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Duff, R. A.
1991.
The Circumstances of an Attempt.
The Cambridge Law Journal,
Vol. 50,
Issue. 1,
p.
100.
Article contents
Making up for the missing element — a sideways look at attempts
Published online by Cambridge University Press: 02 January 2018
Extract
Why does the mens rea of attempt require intention even though some lesser state of mind will suffice for the completed offence? What is the meaning of ‘intention’ in this context? Is intention required for all elements of the crime attempted or only for some? Can one draw a distinction between circumstances and consequences in this connection? Can crimes of negligence or of strict liability be attempted? Why do ‘impossiblc’ attempts cause such difficulty? Is there any meaningful distinction to be drawn between Anderton v Ryan and Shivpuri, or was Shivpuri the last word on the matter? It would be presumptuous to suggest that this article was the answer to all these questions: nevertheless it is suggested that light can be thrown on them by standing back and looking at the nature of a criminal attempt. The key to these and other puzzles, it is suggested, can be found in two concepts, the analysis of attempt as a crime with a missing element, and the notion ofintention as distinct from knowledge or foresight of consequences as stressed in Moloney and more recently by the House of Lords in Hancock and Shankland.
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References
1. [1985] 2 All ER 355.
2. [1986] 2 All ER 334.
3. [1985] 1 All ER 1025.
4. [1986] 1 All ER 641.
5. This notion is borrowed from Glanville Williams’ Textbook of Criminal Law (‘TBCL’) (2nd edn, 1983), para 17.7, though the author does not use it in the context of attempt.
6. Where the main crime already requires a specific intention (eg wounding with intent under s 18 of the Offences Against the Person Act 1861) no greater mens rea can be required for the attempt.
7. Criminal Law (‘CL’) (5th edn, 1983) at p 255.
8. This was so at common law and is still the case under s 1(1) of the Criminal Attempts Act 1981.
9. Notes 3 and 4 supra; see now also Nedrick [1986] 3 All ER 1.
10. See the articles by the present writer at [1985] LQR 540 and [1986] NILQ 61.
11. This is the familiar notion of ‘oblique’ intention - see Glanville Williams, Criminal Law – The General Part (‘CLGP’), para 18 – adopted both by Glanville Williams himself and by Smith and Hogan in their textbooks. See also the Draft Criminal Code, Clause 24(1).
12. See for instance White, ‘Intention, Purpose, Foresight and Desire’ (1976) 92 LQR 569, and the articles by Duff in [1980] Crim LR 147 and 404, and [1986] Crim LR 711. See also Gordon, The Criminal Law of Scotland (1978) ch 7, para 18; Fletcher, Rethinking Criminal Law, para 6.5.2.
13. (1951) 35 Cr App Rep 141.
14. [1976] QB I.
15. ‘Two Problems in Criminal Attempts’ (1957) 70 Harvard LR 422.
16. [1976] QB I.
17. (1957) 70 Harvard LR at 426.
18. TBCL (1st edn, 1978) at para 17.1.
19. [1973] Crim LR 656 at 660.
20. CL (5th edn, 1983) at 256.
21. The only answer to this is to argue, as do Buxton and Griew, that ‘attempt’ in the criminal law is a term of art and should not be affected by the natural meaning of the word.
22. For Moloney and wounding with intent see Bryson, Times (1985), 29 June; and Purcell, (1986) Times, 11 March.
23. Smith and Hogan, CL at p 225. Fletcher (op cit, p 444) argues that all inchoate offences require a ‘narrowly defined intent to consummate the ultimate offense’– see Thacker v Commonwealth (1922) 134 Va 767, 114 SE 504.
24. Or so it was assumed in Pigg [1982] 2 All ER 591.
25. Hobbs v Winchester Corporation [1910] 2 KB 471.
26. This is certainly the view of Glanville Williams; see CLGP para 199. Contrast Smith in (1957) 70 Harvard LR at 432.
27. CLGP para 199.
28. Notes on the 1981 Act in Current Law Statutes.
29. CL at 257.
30. [1957] 70 Harv LR at 430–431.
31. See Buxton's criticism of Smith in [1973] Crim LR at 662–3. In his article in [1957] 70 Harv LR Smith distinguishes in this context between ‘pure’ and ‘consequential’ circumstances.
32. Cf Deller (1952) 36 Cr App Rep 184.
33. Thus NB the test of whether D is ‘on the job’ (Glanville Williams, CLGP at para 207). Hogan in ‘The Criminal Attempts Act and Attempting the Impossible’ [1984] Grim LR 584 and (1986) 136 New LJ 267 says the principle of legality is infringed by conviction in such cases - eg attempting to handle stolen goods when the goods are not stolen. But all this demonstrates is that an element is missing from the complete crime – which as has been shown earlier is the case in all attempts! See on this Glanville Williams (1986) 136 New LJ 303.
34. See, for instance, Smith and Hogan (CL p 264) on example 1:‘It would be absurd … to prosecute the man who has had intercourse with a sixteen-year-old-girl’.
35. [1973] Crim LR at 660.
36. See Anderton v Ryan, note 1, supra.
37. (1949) 33 Crim App Rep 102.
38. Smith (1957) 70 Haw LR 435.
39. [1984] Crim LR 584 at 590, note 15. Hogan does not press this argument in his article in (1986) 136 New LJ 267. The same argument can of course be applied to Haughton v Smith [1975] AC 476.
40. [1986] 2 All ER 334 at 337. This is no mere semantic quibble. There is surely a difference between (1) something which is an end in itself, (2) something which is a means to an end (as in Shivpuri), and (3) something which is merely believed to be so (as in Anderton v Ryan). Semantics comes in when we try to find words (intention, desire, purpose etc) to express this difference. The question is partly a philosophical one: see the articles cited above at note 12.
41. Ibid (emphasis in original).
42. Ibid at 344.
43. (1976) 92 LQR 569.
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