[Z0175793] LAW3337
Counterterrorism Law & Policy
[2018]
The preparatory terrorist offences introduced by the Terrorism Acts of 2000 and 2006 1 unjustifiably
extend inchoate liability beyond the scope of the Criminal Attempts Act 1981. 2 Since the law of
‘attempts’ already faces ethical criticisms for criminalising ‘bad thoughts’, 3 it is a dangerous
development to criminalise the even remoter acts of preparation, 4 and possession.5 This essay will
demonstrate that justifying these measures based on potential catastrophic consequences lacks
merit as terrorism's threat to public safety statistically pales in comparison to the epidemic of
violence against women and girls.6
This essay will first address the inconsistency of ordinary inchoate offences in relation to
criminalising ‘bad thoughts’. It will then compare and critique the expansive scope of both s.5
TA2006 and s.58 TA2000. The former criminalises an unlimited range of conduct preceding the
inchoate standard of 'more than mere preparation', relying on defendants’ (D) fanaticism for
conviction. The latter purposely catches individuals with extremist beliefs or curiosity, infusing
information with terrorist intent and criminalising conduct that is not yet harmful, especially in the
context of widely available information. Finally, it will be proven that terrorist offences cannot be
justified by preventing potential consequences through a comparative analysis with VAWG.
Remoteness and uncertainty of all criminal ‘attempts’
The CAA1981 aims to enable police intervention “in good time to prevent harm”, by criminalising
conduct which is “more than merely preparatory”. 7 Whilst this statutory test aimed to provide clarity
to the inconsistency at common law such as the ‘last act’, ‘substantial step’ or ’unequivocal act’
tests, its flexibility still creates uncertainty. For example, whilst possessing a replica gun and demand
1
Hereinafter TA2000 and TA2006.
2
Hereinafter CAA1981.
3
Larry Alexander and Kimberly Kessler Ferzan, ‘Danger: The Ethics of Preemptive Action’ (2012) 9 Ohio St J
Crim L 637.
4
s.5 TA2006.
5
s.58 TA2000.
6
Hereinafter VAWG.
7
s.1(1) CAA1981.
Page 1 of 13
, [Z0175793] LAW3337
Counterterrorism Law & Policy
[2018]
note outside a post-office which D intends to rob did not constitute an attempt, 8 pointing a loaded
gun whilst not holding the trigger and the safety is on did. 9
These cases demonstrate the law’s confusion as to what should count as the AR of an attempt.
Courts are unsure whether D has to “actually tr[y] to commit the offence in question”, or whether he
merely has to position or equip himself”10 This ambiguity is also due to the underlying policy and
principles of criminal law, such as fair warning and labelling, minimum criminalisation, and the harm
principle.11 Depending on the remoteness of preparatory conduct, liability under the harm principle
seems dubious due to the problem of imputation: “the prohibited act neither causes harm nor has
any immediate tendency to cause harm”. 12 This is due to them being conditional on “further human
interventions, either by the original actor or by others.” 13 Therefore, inchoate liability does not
always treat individuals as autonomous, by giving them a “fair opportunity” to change their mind.” 14
As Duff notes, this suggests that the law doesn’t trust individuals’ abilities to make moral
judgements,15 preferring to treat those deemed ‘dangerous’ as culpable criminals pertaining to their
desires and fantasies.16 This approach is taken too far by preparatory terrorist offences, especially
given they pre-date ordinary offences in the criminal pattern.
s5 TA2006
Section 5 TA2006 is the most expansive ‘pre-inchoate’ crime criminalising “any conduct in
preparation for giving an effect to an intention” to personally or assist another to commit an act of
terrorism. The breadth of AR appears limitless, especially as it lacks a “list of outlawed activities
8
Campbell [1991] Crim LR 268.
9
Jones (1990) 91 Cr App R 351.
10
Geddes [1996] Crim LR 894.
11
JS Mill, On Liberty (1859).
12
Andrew Ashworth and Lucia Zedner, ‘Preventive Offences in the Criminal Law: Rationales and Limits’ in
Andrew Ashworth and Lucia Zedner (eds), Preventive Justice (Oxford University Press 2014).
13
Simester and von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalization
(Oxford: Hart Publishing, 2011), 79.
14
Ashworth and Zedner (n 12).
15
RA Duff, Criminal Attempts (1996) 37 and 367 ff.
16
Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (2009) 198-
199.
