² I shall try to show that the distinction between the three types of cases is not needed.

³ On the one hand, the opinion was expressed by the District Court in Siman-Tov (Siman-Tov v. State of Israel (1967) 55 P.M. 74) that impossible attempts are not punishable where the reason is qualitative or absolute inappropriateness of means, and are punishable where the reason is quantitative or relative inappropriateness of means or the absence of the object from the scene of the attempt. It was also ruled that an impossible attempt is not punishable where it is due to a missing relevant circumstance (the authenticity of foreign currency in an offence of prohibited dealing in “foreign” currency that was, in reality, forged), although the court viewed the case as one of absolute inappropriateness of means.

On the other hand, there are a number of obiter dicta of the Supreme Court giving full expression to the language of sec. 33(c) of the Penal Law, 1977 (L.S.I. Special Volume) namely that all types of impossible attempt are punishable. See: State of Israel v. Avni (1979) 33 (iii) P.D. 821, 833; Musak v. State of Israel (1980) 34 (i) P.D. 337, 345, 346; Mayzel v. State of Israel (1973) 27 (ii) P.D. 421, 426–428. A similar approach was taken by the District Military Court (Central District) in Case No. 155/76 (unpublished) in convicting the accused of attempted theft of a vehicle which, unknown to them, had been abandoned by its owner.

⁴ Draft General Part of the new Penal Law, para. 18, (1980) 10 Mishpatim 206Google Scholar.

⁵ The Criminal Attempts Act, 1981, Sec. I (2) (3). The section is reproduced with commentary in Smith, J.C., Hogan, B., Criminal Law (London, 5th ed., 1983) 264, 265Google Scholar.

⁶ See supra n. 1.

⁷ Lord Hailsham, p. 9 F–H; Lord Reid, pp. 13, 14; Lord Morris, p. 16 C; Viscount Dilhorne, p. 19 F and G.

⁸ Lord Hailsham, p. 9 H.

⁹ E.g., in the question of provocation.

¹⁰ In New Zealand, Sec. 72 of the Crimes Act 1961; in Canada: Sec. 24 (1) of the Canadian Penal Code.

¹¹ In New Zealand: Donnely, (1970) N.Z.L.R. 980. In Canada: Mewett, A.M., Manning, M., Criminal Law (Toronto, 1978) 150, 151Google Scholar.

¹² Learned authors are not always aware of the point in time at which the feasibility of the attempt is to be judged. Thus the examples given by Hart (p. 153) of aiming a rifle in the wrong direction or a shot that hits a packet of cigarettes protecting the victim's chest (p. 159) may be examples of feasible attempts, since the beginning of the act may be earlier, upon first aiming the rifle, when it was possible to aim it in the right direction or at an unprotected part of the body. The same applies to the example discussed by Lord Reid and Lord Hailsham in Haughton v. Smith of the victim moving at the last moment, and possibly that given by G. Hughes (p. 1010) of placing an explosive device in the victim's house that is timed to detonate at midnight, when the victim does not sleep in his house at night, since there is a possibility that the victim would spend a night in his home.

¹³ In actions that are beyond the stage of preparation.

¹⁴ This consideration may not exist where the perpetrator is mistaken as to the existence of a circumstance relevant to the perpetrator, such as his being a soldier or public servant. It is therefore not clear that punishment is justified in such a case.

¹⁵ The example of the sword that catches in the victim's cloak is taken from Hall, supra n. 1 at 558, n. 3. Hall attributes it to Seneca, citing Westermarck, , Origin and Development of the Moral Ideas (2nd ed., 1942)Google Scholar.

¹⁶ For example, the offence of being absent without leave under sec. 94 of the Military Justice Law, 5715–1955 (9 L.S.I. 184).

¹⁷ This fundamental approach is the basis of the doctrine of transferred intention, according to which a person who attempts to kill A is guilty of murder if he in fact kills B.

¹⁸ To be perfectly exact, before his enemy began to carry out the attempt.

¹⁹ Haughton v. Smith, supra n. 1 per Lord Reid, p. 14, A.

