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Published online by Cambridge University Press: 20 July 2015
The relationship between possibility / impossibility and attempts is complex. Accounts of the relationship are often marked by a confusion that serves to distort our understanding of the nature of attempts as such. It will be argued below that impossibility is irrelevant to an understanding of attempts. This is not just to say that impossibility should not affect our view of how blameworthy certain defendants are. It is rather to say that the ‘impossibility’ referred to in the context of attempts is just not aboutattempts at all. In contrast, possibility is relevant to an understanding of attempts but its relevance is found to be universal and no normative distinctions among attempts can be made on the basis of possibility. If it can be shown that impossibility is a concept that does not belongtoattempts then it follows that attempts which are treated as different to ‘central cases’ of attempts in virtue of impossibility either, (a) are not different at all or, (b) are different for reasons other than impossibility. If some attempts belong to category (b) then it may be considered that the equal blame that is ordinarily taken to survive impossibility, does not survive these other reasons.
I am grateful to Andrew Halpin, David Prendergast, Stuart MacDonald and to an anonymous referee for very helpful suggestions.
1. [1985] A.C. 560. Here the appellant bought a video recorder believing it to be stolen when in fact it was not stolen. By a majority the House decided that this did not constitute a criminal attempt. Lord Roskill used the notion of an ‘objectively innocent’ act to distinguish this from what would be a ‘guilty act.’ The decision was famously overruled in R v. Shivpuri [1987] A.C. 1 where Lord Bridge found on reflection that the ‘concept of “objective innocence” is incapable of sensible application.’
2. [1975] A.C. 476 Again here the goods that the defendant believed to be stolen turned out not to be stolen at the relevant time. This was deemed not to constitute a criminal attempt.
3. See Hart, H.L.A., ‘The House of Lords on Attempting the Impossible’ in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 367 CrossRefGoogle Scholar and Williams, G., ‘The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes’ (1986) 45 Cambridge L. J. 33.CrossRefGoogle Scholar
4. The, misguided, tendency to work backward from ‘what the facts turned out to be’ to determine whether what was attempted was possible or not has led some to assume that a considerable conceptual problem arises: ‘Why impose criminal liability for something that cannot be a crime. Why impose liability for attempting to steal a violin that is not there?’ To resolve this problem, the category of ‘impossibility’ has been sub-divided and attempts are made to clarify why some of the sub-divisions are not really ‘impossibility’, why others attract blameworthiness notwithstanding ‘impossibility’, and why still others are not attempts at all in virtue of impossibility and no blame should be attached. See A. R. White, e.g., who suggests that unsuccessful attempts have possible or impossible goals and that some examples commonly thought to be ‘attempting the impossible’ actually have possible goals. In this category he includes an attempt to poison another using an innocuous substance, and lifting a rock that is too heavy. In the ‘impossible goals’ category he includes stealing one’s own umbrella, picking an empty pocket, and killing a dead man. However, in the latter category the goals are misrepresented for in such attempts the actor’s goal is to steal someone else’s umbrella, or to pick a full pocket or to kill a living being. Furthermore, the distinction between the two categories does not seem to be sustainable. It is no more possible to poison someone with an innocuous substance than it is to pick an empty pocket ( White, A.R. ‘Attempting the Impossible’ in Misleading Cases (Oxford: Clarendon Press, 1991) 11, at 23-24).Google Scholar See also Fletcher who distinguishes between apt and inapt attempts and suggests that there should be no liability for the latter category. Shooting at stumps (rather than the intended victim) and poisoning with sugar (rather than poison) are said to be inapt in that they ‘objectively’ are unrelated to the intent whereas there is said to be nothing inapt about the empty pocket cases. Fletcher argues that apt attempts differ from inapt attempts in their propensity to generate harm. However it is difficult to see why harm is generated by attempting to steal from a pocket that turns out to be empty and not by attempting to poison with a substance that turns out to be harmless. Fletcher, G.P., Rethinking Criminal Law (Boston, MA: Little, Brown, 1978) at 3.3.3.Google Scholar Hart drew distinctions between attempts that fail because of interruption, e.g., being caught by the police and those that involve insufficient means such as a poor aim, an inadequate dose or too weak a jemmy and those where there is a missing object, such as the ‘empty pocket’ or violin-type cases. Of course, as Hart notes, whilst there may be an ontological truth in these distinctions there is no relevant normative distinction. See also Haughton v. Smith (supra note 2) and Smith, J.C., ‘Attempts, Impossibility and the Test of Rational Motivation’ in Gower, L.C.B., ed., Auckland Law School Centenary Lectures (Auckland NZ: Legal Research Foundation, 1983) at 25–44 Google Scholar (www.lareau-law.ca/attempt_.html) for a summary of various common law distinctions associated with attempting the impossible.
