something along the lines of "Would it be illegal to do XYZ? I want to do this, but I'm not sure if it's legal."

So, that seems like a completely reasonable question and I don't think anyone should be punished for it. On the other hand, I'm pretty sure that I've heard people being arrested (and convicted) for planning to do a crime. Usually it was something big like murder or terrorism or whatever. However, big or small shouldn't really be relevant, I think.

So, clearly, there is a line somewhere there between "it's acceptable to think about committing this crime" and "it's not acceptable to think about it this seriously". But what is it?

Since this is a rather generic principle, I assume that most countries will have similar rules regarding this. If that's too broad, then I'm OK with narrowing it down to European laws (I'm from Latvia).

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6 Answers 6

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Can you be punished for planning a crime and what constitutes "planning"?

The intent to commit certain classes of crimes is punishable. That being said, there is a difference between intent and a mere wish.

Intent is inferred from statements or circumstances indicating that a person's actions were (or are) devised toward knowingly committing the underlying crime. The Black's Law Dictionary defines intent as "[D]esign, resolve, or determination with which [a] person acts. [...] [M]ental action at its most advanced point [...]. It is the exercise of intelligent will, the mind being fully aware of the nature and consequences of the act which is about to be done" (brackets added).

By contrast, a wish that goes no further than fantasizing or expressing "I want to do this" usually is inconsequential from a legal standpoint. One exception to that relates to promoting offenses such as terrorism, murder, and arguably pedophilia. Even if it is proved that the person making those expressions has no propensity or intent to indulge in the criminal conduct he depicts, the expressions themselves might encourage others to do so. That encouragement makes it more difficult for a government to prevent those crimes from being committed and to identify the perpetrator(s).

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    There's also "conspiracy" if it is two or more people, and you would have a conspiracy when people act on the idea of committing a crime. Making serious plans would most likely be enough for "conspiracy".
    – gnasher729
    May 20 at 13:24
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    In many jurisdictions, including mine (UK), evidence that a crime was planned could be deemed to be an aggravating feature at the sentencing stage. May 20 at 17:28
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    @gnasher729: In the US, conspiracy charges usually require that at least one participant in the alleged conspiracy take some sort of "overt step" in furtherance of its aims. For example, if Alice and Bob agree to rob a bank, and then Alice goes out and buys a pair of ski masks, that could be considered an overt step.
    – Kevin
    May 20 at 21:57
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    So what if Alice buys a notebook and some pens and tells Bob: "We can't just rob a bank without planning, so we'll write down everything we need for this bank robbery to succeed". That could? be an overt step?
    – gnasher729
    May 22 at 12:04
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    @gnasher729 - if the prosecution lawyers get hold of the pages, yes. May 22 at 15:08
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It’s a crime if it’s a crime

For example, under anti-terrorism law, it’s a crime to:

  • commit a terrorist act
  • plan or prepare for a terrorist act
  • finance terrorism or a terrorist
  • provide or receive training connected with terrorist acts
  • possess things connected with terrorist acts
  • collect or make documents likely to facilitate terrorist acts.

When thinking about crosses the line into “plan or prepare”, “possess things” and “collect or make documents” is a matter for the prosecution and defense to argue and the jury to decide.

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    Is terrorism memorabilia is straight out? Like, can't a person collect mementos of former terrorist attacks? For... history purposes? (And yes, I clicked the link).
    – Mindwin
    May 20 at 20:38
  • "possess things connected with terrorist acts" is a bit of a big one - cars, for example, have often been linked with terrorist acts; as are mobile phones; ball bearings are a common component, as are wires and batteries... May 23 at 15:23
  • @MikeBrockington An interesting point, but I'm wondering if that is meant to refer to specific things that were/are themselves connected to a terrorist act (e.g. possessing the specific phone that was used to detonate a bomb) or if it has the more general meaning that you seem to be suggesting. I'm not sure how things work in Australia, but I would think the latter would almost certainly be struck down as unconstitutionally overbroad in the U.S. Obviously, it isn't reasonable to ban possession of any type of thing that has previously been used in some terrorist act.
    – reirab
    May 23 at 16:29
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    @reirab oh really? Ever tried to carry a liquid onto an aeroplane in the US?
    – Dale M
    May 23 at 22:28
  • @DaleM I've carried lots of liquids onto airplanes in the U.S. They just happened to be ones that I acquired after passing through security. :) Banning one specific type of product from passing through an airport security checkpoint is quite different from criminalizing possession of anything that might be "connected with terrorist acts," though. If that has the meaning Mike suggests, it is both incredibly broad and incredibly vague, which is why I suspected that that wasn't what was meant by the law.
    – reirab
    May 24 at 4:38
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There's another aspect to it that you asked about in the text of your question (not the title). And I'm not trying to "call any other answers wrong", but you may be interested in some other thoughts.

