Impossible Attempts—Another View

DOIhttp://doi.org/10.1111/j.1468-2230.1976.tb01442.x
Publication Date01 Jan 1976
IMPOSSIBLE ATTEMPTS-ANOTHER VIEW
SOMETIMES people take steps towards the perpetration of crimes
which they cannot commit. The vexatious problem of the man who
tries to steal his own umbrella, to handle stolen goods which have
ceased in law to be stolen or to poison his wife with
a
minute quantity
of cyanide is one that has been taken up by the Law Commission’s
Working Party on Inchoate 0ffences.l The decision of the House of
Lords in
Haughton
v.
Smith1
has now put an end to some of the
uncertainty which arose in this area as
a
result of conflicting judicial
authorities, but there are issues which still remain unanswered. That
not every attempt to do the impossible ought to give rise to criminal
liability is common ground among the many who have pondered
over the matter, but there is little accord as to where the line should
be drawn. However, there is more consensus with respect to the
method of approach. It is generally agreed that the problem is
essentially one of discovering the conceptual distinctions which
differentiate one impossibility situation from another and con-
structing a classification accordingly.
It is proposed to consider the unsatisfactory nature of some of
these classifications and then to discuss the respective merits of the
subjective and objective approaches to the law of attempt with
a
view to seeking
a
more effective solution.
PURE
AND
CONSEQUENTIAL CIRCUMSTANCES
Professor
J.
C. Smith provides
a
most useful preliminary analysis
of the different types of circumstances surrounding any given
criminal event which he believes have to be distinguished before
any classification of impossible attempts can be made.4 Some circum-
stances are irrelevant to the issue of the defendant’s criminal
liability,
e.g.
where the crime charged is being in possession of
a
firearm without
a
licence, the fact that the defendant’s gun is loaded
is
immaterial. Relevant circumstances are those without which the
crime intended by the defendant could not be committed. These
essential circumstances are subdivided into two, the pure and the
consequential. Pure circumstances are those which are specifically
mentioned in the definition of the offence as part of the
actus
reus,
e.g.
if
goods are not
stolen
according to the definition
of
that
term contained in the Theft Act then
a
pure circumstance is missing
and the offence of handling cannot be committed. Consequential
circumstances are
those the existence of which is essential to the
1
Inchoate Offences: Conspiracy, Attempt and Incitement,
Working Paper
No.
50
[1973] 3
All
E.R.
1109.
J.
C. Smith,
“Two
Problems in Criminal Attempts” (1957)
70
Harv.L.R.
422.
s.
24.
(1973). referred to hereinafter by paragraph numbcrs only.
4
Ibid.
at pp. 424-426.
55

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