5. See supra note 2 at 490.
6. Supra note 2.
7. Hart notes that the accused in such cases does not really complete his (intended) act at all, ‘For if a man intends to take an umbrella belonging to another and what he does is to take his own umbrella plainly he has not done all that he intended to do.’ Hart, supra note 3 at 384.
8. There is a distinction between complete attempts where the accused has done everything but achieve the desired end because he misses his target say, and incomplete attempts where the accused is, e.g., interrupted before the last acts. However, this distinction has no particular bearing on ‘impossible’ attempts and any normative difference is minimized by the requirement that acts go ‘beyond the more than merely preparatory.’ Having advanced thus far the defendant’s acts are treated as evidence that his commitment to the final act is absolute. For this reason the incomplete and complete attempter can be considered to be equally blameworthy. The Law Commission, in its recent consultation paper on ‘Conspiracy and Attempts’ (Consultation Paper No 183), proposes that ‘Section 1(1) of the Criminal Attempts Act 1981 should be repealed and replaced by two separate Inchoate Offences, both of which would require an intention to commit the relevant substantive offence: (1) an offence of criminal attempt, limited to last acts needed to commit the intended offence; and (2) an offence of criminal preparation, limited to acts of preparation which are properly to be regarded as part of the execution of the plan to commit the intended offence.’ The offence of ‘criminal attempt’ will cover situations where the defendant has done or is doing the last acts, and it seems to be somewhat broader than ‘complete attempts.’ The second offence will not extend the actus reus of ‘attempts’ (16.19) as currently defined nor will it attract lesser penalties. Nonetheless by avoiding the term ‘attempt’ and through providing an illustrative list (and alongside the support for ‘ Woollin’ intention), it is thought that the new offence may result in a broader application of the law. It is envisaged that the proposed new offence would e.g., cover defendants in cases like R. v. Campbell (1990) 93 Cr. App. R. 350 Google Scholar and R. v. Geddes (1996) 160 J.P. 697.Google Scholar
9. Duff refers to an apparent distinction between intrinsic and extrinsic possibility: ‘It is intrinsically possible to steal by putting my hand into another’s pocket; but given the contingent fact that this pocket is empty, it is extrinsically impossible to steal by putting my hand into it. By contrast, it is intrinsically impossible to handle stolen goods by handling non-stolen goods, or to kill by witchcraft.’ The distinction, as Duff notes, is not a good one. (See Duff, A., ‘Impossible Attempts’ in Criminal Attempts (Oxford: Clarendon Press, 1996) 76 at 83-84.Google Scholar) Indeed the distinction can be said to rely entirely on what is arbitrarily included after the word ‘by.’ For example, merely by framing the sentences differently it can be claimed: ‘It is intrinsically impossible to steal by putting my hand into another’s empty pocket’ or for that matter ‘it is intrinsically impossible to steal by being caught.’ In all of these cases alike the reason for failure forms part of the facts by which the attempt actually occurs. There is no principle which favours the inclusion of the reason for failure in the description of some attempts and not others.
10. See text at 53-59, below.
11. See text at 59-61, below.
12. Aristotle examines the relationship between contradictories and possibilities. The statement “tomorrow there will be a sea battle” and its negation “tomorrow there will not be a sea battle” have no determinate truth value today yet the disjunction: “either tomorrow there will be a sea battle or tomorrow there will not be a sea battle” is true. (The notion of the battle at sea is used a number of times in ch. 9 of De Interpretation.)
