The conduct requirement in the law of attempt

Abstract

The law of attempt draws a line between non-criminal preparatory conduct and conduct that is sufficiently close to the substantive offence to attract criminal liability. To assist with the line-drawing exercise, the New Zealand Crimes Act 1961 specifies a test of ‘immediate or proximate connection’ with the intended offence. The New Zealand Court of Appeal has recently applied a very flexible interpretation to the statutory test, with the result that the line for criminal liability is now pushed back further than in earlier judicial interpretations of the provision. This article examines whether the Court of Appeal’s approach is an appropriate method of assessing liability for attempt. With reference to proposals made by the Law Commission (UK), the article concludes by suggesting that instead of overly extending the margins of attempt, a separate offence of doing acts ‘preparatory to’ an attempt may, in some situations, be a more accurate way of labelling and penalising an actor’s misconduct.