The Relevance of Harm as the Criterion for the Punishment of Impossible Attempts
| DOI | 10.1350/jcla.2009.73.2.561 |
| Date | 01 April 2009 |
| Published date | 01 April 2009 |
| Author | Sarah A. Christie |
| Subject Matter | Article |
The Relevance of Harm as the
Criterion for the Punishment of
Impossible Attempts
Sarah A. Christie*
Abstract There has been much debate about the relevance of punishment
in cases of impossible attempts. This article sets out the current position in
Anglo-American jurisdictions and considers the rationale behind punish-
ment in hypothetical impossible attempt cases in order to draw out the
key issues at the heart of responsibility. The cases of the inadequately
prepared attempt and the attempt which is doomed to failure are com-
pared to illustrate the relevance of the potential to cause harm in the
justification for punishing such actors. The article concludes with the
suggestion that the relevant criterion is the presence of the potential to
cause imminent harm, as opposed to future, speculative harm.
Keywords Criminal liability; Harm as a criterion; Impossible at-
tempts; Imminent harm; Future harm
Discussion of impossible attempts usually falls into one of two camps:
discussions focused on practical issues generated by the accused who
tries to import something which turns out to be innocuous or steal
something which turns out not to be there; and discussions focused on
theoretical issues generated by hypothetical examples of, amongst
others, an accused who tries to kill his victim using voodoo. The former
tends to be the remit of criminal lawyers, while the latter tends to be
tackled by legal philosophers. In reality, while there are clear practical
issues that need to be resolved as a matter of criminal justice policy (and
in the case of drug-related offences, that have very clear policy implica-
tions), the underpinning rationale for punishment in both discussions is
the same. Although the voodoo killer, doomed as he is to failure while
he adheres to his delusion, presents an unrealistic example of possible
conviction for attempted murder, his situation allows for discussion of
theoretical issues which, if dealt with properly, can only serve to render
the rationale for those realistic situations more robust.
It is now generally accepted that it is necessary to look subjectively at
the accused’s conduct when considering his liability for an impossible
attempt. This is done in the name of ensuring adequate protection for
society, acknowledging the potential in the accused to cause harm, and
acting to prevent that harm from being actualised in the future. The
focus is on what he believed he was striving towards, rather than the
reality of what he would have been able to achieve had he taken his
actions through to their conclusion. Thus, where the accused has tried
to import drugs but has been duped into buying and ‘importing’ a
* LLB (Hons), PhD (Edinburgh); Senior Lecturer in Law, The Robert Gordon
University, Aberdeen; e-mail: s.christie@rgu.ac.uk.
153The Journal of Criminal Law (2009) 73 JCL 153–164
doi:1350/jcla.2009.73.2.561
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