13. Halpin notes the relevance of ‘yetness’ for potentialities. For things that actually exist we can claim ‘either p or ~p.‘ In the case of potentialities we can claim, ‘neither p yet nor ~p yet’ but not ‘neither p nor ~p. ‘ Halpin, A., Reasoning with law (Oxford: Hart, 2001) at ch. 5.Google Scholar
14. White notes that there are those who claim that ‘ … to do the impossible cannot, since it is impossible to do the impossible, be a crime, and that it cannot be a crime to attempt what is not a crime…’ See White, supra note 4 at 13. This position misses the point that in doing what turns out to be impossible ‘the impossible’ defendants are not attempting the same. Rather they are attempting the possible (represented by the object of their intention). The possible in turn is a crime.
15. Hart, supra note 3 at 381.
16. See text at 59-61, below, for an explanation of why it is availability to the attempter that matters.
17. Note the implications of the ex post perspective for successful ‘attempts.’ If the accused manages to steal £25 rather than the £20 he believed to be present in the pocket of the victim, it cannot be said just before the offence becomes complete, that the defendant is attempting to steal £25. Such a statement just makes no sense from the perspective of the defendant who subjectively is attempting to steal £20. Similarly, if the accused is apprehended just before opening the empty violin case, the statement, ‘I am attempting to steal a violin that is missing’ not only would be peculiar, but is just not available to the defendant.
18. See Williams, supra note 3 at 42.
19. Duff notes that for some radical subjectivists ‘the fault element required for an attempt should be just the same as that required for the relevant complete offence; that attempts should require intention only if, and to the extent that, the offence “attempted” requires intention’ (supra note 9 at 171). It is implicit in the analysis here that this ‘radical’ subjectivist view is rejected, not because it is not entailed by subjectivism but because it is not entailed by ‘attempt.’ Trying entails that the ends are fixed by one’s intention. This leaves open the question of whether there ought to be culpability for taking a risk that may have, but did not, result in the materialisation of a prohibited and foreseen end.
20. Duff distinguishes between the objectivity that concerns what ‘actually happens’, and the objectivity that refers to what a ‘reasonable person would believe or expect’ and says: ‘[subjectively, the would-be killer by witchcraft is trying to kill; objectively, he is not, since any ‘reasonable person’ would know that this is not a possible method of killing.’ See Duff ‘Objectivist Themes and Variations’, supra note 9 at 194. These senses of objectivity are relevant to an account of how attempts relate to the external world; the latter, e.g., may account for what it is reasonable to believe about trying, but both the objectivities are irrelevant to an account of what substantively is attempted; the former is irrelevant because it can account for only what actually happens not what is attempted. The latter is irrelevant for the views of another in respect of my trying just cannot alter the trying that is fixed by me.
21. Hart notes the dual role of intention: ‘ … intention plays a double role: it fixes what is to count as actus reus and is also an element of mens rea required for liability.’ See Hart, supra note 3 at 387.
22. Section 1(1) of the Criminal Attempts Act (U.K.), 1981, c. 47 refers to doing a more than merely preparatory act. This tends to suggest that there cannot be liability under the heading of attempts for omissions. It is proposed by the Law Commission in their recent Consultation Paper on ‘Conspiracy and Attempts’ that such liability should be possible: ‘Suppose, however, that someone overhears D admitting that he or she is endeavouring to starve his or her baby to death and has already denied the baby food for a couple of days. We believe it would be wrong if D could avoid liability for attempted murder in such circumstances, but it may well be that this is the present legal position’ (supra note 8 at 12.24). The notion that we can ‘try’ without being physically active provides additional support for the Law Commission’s proposal. However, it must be noted that the Law Commission is unconvinced that the notion of ‘trying’ can accommodate those instances of setting out to achieve a criminal purpose that warrant criminal culpability. We may be culpable, according to the Law Commission, even though, according to its understanding of tried we have not tried.
