More than merely preparatory notes on the law of attempt

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.