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Published online by Cambridge University Press: 16 January 2009
This paper defends a version of the doctrine that the mens rea of a criminal attempt should consist in intention as to the central or consequential aspects of the actus reus of the complete offence, even when such intention is not required for that complete offence, but need only involve recklessness as to the circumstantial aspects of the complete offence if such recklessness suffices for the complete offence. Attempted rape should require an intention to have sexual intercourse, but only recklessness as to the fact that the woman does not consent. Attempted criminal damage should require an intention to destroy or damage (though the complete offence requires no such intention), but only recklessness as to the fact that what is destroyed or damaged is“property belonging to another”.
1 Sexual Offences (Amendment) Act 1976, s. 1(1).
2 Criminal Damage Act 1971, s. 1(1).
3 Law Commission Working Paper No. 50, Inchoate Offences: Conspiracy, Attempt and Incitement (1973), paras. 88–9.Google Scholar
4 Buxton, R., The Working Paper on Inchoate Offences: Incitement and Attempt [1973] Crim.L.R. 656, pp. 662–4; Law Commission No. 102, Attempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement (1980), paras. 2. 11–12.Google Scholar
5 Criminal Attempts Bill cl. 1(3).
6 See House of Commons Standing Committee D, February 17 1981, col. 236 (Mr. Mayhew, Home Office Minister of State); Williams, G., “The Government's Proposals on Criminal Attempts” (1981) 131 New Law Journal 128 (but contrast G. Williams,“The Problem of Reckless Attempts” [1983] Crim.L.R. 365).Google Scholar
7 Criminal Attempts Act 1981, s. 1(1).
8 See E. Griew's Commentary in [1981] Current Law Statutes; Dennis, I. H., “The Criminal Attempts Act 1981” [1982] Crim.L.R. 5, pp. 11–12.Google Scholar
9 See Smith, J. C. & Hogan, B., Criminal Law (6th ed.Butterworths 1988; referred to hereafter as Smith & Hogan) p. 60Google Scholar; Williams, G., Textbook of Criminal Law (2nd ed.Stevens 1983; referred to hereafter as TCL) p. 116Google Scholar; Law Commission No. 177, A Criminal Code for England and Wales (1989; referred to hereafter as 1989 Draft Code) vol. 1, Draft Criminal Code Bill, cl. 18(b).
10 [1982] 2 All E.R. 591.
11 (1984) 79 Cr.App.R. 244, 249.
12 [1987] Crim.L.R. 393.
13 [1990] 1 W.L.R. 813. See in general G. Williams, “The Problem of Reckless Attempts” [1983] Crim.L.R. 365; R. Buxton, “Circumstances, Consequences and Attempted Rape” [1984] Crim.L.R. 25; J. C. Smith [1987] Crim.L.R. 394 (Comment on Millard&Vernon), 562 (Comment on Mousir), 760 (Comment on O'Toole).
14 But see J. C. Smith [1987] Crim.L.R. 563, 759 for some suggestions.
15 Law Commission No. 143, Codification of the Criminal Law (1985), Draft Criminal Code Bill cl. 53; see commentary para. 14. 29.
16 1989 Draft Code, vol. 2 (Commentary) para. 13. 45.
17 See Smith, J. C., “Two Problems in Criminal Attempts” (1957) 70 Harv.L.Rev. 422; and “Two Problems in Criminal Attempts Re-examined—I” [1962] Crim.L.R. 135.Google Scholar
18 Sexual Offences Act 1956, s. 6; see Smith [1962] Crim.L.R. 135, p. 141; Collier [1960] Crim.L.R. 204.
19 Sexual Offences Act 1956, s. 7.
20 Law Commission No. 102, (n. 4 above) paras. 2. 14–15.
21 Smith & Hogan p. 289.
22 Criminal Damage Act 1971, s. 1(1).
23 See Cawthorne “1968” J. C. 32; Gentry v. State 437 So.2d 1097 (Florida Supreme Court 1983)— but contrast State v. Grant 418 A.2d 154 (Maine Supreme Court 1980); Lajoie v. R (1973) 33 DLR 3d 618 (Supreme Court of Canada)—but Lajoie was overruled in R v. Ancio (1984) 6 DLR 4th 577.
24 See Whybrow (1951) 35 Cr.App.R. 141; Mohan [1976] Q.B. 1; Millard & Vernon [1987] Crim.L.R. 393; O'Toole [1987] Crim.L.R. 759.