23. See A. Duff, ‘Action, Basic Action, and the ‘Act Requirement’’ (supra note 9 at ch. 9) and ‘Acting, Willing and Trying’ above (ibid. at ch. 10) for a comprehensive discussion of what action can be said to involve. Duff notes that volitionists classically claim that volition is ‘ “the means by which I cause my body’s exertion when I voluntarily exert it”: it is a mental activity or process directed towards, and typically causing, a change or bodily exertion.’ He observes the difficulty they have in overcoming the objection that cause and effect be identifiable independently of each other. Volitionists will argue sufficient independence is demonstrable, e.g., where an ‘anaesthetized person wills the raising of her arm, but it does not rise: she can know … that she has made that volition, without knowing that her arm has risen’ (supra note 9 at 274-75). However, the anaesthetized patient will not know she has made that volition without being practical and this means without trying to raise her arm. (Trying itself restores the lack of independence). As Duff says, volition is, itself, practical: ‘We do not discover that mental states which we can independently identify as volitions cause the movements willed since to identify a mental state as a volition is already to identify it as a way of producing the movements corresponding to its content’ (supra note 9 at 275). Willing involves, at least trying, for it entails setting ends of action and one cannot really set ends of action without trying (however minimal the trying). I do not really believe that I have willed something until I have tried. Willing may be felt as willing when one thinks a decision is near, when making a decision involves weighing competing considerations, particularly moral considerations and of course it is felt when failure ensues. However for the most part willing/trying is so natural to being human that its processes make trying and the actions (physical or otherwise) that constitute trying seem untried; picking up a drink at a pub whilst talking to friends does not appear as trying or being willed; it just happens but it just happens not because of the absence of willing but because it is itself a representation of will. To human beings control comes naturally to the extent that willing is felt as being in control rather than as choosing to exercise control. Duff claims that doing has a priority to trying; (in respect of basic actions) we can try to do only what normally we do without failing and therefore trying is an action which fails. But it could equally be said we can try to do only what normally we do without failing (or what we think we can do without failing) and therefore what normally we do without failing entails (but is not caused by) trying, whether we know it or not. In other words, the priority of doing over trying need not establish that ‘doings’ do not involve ‘tryings’, though it does establish that trying does not cause basic action. Ultimately Duff makes the telling observation that what is missing from reductivist accounts of action as consisting essentially in bodily movements is the dimension of meaning and purpose which is crucial to actions as they figure, and are significant, in human life and thought.’ Duff, ‘Action, Intention and Responsibility’, supra note 9 at 296.
24. Duff, ‘Action, Intention and Responsibility’, supra note 9 at 299.
25. Supra note 2.
26. Fletcher says that ‘The only way to determine whether the actor is attempting an act that includes a particular circumstance, X, is to inquire: what would the actor do if he knew that X was not so? If he would behave in precisely the same way, we cannot say that his mistaken belief in X bears on his motivation; and if it does not, we cannot say that he is attempting to act with reference to X.’ Fletcher, supra note 4 at 163. However, such a test would rationally have to rule out liability for substantive thefts too; any thief would (normally) choose to appropriate the property if it had turned out to be his own. But of course we would not hesitate to say that there is a criminal purpose involved in theft. The existence of a criminal purpose cannot depend on whether the property turns out to belong to the accused (in an attempt) or someone else (in a substantive offence).
