Abstract/Summary

My paper argues that the criminal defence of withdrawal could, and should, be more readily available as a defence than it currently is. Compare the following examples: (1) D is jealous of V, his ex-wife’s new partner. He decides to kill V by beating him to a pulp. He knows that V goes for a run in the evening, so one day D lies in wait for V with a baseball bat. As V jogs past him, D jumps out of the bushes and swings the baseball bat at him with force, but misses. D takes aim again, but seeing the fear in V’s eyes, he experiences a sudden change of heart. He drops the baseball bat and walks away. Under the law as it stands, D will be criminally liable for assault by causing V to fear immediate harm. It is very likely that, in light of D’s intention to kill V, D’s swing of the bat makes for an act sufficiently proximate to the killing of V as to amount to attempted murder. Yet at that point in time, D’s better self leads him to abandon his deadly project. Withdrawal is no defence to attempted crimes at common law. This is so even though D abandoned his crime voluntarily, before any physical harm occurred to V, and whilst it was still possible for the crime to come to fruition. (2) P tells S of his plans to cause V, his rival-in-love, grievous bodily harm by severely beating him. S considers this treatment too lenient and suggests that P kill V by shooting him in the head. He offers to get P a gun, which he does. The next day, S has a change of heart. Driving towards P’s house, S calls P on his mobile, pleading with him not to go ahead with the shooting. By the time he arrives, and despite S’s best efforts to persuade P to abandon his murderous plan, P has already gone ahead and shot V. In this case, S might well have done enough to withdraw from the criminal venture and thereby to extricate himself from liability. This is so even though the full crime has been committed; V was killed, and, what is more, because of S’s prior involvement: without S’s advice and assistance, P would not have thought of killing V, let alone have had the means to do so. The difference in outcome for D and S arises because English law recognises withdrawal as a ‘defence’ only in the context of secondary participation (example 2); it does not avail principals who abandon their criminal purpose after having crossed the crucial threshold from mere preparatory acts to an attempt but before their crime has come to fruition (example 1). Allowing withdrawal to let the defendant off the hook in example 2 but not in example 1 requires explanation. My paper argues that a case can be made to treat both defendants alike and that extending the defence to principals is within the interpretative reach of English law and, indeed, warranted.