²⁰ The fear of repetition is strikingly expressed in the judgment in Nock (supra n. 1) concerning the pickpocket.

²¹ Just as the conduct of a poisoner is punishable where after he has put poison in his intended victim's cup, he attempts to add an additional amount of poison but by mistake puts in a substance that neutralises the first dose of poison.

²² Or between the case where the police is on the scene from the beginning and where they arrive moments after commission of the crime has begun. This, of course, is on the assumption that the police presence renders commission of the crime impossible.

²³ We are aware of the fact that when the mistake of law affects the scope of the norm and relates to a purely technical regulative arbitrary aspect, the distinction between mistake of law and mistake of fact loses its importance. See: Baumann, J., ”Das Umkehrverhältnis zwischen Versuch und Irrtum im Strafrecht” (1962) NJW 16Google Scholar; G. Hughes, supra n. 1 at 1012, 1013; Kadish, S.H., Paulsen, M.G., Criminal Law and its Processes (Boston, 3rd ed., 1975) 367Google Scholar.

²⁴ There is also the danger that the perpetrator will realize his intention of attacking that same protected value, but not necessarily by repetition of the same conduct, for example because circumstances enable him to realize it in a different way, as when the victim crosses his path when he is driving.

²⁵ Contra Fletcher, supra n. 1 at 176–184.

²⁶ See, for example, the remarks of Lord Reid in Haughton v. Smith supra n. 1 at 14 C. A similar view appears in Prof. Enker's article, supra n. 1. Prof. Enker suggests that the problem be dealt with by statutory solutions for individual offences. If this approach is possible, then the problem may also be overcome by a general statutory provision.

²⁷ Haughton v. Smith, supra n. 1 at 11, D.

²⁸ ibid., at 14, C.

²⁹ Ibid., at 19, E and F.

³⁰ J.C. Smith supra n. 1 at 217, 218. See also: Smith, J.C. and Hogan, B., Criminal Law (London, 3rd ed., 1973) 203Google Scholar; G.H. Gordon, supra n. 1 at 196; H.L.A. Hart, supra n. 1 at 151.

³¹ For example, a person who has intercourse with a woman who is mentally defective only in his eyes. Prof. Enker's suggestion that the ball be put in the legislator's court, leaving him to decide in each individual offence whether to forego the existence of a relevant circumstance or not, does not appear convincing to us. There is no justification for abandoning the distinction between the completed crime and attempt and the appropriate structure should be retained for the completed crime, in terms of the negative character that the actus reus generally has of itself. Furthermore, the distinction between crimes that require punishment and those that do not is not essentially between attempts at different offences but between different types of attempt within the same offence. Prof. Enker himself considers that an attempt to rape a corpse that is thought by the would-be rapist to be a living woman may in the particular circumstance be deserving of punishment. The obvious solution is therefore a general statutory rule, with the proviso—also general—for de minimis (or a special de minimis proviso for this problem in places where the general proviso is not recognized, as can be found in some Penal Codes).

³² P. Graven, supra n. 1 at 89; H.L.A. Hart, supra n. 1 at 159; P.K. Ryu, supra n. 1 at 1184; The Law Commission No. 102, 50; Kenny's, Outlines of Criminal Law (London, 19th ed. by Turner, J.W.C., 1964) 100Google Scholar. This distincton has been abandoned in France: G. Stefani, G. Levasseur, supra n. 1 at 203; and in Germany, P. Albrecht, supra n. 1 at 10, 11, 67; M. Stopfkuchen, supra n. 1 at 38. Enker and Fletcher take a different view.

³³ And should perhaps not be described as poison for this reason.

³⁴ J. Hall, supra n. 1 at 596; R.M. Perkins, R.N. Boyce supra n. 1 at 596; La Fave, Scott, supra n. 1 at 440; J.C. Smith, B. Hogan, (4th ed.) supra n. 1 at 257–258; Kenny, supra n. 32 at 100; Wechsler, Jones, Korn, supra n. 1 at 580.