27. Duff’s suggestion that ‘[a]n “intent to commit an offence” is an intention such that the agent would necessarily commit an offence in carrying it out can usefully be applied to distinguish a legally relevant intention/purpose among the various intentions/purposes present. Duff, ‘The Fault Element in Attempts’, supra note 9 at 22. It seems though, contrary to Duff’s claim, that the test can be satisfied in Anderton v. Ryan. Duff thinks that Ms Ryan’s belief that the goods were stolen is insufficient to ground an intention to handle stolen goods. He draws an analogy with ‘intention to kill the Prime Minister’ and notes that the proper analogy is to an instance where: [c] ‘It is no part of John’s intention that the person he shoots should be the Prime Minister: but he mistakenly believes that she is the Prime Minister…. In this case, it is part of neither the content nor the context of John’s intention that the person he shoots is the Prime Minister.’ Duff says that intention is present in [a] where ‘The person at whom he shoots is in fact the Prime Minister (and he knows this fact)’ because here the fact that John’s target is the Prime Minister is presented as part of the context of his intended action of killing.’ However, in this case, it is arguably in virtue of the fact that John believes in the context that we are willing to attribute it to his intention; belief rather than context accounts for the attribution. (If the man is the Prime Minister and John believes him to be the President of France (who he intends to kill), it is still part of the context that the man is the Prime Minister but not part of John’s beliefs and not part of his intentions either.) So, e.g., if John (who just wants to shoot something) realises that the object he is shooting is a human target, he intends to shoot a human target, even though this is in no way part of his purpose ([a] above). John’s intentions cannot be regarded differently just because it turns out that he is mistaken and the target is inanimate after all ([c] above). People who shoot at targets believing them to be human (and not caring whether this is the case) intend to kill, even though the targets are not humans. See Duff for a full discussion of these nuances in ‘Objectivist Themes and Variations’, supra note 9 at 208.
28. There may in fact be a more ‘general’ attempt involved but for our purposes the criminal end sets the outermost level of generality.
29. There is much debate about whether we ever do attempt what we know to be impossible. For example some will categorize attempts to construct counterexamples to Goldbach’s conjecture, (to find out why the same is impossible and to prove the theorem) as attempting the impossible. Similarly, it may be considered that a teacher who believes that water cannot be boiled at 100 C at 12,000 ft elevation, but tries to do so in order to demonstrate to students that it cannot be done, may be attempting the impossible. However, we may expect that the teacher would quite readily concede, ‘I am not of course actually trying to boil water here, i.e., I am not trying to do it. I am trying to show how it cannot be done, by actually failing to do it. Here the impossibility actually makes the relevant feature of the act successful; in trying to show that it is not possible to boil water in these circumstances, the teacher fails to boil water and therefore succeeds in doing what she tried to do. We have a complete act rather than a mere attempt. In respect of Goldbach’s conjecture the attempt is to find out what makes counter-examples impossible and what makes the theorem true—these actors are just not trying to ‘do’ the impossible; indeed they are committed actually to not doing it. It is clear, however, that if we do attempt the impossible it is in virtue only of such knowing and unusual cases as these.
30. The Law Commission noted that ‘[i]n the ordinary course, we think that discretion in bringing a prosecution will be sufficient answer to any problems raised by such unusual cases; but even if a prosecution ensued it may be doubted whether a jury would regard the acts in question as sufficient to amount to an attempt.’ (Law Com. N0.102) This is unsatisfactory for two reasons; (1) It does not explain why there shouldbe any prosecutorial discretion and (2) it almost asks the jury to use their common sense and disregard the principle of the Commission’s report which is that defendants are to be judged on the basis of facts as they believed them to be. If sticking pins in dolls did cause death, as the defendant believed, there would naturally be an attempted murder according to the Commission’s own reasoning. If the reasoning is to be dispensed with in certain circumstances then an explanation, based on principle, is required.
31. Williams, supra note 3 at 42 notes that prosecutors ‘do not usually bring absurd charges’ but it is unclear why some ‘impossible’ attempts are to be regarded as absurd and not others. Williams cites the example of ‘a man who has unlawful sexual intercourse with a girl of 18 believing her to be 15’ as an example of where prosecution would be absurd. However, despite Williams’s best efforts to show the contrary, it is just not clear why such a prosecution would be absurd. There is something inherently unsatisfactory in the claim that these are attempts like any other yet no prosecutions should ensue. Duff notes the lack of consistency in the view that ‘these are attempts’ but should not be punished’: ‘Subjectivists are often unhappy with such implications, although it is not clear how they can consistently resist them’ (supra note 9 at 172). He surmises that the subjectivists’ unhappiness with the ‘implications of their avowed principles … reflects objectivist intuitions which conflict with their theoretical commitments’ (ibid. at 202). Subjectivism does need to and can, in this author’s view, account for the attribution of liability to or the withholding of liability from so called ‘absurd’ prosecutions but its ability to do so has been hampered by attempts to understand absurdities by reference to impossibility.
