Criminal Culpability, Criminal Attempts and the Erosion of the Choice Theory
| Date | 01 February 2013 |
| Published date | 01 February 2013 |
| DOI | 10.1350/jcla.2013.77.1.820 |
| Subject Matter | Article |
Criminal Culpability, Criminal
Attempts and the Erosion of the
Choice Theory
Hannah Wishart*
Abstract This article considers whether the leading perspectives of the
theory of choice can provide the criminal law with a map to establishing
when and where on the commission of a crime the agent should be held
criminally culpable for a criminal attempt contrary to s. 1(1) of the
Criminal Attempts Act 1981. In order to do so, this article will focus on
examining the modern views of choice theory and their application in
relation to the criminal attempter, namely, the last-act-attempter and
non-last-act-attempter. As a result of such an inquiry it will be revealed
that choice theory does not adequately correspond to reconciling the
attribution of criminal culpability for both the last-act and non-last-act-
attempter because theorists are eroding the theory of choice by supporting
the reconcilement of criminal responsibility upon various views of
subjectivism.
Keywords Criminal responsibility; The non-last-act-attempter;
The last-act-attempter; Subjectivism; Choice
More often than not when the theories of choice are examined the
general raison d’être is that these concepts are used to excuse rather than
to inculpate, since one may not have the capacity to control one’s
wrongful actions or the opportunity to make a choice to perform other-
wise.1As such, the perspective theories of choice will be observed in a
manner which inculpates (blames) for the acts performed because this
article focuses on the presumption that contrary to s. 1 of the Criminal
Attempts Act 1981 (‘if, with intent to commit an offence to which this
section applies, a person does an act which is more than merely prepar-
atory to the commission of the offence, he is guilty of attempting to
commit the offence’2) criminal attempts are crimes that should be
punished at the earliest stage possible.
Introduction
When a criminal court convicts a defendant of an offence, the defendant
is held to be criminally responsible for his conduct,3and if the defendant
is not held criminally responsible for his conduct, the criminal court
cannot convict the defendant for a criminal offence.4From this it can be
* LLM; PHD student at Manchester University; e-mail:
hannah.wishart@postgrad.manchester.ac.uk.
1 M. Moore, Placing Blame (Oxford University Press: Oxford, 1997) 549.
2 Criminal Attempts Act 1981, s. 1(1).
3 V. Tadros, Criminal Responsibility (Oxford University Press: Oxford, 2005) 21.
4 Ibid. at 21.
78 The Journal of Criminal Law (2013) 77 JCL 78–90
doi:10.1350/jcla.2013.77.1.820
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