25 It was urged in Stuart, D., “Mens Rea, Negligence and Attempts” [1968] Crim.L.R. 647, but retracted in his Canadian Criminal Law (Carswell, Toronto 1982), p. 529Google Scholar; see also Ashworth, A. J., “Criminal Attempts and the Role of Resulting Harm” (1988) 19 Rutgers Law Journal 725, pp. 753–7.Google Scholar
26 See Stuart, D., “Mens Rea, Negligence and Attempts” (n. 25 above) pp. 656–7Google Scholar; Ashworth, A. J., op. cit. (n. 25 above), pp. 755–6Google Scholar; Fitzgerald, P. J., Criminal Law and Punishment (OUP 1962), pp. 98–101.Google Scholar
27 Law Commission No. 102 (n. 4 above), para. 2.12; see Buxton, op, cit. nn. 4, 13 above.
28 On our discretion in describing actions see Feinberg, J., “Action and Responsibility” in White, A. R. (ed.), The Philosophy of Action (OUP 1968) 95, pp. 106–7Google Scholar; D'Arcy, E., Human Acts (OUP 1963), ch.1Google Scholar; Anscombe, G. E., Intention (2nd ed., Blackwell 1963), ss. 23–6.Google Scholar
29 Davidson, D., “Agency” in Davidson, , Essays on Actions and Events (OUP 1980) 43, p. 59Google Scholar: see also Danto, A. C., “Basic Actions” in White, A. R. (ed.), The Philosophy of Action (OUP 1968) 43Google Scholar; J. C. Smith, “Two Problems in Criminal Attempts” (n. 17 above) pp. 422–4; Robinson, P. H. & Grail, J. A., “Element Analysis in Defining Criminal Liability” (1983) 35 Stanford Law Review 681, pp. 706–10, 719–24.CrossRefGoogle Scholar
30 See Annas, J., “How Basic are Basic Actions?” (1977–1978) 78 Proceedings of the Aristotelian Society 195;CrossRefGoogle ScholarBaier, A. C., “The Search for Basic Actions” (1971) 8 American Philosophical Quarterly 161;Google ScholarEbersole, F., “Where the Action Is” in Ebersole, , Things We Know (Eugene Press 1967) 282Google Scholar: also Smith & Hogan, p. 39; Williams, G., Criminal Law: The General Part (2nd ed.Stevens 1961; referred to hereafter as CLGP), s. 11.Google Scholar
31 The distinction between an action and its consequences need not concern us here, since the doctrine under discussion requires intention as to all those aspects of the offence which are either part of “the action” or amongst its consequences.
32 Offences Against the Person Act 1861, s. 20.
33 Compare the argument about abduction (Sexual Offences Act 1956, s. 20) between Buxton (op. cit. n. 4 above pp. 662–3, op. cit. n. 13 above pp. 29–30) and Williams (op. cit. n. 13 above p. 368).
34 Smith, J. C., “Two Problems in Criminal Attempts” (n. 17 above) p. 424.Google Scholar
35 Smith, , “Two Problems in Criminal Attempts” (n. 17 above) p. 424.Google Scholar
36 See n. 33 above.
37 Sexual Offences (Amendment) Act 1976, s. 1(1); see Smith&Hogan, pp. 430–7. “Sexual intercourse” requires penetration by the penis, but need not involve emission (Sexual Offences Act 1956, s. 44; Sexual Offences (Amendment) Act 1976, s. 7(2); “a woman not my wife” includes “a wife from whom I am judicially separated, or whom I am under an injunction not to molest”.
38 See White, S., “Three Points on Pigg” [1989] Crirn.L.R. 539; Smith & Hogan p. 437.Google Scholar
39 Theft Act 1968, s. 15. The offence also involves dishonesty and an intention to deprive the other of her property permanently; an attempt to commit the offence must therefore also involve these elements.
40 Smith argued that recklessness as to whether the property which I take belongs to another sufficed for theft, and thus for attempted theft, under the pre-1968 law (“Two Problems in Criminal Attempts” (n. 17 above) pp. 430–1); ss. 3(1) and 6(1) of the Theft Act 1968 suggest that this is still true.
41 Theft Act 1968, s. 15(4). See Smith, J. C., “Two Problems in Criminal Attempts” (n. 17 above) pp. 430–1, The Law of Theft (4th ed.Butterworths 1979), p. 82; CLGP p. 619.Google Scholar
42 SeePrince (1875) 13 Cox C.C. 138; Smith & Hogan, p. 454.
43 Op. cit. (n. 13 above) p. 29.
44 See Smith & Hogan pp. 39, 454; Jones [1973] Crim.L.R. 621.
45 See Smith & Hogan p. 39; and Mousir [1987] Crim.L.R. 561 (with Comment by Smith) for a related point about the Child Abduction Act 1984, s. 2.
46 Timmins (1860) 8 Cox C.C. 401; see Smith & Hogan, p. 454.
47 See Smith & Hogan p. 455.
48 Criminal Damage Act 1971, s. 1(1).
49 I am presumably “reckless as to whether any such property would be destroyed or damaged (Criminal Damage Act 1971, s. 1(1)) not only if I am reckless as to whether property which I know belongs to another is destroyed or damaged, but also if I am reckless as to whether what I destroy or damage is another's property.
50 See Millard & Vernon [1987] Crim.L.R. 393.
51 But see text at nn. 70–71 below for a possibly counter-intuitive implication of this method.
52 Stannard, J. E., “Making Up for the Missing Element: A Sideways Look at Attempts” (1987) 7 Legal Studies 194.CrossRefGoogle Scholar
53 Stannard argues that it also deals happily with “impossible attempts” which involve the absence of some pure circumstance—the goods which I handle are not stolen; I cannot discuss this aspect of his argument here.