32. Throughout the Law Commission’s recent consultation paper (supra note 8) there is scepticism about the usefulness of the concept of ‘trying.’ The implication of this scepticism, alongside the desire not to extend the scope of the present law (‘the new offence of ‘criminal preparation’ would not cover less proximate preparatory steps”: 16.19) is that it is to be deemed possible to perform ‘acts of preparation which are properly to be regarded as part of the execution of the plan to commit the intended offence’ without trying to commit the offence. However, even in ordinary linguistic usage, if I begin to execute a plan, I am ‘trying.’ Furthermore, it cannot be claimed that I truly do execute a plan to commit an offence that really is intended without trying. Trying is central not just to attempts as such; it is central to the rationale for punishing those who do not complete offences but who go some way toward advancing their intention to do so. We can only say that an actor is culpably committed to a prohibited end when minimally he has tried to bring it about. Should this cause us to revise the ordinary usage of ‘attempt’ or ‘try’ then so be it. The question then to be resolved is how advanced the ‘trying’ needs to be in order to demonstrate that commitment to the prohibited end can be deemed to be ‘final.’ ‘Executing a plan to commit an intended offence’ is trying (it is not ‘trying to try’ and it is not doing something in itself distinct from trying). The Law Commission, arguably, does not need to view trying as an obstacle to its proposals (though if the relevance of trying is acknowledged an important rationale for the proposals, falls).
33. Ashworth notes that ‘ … there is little reason for reducing the punishment of the complete attempter, although there is some reason for recognizing the possibility that the incomplete attempter might yet desist.’ Ashworth, A., Principles of Criminal Law (Oxford: Oxford University Press, 2006) at 447.Google Scholar Hart says ‘ … if the punishment of unsuccessful attempts to commit crimes is morally justifiable at all, exactly the same deterrent and retributive justifications are available in the cases of impossibility as in the ordinary cases of attempt. The accused in the impossibility case having done his best to implement his intention to commit a crime is just as much deserving of punishment as the accused in the ordinary case … ‘ (supra note 3 at 388).
34. There is a rich literature in the field of ‘moral luck.’ Equivalence theorists take the view that blameworthiness reflects not consequences but states of mind in respect of actions performed and that there is nothing exculpatory in the mere fact that a desired consequence is, by luck, avoided. Non-equivalence theory holds that culpable actions with a result are, for various reasons, not morally equivalent to the same actions where the result is avoided. From this perspective, the substantive offender is seen to be more blameworthy than the attempter and thus deserves, necessarily, a harsher punishment. Those who may be described as equivalence theorists include Andrew Ashworth, Lawrence C. Becker, and H.L.A. Hart. Those who may be described as non-equivalence theorists include Michael Moore, Ken Levy, Judith Andre, and Antony Duff. For recent contributions to the debate on moral luck see, e.g., Enoch, David & Marmor, Andrei, ‘The Case Against Moral Luck’ (2007) 26(4) Law & Phil. 405 CrossRefGoogle Scholar; Levy, Ken, ‘The Solution to the Problem of Outcome Luck: Why Harm is Just as Punishable as the Wrongful Action that Causes it’ (2005) 24(3) Law & Phil. 263 CrossRefGoogle Scholar; Donnelly, Bebhinn, ‘Sentencing and Consequences: A Divergence between Blameworthiness and Liability to Punishment’ (2007) 10(3) New Crim. L. Rev. 392.Google Scholar
35. ‘Luck’ may account for some of what we can say about impossibility but, alone, it is not nearly sufficient to capture its nature. For example, it may be a police substitution that accounts for the presence of sugar (rather than heroin), not luck; it is simple physical impossibility that accounts for the attempter’s inability to kill by voodoo, not luck. In both instances the defendants are in a sense lucky to have avoided consequences that they fully set out to achieve but what differentiates the debate on liability for ‘impossibility’ from liability for attempts per se is the question whether ‘impossibility’ is itself morally significant.