Page 2 of 13
Counterterrorism Law & Policy
[2018]
The preparatory terrorist offences introduced by the Terrorism Acts of 2000 and 2006 1 unjustifiably
extend inchoate liability beyond the scope of the Criminal Attempts Act 1981. 2 Since the law of
‘attempts’ already faces ethical criticisms for criminalising ‘bad thoughts’, 3 it is a dangerous
development to criminalise the even remoter acts of preparation, 4 and possession.5 This essay will
demonstrate that justifying these measures based on potential catastrophic consequences lacks
merit as terrorism's threat to public safety statistically pales in comparison to the epidemic of
violence against women and girls.6
This essay will first address the inconsistency of ordinary inchoate offences in relation to
criminalising ‘bad thoughts’. It will then compare and critique the expansive scope of both s.5
TA2006 and s.58 TA2000. The former criminalises an unlimited range of conduct preceding the
inchoate standard of 'more than mere preparation', relying on defendants’ (D) fanaticism for
conviction. The latter purposely catches individuals with extremist beliefs or curiosity, infusing
information with terrorist intent and criminalising conduct that is not yet harmful, especially in the
context of widely available information. Finally, it will be proven that terrorist offences cannot be
justified by preventing potential consequences through a comparative analysis with VAWG.
Remoteness and uncertainty of all criminal ‘attempts’
The CAA1981 aims to enable police intervention “in good time to prevent harm”, by criminalising
conduct which is “more than merely preparatory”. 7 Whilst this statutory test aimed to provide clarity
to the inconsistency at common law such as the ‘last act’, ‘substantial step’ or ’unequivocal act’
tests, its flexibility still creates uncertainty. For example, whilst possessing a replica gun and demand
1
Hereinafter TA2000 and TA2006.
2
Hereinafter CAA1981.
3
Larry Alexander and Kimberly Kessler Ferzan, ‘Danger: The Ethics of Preemptive Action’ (2012) 9 Ohio St J
Crim L 637.
4
s.5 TA2006.
5
s.58 TA2000.
6
Hereinafter VAWG.
7
s.1(1) CAA1981.
Page 1 of 13
, [Z0175793] LAW3337
Counterterrorism Law & Policy
[2018]
note outside a post-office which D intends to rob did not constitute an attempt, 8 pointing a loaded
gun whilst not holding the trigger and the safety is on did. 9
These cases demonstrate the law’s confusion as to what should count as the AR of an attempt.
Courts are unsure whether D has to “actually tr[y] to commit the offence in question”, or whether he
merely has to position or equip himself”10 This ambiguity is also due to the underlying policy and
principles of criminal law, such as fair warning and labelling, minimum criminalisation, and the harm
principle.11 Depending on the remoteness of preparatory conduct, liability under the harm principle
seems dubious due to the problem of imputation: “the prohibited act neither causes harm nor has
any immediate tendency to cause harm”. 12 This is due to them being conditional on “further human
interventions, either by the original actor or by others.” 13 Therefore, inchoate liability does not
always treat individuals as autonomous, by giving them a “fair opportunity” to change their mind.” 14
As Duff notes, this suggests that the law doesn’t trust individuals’ abilities to make moral
judgements,15 preferring to treat those deemed ‘dangerous’ as culpable criminals pertaining to their
desires and fantasies.16 This approach is taken too far by preparatory terrorist offences, especially
given they pre-date ordinary offences in the criminal pattern.
s5 TA2006
Section 5 TA2006 is the most expansive ‘pre-inchoate’ crime criminalising “any conduct in
preparation for giving an effect to an intention” to personally or assist another to commit an act of
terrorism. The breadth of AR appears limitless, especially as it lacks a “list of outlawed activities
8
Campbell [1991] Crim LR 268.
9
Jones (1990) 91 Cr App R 351.
10
Geddes [1996] Crim LR 894.
11
JS Mill, On Liberty (1859).
12
Andrew Ashworth and Lucia Zedner, ‘Preventive Offences in the Criminal Law: Rationales and Limits’ in
Andrew Ashworth and Lucia Zedner (eds), Preventive Justice (Oxford University Press 2014).
13
Simester and von Hirsch, Crimes, Harms and Wrongs: On the Principles of Criminalization
(Oxford: Hart Publishing, 2011), 79.
14
Ashworth and Zedner (n 12).
15
RA Duff, Criminal Attempts (1996) 37 and 367 ff.
16
Larry Alexander and Kimberly Kessler Ferzan, Crime and Culpability: A Theory of Criminal Law (2009) 198-
199.
Page 2 of 13