³⁵ Among the judgments against punishment of impossible attempt in this case are: People v. Jaffé 78 N.E. 169 (1906), and for: People v. Rojas 55 Cal. 2d 252; 358 P. 2d 921 (1961); People v. Siu 126 Cal. App. 2d ed. 41; 271 P. 2d 575 (1954); U.S. v. Thomas 13 U.S. C.M.A. 278 (1962). Against punishment are the following learned authors: J.C. Smith, Perkins, Fletcher and Keedy, and in favour are: Glanville Williams, Turner, Gordon, Howard, Hall, La Fave and Scott.

³⁶ See supra n. 7.

³⁷ Keedy, supra n. 1 at 477. And see R.M. Perkins “Criminal Attempts and Related Problems” supra n. 1 at 330, 331, 335. Perkins sees the case of firing at a wooden dummy, when the real victim is nearby but takes a different direction, as an attempt that is impossible due to a missing relevant circumstance, on the basis of the earlier example given by him—attempt to steal an umbrella that is actually his own (see also Keedy, op. cit. at 482)—his general attitude towards the “relevant circumstances” cases and his view that an attempt to steal from an empty pocket is punishable.

³⁸ See J.C. Smith, supra n. 1 at 220, 221. The same line of thought may be found in the Jaffé case, supra n. 35 and see further below.

³⁹ Or if his cognition could be photographed as if by X-ray.

⁴⁰ In the same vein, see G. Williams in his reply to J.C. Smith, supra n. 1 at 49, 54–55; J. Hall, supra n. 1 at 597–598; H.L.A. Hart, supra n. 1 at 161, 162; G. Hughes, supra n. 1 at 1011, 1012; J.C. Smith, B. Hogan, supra n. 5 at 265; La Fave, Scott supra n. 1 at 440.

⁴¹ Haughton v. Smith, supra n. 1, Lord Reid, p. 14 C. See also Lord Morris, p. 15 C-F; Lord Dilhorne, p. 19 E and F.

⁴² Osborn, supra n. 1 at 64. For comment on this argument, see H.L.A. Hart, supra n. 1 at 158; G. Hughes, supra n. 1 at 1010, 1011.

⁴³ A, Enker, “Impossibility in Criminal Attempts—Legality and the Legal Process”, supra n. 1 at 701.

⁴⁴ Although this or similar cases are usually cited as examples of non-feasibility due to a missing relevant circumstance (not using this terminology). See supra n. 37. Contra Smith and Hogan, who see this case as one of a non-existent object, like the empty pocket.

⁴⁵ This perhaps accounts also for the distinction between the attempt to steal from an empty pocket, which is considered punishable (assuming that the thief is not after a specific object) and firing at a corpse, which is not considered so (assuming the opposite, i.e., that the assassin seeks the life of a specific person).

⁴⁶ See Gold, supra n. 1 at 234; Lord Reid in Haughton v. Smith at 13.

⁴⁷ See G. Williams' comments on Gold's article at 51; Hart, at 164.

⁴⁸ The same applies to innocent articles such as an umbrella or a pen, which can become weapons if used in a certain way.

⁴⁹ Haughton v. Smith, supra n. 1 at 6, D.

⁵⁰ G. Williams, The Criminal Law, supra n. 1 at 630.

⁵¹ The example is give by Glanville Williams.

⁵² A. Enker, “Mens Rea and Criminal Attempt”, supra n. 1 at 855.

⁵³ A. Enker, op. cit. at 859.

⁵⁴ J.C. Smith, supra n. 1 at 217.

⁵⁵ J.C. Smith, op. cit.

⁵⁶ J.C. Smith, op. cit. at 221.

⁵⁷ Supra n. 1 at 258.

⁵⁸ Op. cit., at 257, n. 13.

⁵⁹ Ibid., at 256. A similar formula appears in the Jaffé judgment.

⁶⁰ Enker, “Impossibility in Criminal Attempt”, supra n. 1 at 687.

⁶¹ Initially Enker considered attempt as conduct forbidden in itself (pp. 688, 689). Subsequently, however, he abandoned this view (justifiably so, for it is only the content of the law of attempts itself that makes putting out one's hand towards a pocket illegal), in favour of the requirement that the conduct be unique, attesting to the existence of the necessary mens rea that distinguishes the perpetrator from others (p. 702).