36. See Duff (supra note 9 at ch. 6.1) for a discussion of these liability issues under the ‘intent’ and ‘belief’ principles both of which indicate that from a subjectivist perspective (a) attempts should be punished (b) impossible attempts should be punished and (c) attempters should be liable to the same punishment as substantive offenders.
37. Indeed, Becker suggests that the relevant social harm is the same in an attempt as in a complete offence so that the offenders may be to blame for the same harm. See Becker, L., ‘Criminal Attempts and the Theory of the Law of Crimes’ (1974) 3(3) Phil. & Pub. Affairs 262.Google Scholar
38. See Ashworth who notes that even from a consequentialist perspective, ‘ … the defendant was trying to break the law, and therefore constitutes a source of social danger no less (or little less) than that presented by ‘successful’ harmdoers’ (supra note 33) at 446.
39. Duff proposes a test based on the apparent possibility of success: ‘Perhaps then what matters is not the actual danger posed by the defendant’s actions but the ‘apparent danger’, as it appears to outside observation.’ This raises the issue of how much knowledge we are to attribute to the viewer; what are we to regard as being ‘apparent’? The appropriate question according to Duff is whether the reasonable person would have thought that the defendant had the ability to commit the crime, that her actions were adapted to that end? But this raises the possibility that the really inept defendant escapes liability just in virtue of her ineptitude and despite her willingness to commit the same offence by more effective means. Duff in ‘Impossible Attempts’ says: ‘What will acquit the defendant is … that, given the circumstances apparent to any reasonable observer, it was impossible that A should do X by doing Y’ (supra note 9 at 82). This approach seems to ignore what reasonably may be believed by the defendant. A defendant who is given an ordinary pistol by a ballistics expert and told that it is state of the art with a range three times that of its nearest competitor is surely dangerous when he shoots far out of range, but he is not ‘apparently’ dangerous. Of course such a defendant may be made apparently dangerous by attributing to the observer knowledge about what the defendant is told but this type of adjustment just represents a circular attempt to define ‘apparently’ by reference to our pre-existing account of dangerousness. If a defendant attempts an offence by a peculiar means the reasonable observer will have no means to determine whether X is impossible or not, however impossible it ‘actually’ is. It is unsatisfactory to found culpability on the basis of what is apparent, where the offence is, by its nature, subjective.
40. Note that the potential for future success may indicate the presence of harmfulness though the non-existence of such potential (because say the exclusive object of a potential theft has been destroyed) does not, of necessity, entail the absence of harmfulness.
41. See supra note 29.
42. The argument might be made that the exculpatory role of these factors allows constitutive luck to play a role in determining liability. It is a matter of luck that the actor has a belief system which leads him to believe that sticking pins into a voodoo doll can kill the victim. It is not possible to examine the detailed arguments on moral luck here. However, it may be suggested by way of an initial response that here luck explains the nature of the cause of the distinguishing factor and does not constitute the distinguishing factor. It may be a matter of luck that the actor is irrational but he is no less irrational in virtue of that. It is then his irrationality in the criminally relevant moment that counts, not luck.
43. The possibility that, generally, liability for attempts may be founded on notions of risk (on the notion of being sufficiently harmful regardless of outcome) cannot be given adequate consideration in this paper but it is worth mentioning the analogous discussion in the realm of tort law where exposure to risk may be viewed as wrongful in itself. See Steel, J., Risks and Legal Theory (Oxford: Hart, 2004) at part 2, ch. 3.2Google Scholar for a discussion of the various theoretical approaches to risk in tort.
44. Smith says: ‘If the actor is prepared to kill by stabbing the image, he may well be prepared to kill by more conventional means when he finds out that pin sticking does not work’ (supra note 4 at 37). Smith may be correct but the point is that where the actor is not prepared to kill by more conventional means because the decision to ‘kill’ stems from belief in voodoo in the first place, there should be no liability for attempted murder. There may however be good grounds for censuring the behaviour in some other way.