Being limited to only one-thousand words on this vast topic proved tight. This paper addresses the main justifications for punishing attempts.
'Inchoate crimes cause no direct harm to victims. Therefore
it is strange that we punish such behaviour.' Discuss in relation to the law of
attempt.
More than
merely preparatory notes on the law of attempt
Inchoate
offences are incomplete crimes. Consummation of the crime may fail for a number
of reasons (miscarry, prevention, change of mind, impossibility) and since
these offences are not concerned with harm caused by the defendant (indeed in
many cases there will be none) the attribution of criminal liability and,
hence, punishment stands in strong need of justification. This paper will
briefly examine the common justifications for punishing attempts and provide
some examples where these are insufficient.
Moral
blameworthiness
The
Law Reform Commission noted how “the moral culpability of the author of a
failed attempt at a crime can be on a par with that of the successful criminal”.
It may be merely a matter of luck that the attempter failed to harm the victim.
In these instances conviction for an inchoate offence promotes equality of
treatment between those whose conduct accomplishes criminal results and those
whose similar conduct fails because of a fortuity (T.K.H. Ill, ‘Reforming the
Law of Inchoate Crimes’ (1973)). “The attemptor of murder not escape liability
solely because of fortuitous non-occurrence of death” (Law Reform Commission).
Furthermore,
there are practical (consequentialist) advantages to punishing such morally
blameworthy people in absence of harm: namely rehabilitation and incapacitation
of these wrong-thinking individuals who might otherwise harm society. The
deterrent effect is also a compelling argument. In any case it is clear that
those who attempt to commit a crime but, for reasons beyond their control, fail
are just as morally blameworthy as someone who succeeds in his attempt. Herring
refers to these as complete attempts.
There
are logical limitations to the extent of attempts which may be justified by
moral blameworthiness: if punishment is justified on the basis of moral
blameworthiness alone then there should be an exception for punishing attempts
where the defendant (of his own locomotion) abandons the attempt. A person who
abandons his attempt is not as morally culpable as one who chooses to complete
it, however there is currently no authority to suggest that he would be
acquitted of an attempt. This is inconsistent with the premise of punishment for
moral blameworthiness.
Here
it is appropriate to draw a distinction between two types of attempts: complete
attempts and incomplete attempts. A complete attempt is committed when the
defendant did everything within his power to commit the substantive offence
i.e. not only were his actions more than merely preparatory, they were so
extensive that they would have brought the offence to completion (e.g. D aims
his gun at V, pulls the trigger but V ducks at the last minute and so avoids
the bullet). In such cases we can be sure that the defendant would have
committed the crime and, on the moral blameworthiness principle, it would be
appropriate to punish him. However, there is another breed of attempt:
incomplete attempts, where the crime did not complete because it lacked some
action on the defendant’s part. This may be either because he had not performed
the act yet or because he was prevented (e.g. by a policeman holding his arm
before he shot the victim). In these cases the court cannot be certain that the
defendant would have continued the crime to completion. Furthermore the
incompleteness may demonstrate a wavering attitude or lack of determination to
commit the crime, in which case punishment for moral blameworthiness is
inappropriate. It may also demonstrate the defendant’s ineptitude. In each of
these cases it is unnecessary to incapacitate the defendant to protect society
(he has shown that he either does not have the disposition or the aptitude of a
dangerous criminal).
Harm
The
foremost authority advocating the irregularity of punishing inchoate offences
is Mill’s harm principle: (simply) that acts which cause harm should be
punished. Clearly the punishment of attempts which cause no harm to the victim
sits uncomfortably with this principle. However, there are some attempts which
(despite their failure) do cause harm to the victim. It is justified in the
harm-centred conception of the criminal law to punish these. The Law Reform
Commission comments on this: “If a person learns of an attempt on their life
they will feel shock and fear and so on. They have been in a real sense ‘harmed’.”
Creation
of risk
There
is an assumption that attempts result from the defendant creating a risk that
the substantive offence would be committed (and not consummating it).
Punishment for creation of this risk is another compelling argument.
“...attempting a crime risks that crime being completed and that in striving to
prevent that crime it should be sought to deter the attempting of the crime
whether such an attempt will prove successful or not” (Law Reform Commission) Thus,
if the aim is to prevent certain types of harm, then it is rational to prohibit
risking that harm as well as causing it. If the law of attempts were to be
abolished it would act as an incentive for people to try to commit crime and the
risk of crimes being consummated would peak.
However,
risk-minimalisation does not provide complete justification for all attempted
crimes: it follows that if attempts causing a risk of the crime are punishable,
then attempts which do not create a risk of crime (i.e. impossible crimes which
due to the defendant’s ineptitude, legal or physical impossibility could never
consummate) should not attract criminal liability. The criminal law’s main aim
is crime-minimalisation; there is no need to punish acts that do not result in
crime.
Practical
efficacy
Practical operation of the police is another compelling argument. Criminal liability
should be attached to attempts so that the police are permitted to arrest
someone who is about to commit an offence, rather than having to wait until the
offence has been committed (and the harm caused). But we must also consider the
consequences of this practice. A person who is in the process of committing a
crime has no incentive to abandon his attempt as he will nevertheless attract
the same level of culpability as had he completed it (e.g. If D shoots at V and
misses, he may as well have another shot!). This argument has been criticised
as it presumes that all criminal actors have knowledge of the criminal law (similar
to that of a second-year law student).
Conclusion
Each
individual justification for punishing attempts does not conclusively justify
punishment for all forms of attempt. However, collectively the justifications
successfully provide arguments for punishing all of the aforementioned types of
attempt. There is strong opinion that in practice punishments for an attempt
should, nevertheless, be less severe than those for substantive offences. This
is perhaps a more arguable area of the law of attempts, to be considered in a
later paper.