"I'm not sure it's illegal": No one knows all the law.

The gray areas are a big problem. Very few people have read the statute, to say nothing of the developed case law.

Seriously. A lot of people can't tell murder from self-defense, and the USA has an endless parade of court cases where that is the matter in dispute! (disputing the facts and how the law applies to them).

But most of the time, when people can't figure out if something is a crime, and where these distinctions matter, it's a smaller matter like tax fraud. So I disagree with your "big or small shouldn't matter", it kinda does.

On a wobbler, asking actually helps you

Again this is more likely on smaller matters.

When criminality is not entirely clear, it greatly aids your case when you consult licensed experts. (and follow their advice).

It's all about mens rea, or "guilty mind". If you didn't intend to commit a crime, showing that you consulted counsel and followed their advice shows that you did not have a guilty mind. In my country criminality is based on "guilty mind".

For instance, to the American IRS tax authority, showing you followed the advice of your CPA reduces it from "tax fraud" to "tax error" and you get away with simply paying back tax and interest. Played for laughs on Breaking Bad, when Benecke was shown to have relied on a tax accountant who was incompetent. (this wouldn't work in the real world because the CPA's lack of qualifications were obvious.)

It's not as generally effective on big crimes, because how do you justify asking your attorney how to rob a bank? You can't. So it must be a reasonable person's inquiry, so it must pertain to your lawful activity such as being a bodyguard or police officer, e.g. "Rules of Engagement" for when you can shoot a citizen. In fact police departments have good legal counsel on this who develop training programs. As long as the training program is reasonable, an officer saying "My behavior conformed with our training program" will more easily convince the jury. (even if the training program is wrong in law).

Another example: Suppose I am a Holocaust museum. In my country political campaign expenses are not tax deductible, so organizations that benefit from tax deductible contributions are not allowed to politicize except "de minimis lobbying". However, the government is planning to pass a law prohibiting possession of "things connected with terrorist acts", which is basically our whole museum. What does "de minimis" mean here? Are we allowed to go whole-hog to fight for a law that is directly in our interest? That is exactly the kind of situation where the tax authorities want you to talk with experts.

Again, if you are earnestly making effort to avoid violating the law, that removes mens rea (guilty mind).

One other thing: lawyer discussions are privileged

Your conversation with your lawyer and tax accountant are privileged, meaning not admissible in court. (the lawyer/accountant can't narc you and can't be forced to testify as to your conduct).

Which means, if you have any questions about a crime, your lawyer is the one person you CAN talk to about it. (or your accountant if it relates to money).

Talking to someone not retained as YOUR attorney or accountant is not privileged at all, and it can be damning evidence against you if someone says "Yeah, defendant talked to me about doing that crime".

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    "in my country this is so rewarded that...", which country, if I may ask? May 21 at 21:35
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    "charities like my museum aren't allowed to do it". To do what? political campaigns? deductions of expenses those campaigns cause? what does a lobbying exception have to do with planning a crime? The purpose of lobbying is precisely to discourage legislators from enacting or maintaining undesirable statutes, and thus preemptively rule out the criminality of what the lobbyist seeks to accomplish. Is the statutory prohibition you depict realistic? Even if it is, the advice that experts or licensed professionals provide has little or nothing to do with the lawfulness of planning a crime. May 21 at 21:42
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    "error made by OP in presuming that every human knows exactly what is criminal". Not at all. The OP even depicted a person saying "Would it be illegal to do XYZ? I want to do this, but I'm not sure if it's legal" as part of a hypothetical scenario. "lawyers aren't even sure about that; that's why we have case law!" That is not why case law exists. Rather than being not sure of whether something is a crime, lawyers try hard to persuade the court that their legal arguments are more meritorious than the adversary's. You should have given LorenzoDonati specifics & sources of your assertion. May 21 at 23:42
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    "You seem strangely hostile, what's going on?" Not hostile at all. It's only that your answer & comments reflect a thorough misinterpretation of what the OP says, and altogether they fail to address his question. That can only confuse the audience. Nowhere does the OP ask about controversies for which the law is undefined (and which often leads to the development of case law). Instead, the OP's question pertains to issues of mens rea. This implies that he has in mind scenarios where statutory and/or case law already addresses the lawfulness of someone's envisioned or devised actions. May 22 at 0:18
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    "I don't agree at all with your interpretation of the question". (1) The OP's acceptance of my answer indicates his agreement that I grasped the substance of his question. (2) Users submit questions typically because they seek to enhance their understanding of the law, not to be told that "your lawyer is the one person you CAN talk to about it" and that reading the statutes is "what lawyers and accountants are for!". (3) Reliance and the attorney-client privilege are irrelevant to the OP's question. (4) Providing specific sources of law would be more useful than delving in a TV series. May 23 at 12:12
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The most common offense related to planning a crime would be "attempt". If you have taken a concrete step towards commission of a crime, especially if it is not subsequently abandoned, that is an "attempt" to commit a crime, which is a crime.