⁶² This is due to the need to have recourse to less reliable evidence such as doubtful confessions, evidence of stool-pigeons and accomplices and evidence of previous convictions. Op. cit., at 682.

⁶³ Enker, at 669.

⁶⁴ Prof. Enker himself does not deny the possibility of finding a remedy for the problem in the field of the law of evidence. Op. cit., at 709.

⁶⁵ Shared in part by Prof. Enker.

⁶⁶ As regards the restrictive character of causation, as claimed by Prof. Enker, it is no more possible to find a causal link in feasible attempts, since the results have not taken place. In addition, the causa sine qua non is a sieve with very large holes.

⁶⁷ Fletcher, supra n. 1 at 158.

⁶⁸ Ibid., at 159.

⁶⁹ Or left it where it was, if for example, it is in his office.

⁷⁰ C. Howard, supra n. 1 at 292, 293.

⁷¹ “rigorous” in Fletcher's words, at 153.

⁷² An attempt by usual, obvious means, such as killing with a gun, will be punishable, while an attempt to achieve the same result by cunning, hidden means, will not.

⁷³ J.C. Smith, “Two Problems in Criminal Attempts”, supra n. 1 at 221.

⁷⁴ Or perhaps by a desire to distinguish between attempts that are impossible due to a missing relevant circumstance and the other types of impossible attempt. The harmful nature of the substance is a relevant circumstance in the definition of the crime in English law.

⁷⁵ Enker, at 699. It is not clear whether the test proposed by him is of real or apparent danger. When sugar is taken from a sugar-bowl, it does not show an intention to kill but is an ordinary everyday act; if, on the other hand, the sugar is taken from a tin marked “poison” in circumstances that show that care was taken to use the particular tin marked “poison”, it ostensibly shows an intention to kill and is not at all ordinary conduct.

⁷⁶ Danger to life or health is not sufficient.

⁷⁷ Haughton v. Smith, supra n. 1 at 13, 14.

⁷⁸ Ibid., at 14, C.

⁷⁹ Present English Law; in the United States, the M.P.C. § 5.01 (with possibility of exempting impossible attempts using absurd means, when neither the act nor its perpetrator constitute a danger to the public); Proposed New Federal Criminal Code § 1001 (1); Connecticut: Conn. Gen. Stat. Ann. § 53–50A; Illinois: Ill. Rev. St. ch. 38 § 8–4b; Minnesota: Minn. Stat. Ann. § 609. 17; Wisconsin: Wis. Stat. Ann. § 939.32(2); Louisiana: La. Rev. Stat. Ann. § 14:27; New York § 110.10; North Dakota: N.D. Cent. Code § 121-06-01 (1977 Supp.); Ohio: Ohio Rev. Code Ann. § 2923.02 (B) (Page 1975); Pennsylvania: 18 Pa. Cons. Stat. Ann. § 901 (b) (Purdon 1975); in South Africa, Norway, Germany, Switzerland, Poland, Denmark, Sweden, Hungary, Iceland, Greece, Spain, Holland, Ethiopia, France.

⁸⁰ Haughton v. Smith, supra n. 1 at 14 E and F.

⁸¹ It is a different matter when the appropriateness of means is due to the special and unexpected condition of the object.

⁸² Hence (perhaps) the requirement of the Turkish Penal Code, para. 61, that the attempt be made “avec des moyens adéquats”.

⁸³ See also Law Commission No. 102, 49.

⁸⁴ Penal Law, 1977, sec. 336.

⁸⁵ The empty room and the empty pocket—see n. 7 supra. On the attempt being spoiled by the victim moving: p. 14, F (Lord Reid) and p. 8 E (Lord Hailsham).

⁸⁶ Nock, supra n. 1 at 64 in fin. On the development of the English law following Haughton v. Smith, see Hart, at 150, 151.

⁸⁷ See also the remarks of Lord Scarman, ibid., at 71, 72.

⁸⁸ Excluding the cases of putative crime and absurd attempt.