54 Op. cit. pp. 197, 201, 204.
55 We must thus focus on her direct intentions—on the result which she is acting in order to bring about: an attempt therefore requires a direct intention to bring about, and not merely morally certain foresight of, the relevant result. Many would reject this view: see, for instance, Smith, J. C., “Two Problems in Criminal Attempts” (n. 17 above) pp. 426–7;Google Scholar Smith & Hogan p. 288; TCL pp. 408–9; A. J. Ashworth, op. cit. (n. 25 above) p. 754; Hart, H. L. A., “Intention and Punishment” (in Punishment and Responsibility, OUP 1968, 113) pp. 126–7;Google Scholar 1989 Draft Code cl. 49(1), interpreted in accordance with cl. 18(b) (but contrast Law Commission No. 102 (n. 4 above) para. 2.17). I cannot justify this view here: but see Stannard, , op. cit.(n. 52 above); and my Intention, Agency and Criminal Liability (Blackwell 1990), ch. 8.3–4.Google Scholar
56 I leave aside the issue of whether recklessness here should require an actual awareness of risk: but in principle“recklessness” should bear the same meaning in the context of an attempt as it does in the context of the complete offence (see Breckenridge (1984) 79 Cr.App.R. 244, 249).
57 Theft Act 1968, s. 15; see text at n. 41 above.
58 Sexual Offences Act 1956, s. 20; see text at nn. 42–7 above.
59 Here as elsewhere we must of course also ask whether the defendant's acts are “more than merely preparatory to the commission of the offence” (Criminal Attempts Act 1981, s. 1(1)). My present concern is with the mens rea rather than the actus reus of attempts: but we may note that the defendant's acts must clearly be “more than merely preparatory to the commission of the offence” if we are to say that he is “trying” to do something which would constitute the commission of that offence if he succeeded in doing it.
60 Child Abduction Act 1984, s. 2; see Mousir [19871 Crim.L.R. 561.
61 See text at nn. 43–7 above; for the contrary (and, I think, mistaken) view see J. C. Smith, Comment on Mousir [19871 Crim.L.R. 562.
62 Sexual Offences Act 1956, s. 7.
63 Sexual Offences Act 1956, s. 6; see Collier [19601 Crim.L.R. 204.
64 See text at nn. 17–19 above.
65 Offences Against the Person Act 1861, s. 20.
66 Criminal Damage Act 1971, s. 1(1); see text at n. 49 above.
67 See p. 112 above.
68 This test would therefore convict of attempted theft the man who puts his hand into an actually empty pocket with intent to steal (see Collins (1864) Le. & Ca. 471), and of attempting to produce a controlled drug a man who tries to produce cocaine from an actually harmless powder (see Nock [1978] 3 W.L.R. 57): for each would commit the relevant complete offence if, per impossibile, he succeeded in doing what he is trying to do. The test does have some affinity with the slogan under which courts have sometimes acquitted in cases like these—would the defendant commit the complete offence if he did all that he intended to do (see Percy Dalton (1949) 33 Cr.App.R. 102, 110; Haughton v. Smith [1973] 3 All E.R. 1109, 1117, 1121; Nock, supra, 63, 67; Anderson v. Ryan [1985] 2 All E.R. 355, 365, 367): but it avoids the confusions which that slogan has so often created.
69 In some cases, however, we may be unsure whether a particular result is part of what the agent is trying to achieve, or a further consequence of it: if she tries to blow up a plane in mid-air, are the deaths of the passengers part of what she is trying to achieve (so that she is guilty of attempted murder), or a separate and further consequence? See Hyam [1974] 2 All E.R. 41, 52; Duff, op. cit. (n. 55 above) ch. 4.5.
70 On “involuntary” manslaughter, see Smith & Hogan, pp. 345, 352–5.
71 See Smith & Hogan p. 298; State v. Grant (1980) 418 A.2d 154, 156.
72 Criminal Attempts Act 1981, s. 1(1); see Stannard, op. cit. (n. 52 above) pp. 195–6.
73 See n. 26 above.
74 See Duff, op. cit. (n. 55 above) ch. 8.3–4.
75 See text at n. 6 above.
76 Anderton v. Ryan [1985] 2 All E.R. 355.
77 My account will, I think, provide a neater and simpler version of the account which J. C. Smith once offered, but has now abandoned: see “Two Problems in Criminal Attempts” (n. 17 above) pp. 435–47; “Two Problems in Criminal Attempts Re-examined-II” [1962] Crim.L.R. 212; “Attempts, Impossibility & the Test of Rational Motivation” (1984) Auckland Law Review 25. I develop this account in “Attempts and the Problem of the Missing Circumstance”, forthcoming in Northern Ireland Legal Quarterly.Google Scholar