Likewise, if you direct someone to commit a crime, that is solicitation of a crime.

The general class of crimes that are attempts, solicitation, and conspiracies, is called "inchoate crimes".

But, mere planning a crime, without a concrete step to actually carry out the plan, usually does not itself constitute a crime.

Also, if your plans to carry out a crime are discovered, and someone, in fact, carries out a crime according to your plan, that is strong, although not irrefutable, circumstantial evidence that if you committed that crime, that it was intentional and pre-meditated, and that if it isn't clear who committed the crime, that you are the person who did so. The more specific the plan, and more the plan is not the only plausible way to commit the crime which could have (and usually would have) been carried out in another way, the strong the circumstantial evidence tends to be. If the plan names names, places, times, and modus operandi it is stronger evidence than an entry in a to do list "think about robbing a bank somewhere").

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You will not be punished for planning a crime if you present it as a work of fiction.

Some examples: In the movie The Act of Killing

(https://www.imdb.com/title/tt2375605/?ref_=fn_al_tt_1)

the real life participants of mass murder describe going to watch Al Pacino films, and other American Gangster movies, to "learn how to act more like a gangster".

I don't have the references on hand, but I have learned from multiple documentaries, that street gangs collect and study the movies from the Godfather series to learn how to be "proper" gangsters

https://www.imdb.com/title/tt0068646/?ref_=fn_al_tt_1

There are many more examples:

The Columbine High School shooters dressed up like characters in the movie The Matrix, possibly in imitation of the - we have to rescue Morbius - scene.

https://www.imdb.com/title/tt0133093/?ref_=fn_al_tt_1

I wish I had kept the references, but I have watched two other documentaries where European criminals, with records of confinement for crimes, reveal that they "watch American movies" to get ideas for "better crimes".

Finally, Incorporation hides a multitude of sins: It works this way:

  1. You look up how much the fine is
  2. You determine that the profit outweighs the fine
  3. If you get caught, the people who buy your products pay the fine. That is: a certain amount of the income received from doing business is set aside to pay the fines. You and your associates get away Scott-free. You keep your jobs, and salaries, and you are extremely unlikely to go to jail.

https://www.cnn.com/2019/04/03/investing/elizabeth-warren-executives-jail-legislation/index.html

so there you have it... & etc.

The concept here is that humans are the only creatures on Earth that can learn from stories, and incorporate those stories into their behaviors.

So, the solution is:

Write out your crime as a drama, or action movie. Give the main character a compelling reason to commit the crime Then, sit back and let someone else do it for you.

...clean as a newborn's bottom! ...

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  • Yes, look no further than the crazy Worldbuilding site here on Stack Exchange. May 22 at 11:14
  • Another variation in some cases is planning for actions which hopes will become legal, recognizing that the planning might be in vain if that never happens. For example, someone who expects that laws against some product will be repealed might purchase equipment and make it ready to start production as soon as the repeal is signed into law. If the legislation in question ends up getting vetoed, the effort spent setting up the equipment may be wasted, but would not demonstrate any kind of criminal intention.
    – supercat
    May 23 at 15:42
  • "I have watched two other documentaries where European criminals, with records of confinement for crimes, reveal that they "watch American movies" to get ideas for "better crimes"." Honestly, considering how 'realistic' movies tend to be, this is really probably for the best (for society) if criminals are basing their plans on Hollywood depictions.
    – reirab
    May 23 at 16:58
-3

Lyrical Terrorist

She wrote some not particularly nice things down in a notebook and got jailed for being "a terrorist".

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    According to your link she was actually convicted for "possessing a document or a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism"
    – Rick
    May 22 at 17:31
  • also, from that very link, "Her conviction was later overturned on appeal" making this not the greatest example
    – AakashM
    May 23 at 10:50
  • She was not prosecuted for the "not nice things" she wrote, but for possessing books that were essentially terrorism manuals. As for the appeal, the law under which she was convicted was later clarified by courts in such a way that some of the documents she was convicted for possessing were not covered by the crime. The prosecution stated that others would have been, but "taking into account the time Ms Malik spent on remand before her first trial, and the likely non-custodial sentence she would receive upon conviction in a retrial, we have decided not to seek a retrial on those manuals."
    – reirab
    May 23 at 16:54
  • Source
    – reirab
    May 23 at 16:55

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