Glanville Williams, The Lords and The Impossible Attempts

The Lords and Impossible Attempts, or Quis custodiet ipsos custodes?
Author(s): Glanville Williams

Source: The Cambridge Law Journal , Mar., 1986, Vol. 45, No. 1 (Mar., 1986), pp. 33-83
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
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Cambridge Law Journal. 45(1) March 1986. pp. 33-83
Printed in Great Britain
THE LORDS AND IMPOSSIBLE ATTEMPTS, OR

QUIS CUSTODIET IPSOS CUSTODES1
Glanville Williams
Stephen J. once said that the drafting of a statute should a

degree of precision which a person reading in bad faith
misunderstand; and it is all the better if he cannot pret
misunderstand it.1 The decision of the Appellate Committee
House of Lords in Anderton v. Ryan2 shows how difficult,
impossible, it is to achieve these objectives.
As this opening may indicate, the tale I have to tell is unflatter
the higher judiciary. It is an account of how the judges invented
based upon conceptual misunderstanding; of their determina
use the English language so strangely that they spoke what by no
criteria would be termed untruths; of their invincible ignorance
mess they had made of the law; and of their immobility on the s
carried to the extent of subverting an Act of Parliament designe
them straight.
The subject has a double importance. Obviously, lawyers n
know what the present law is, and, if possible, what ideas lie beh
And the subject throws light (a disconcerting light) on the a
and competence of our final court—the Appellate Committee
House of Lords (miscalled the House of Lords, and for the ma
that miscalled a committee).
The discussion will first centre on the validity of Anderton v.
as an interpretation ofthe Criminal Attempts Act 1981, and th
to examine the present state of the law.
The Interpretation of the Criminal Attempts Act
It is important to understand the precise point of law under discuss

Although we commonly speak of impossible attempts, there was nev
a universal rule declaring that one could not in law attempt
Re Castioni (1891) 1 O.B. at 167.

[1985] A.C. 560.
33

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34 The Cambridge Law Journal [1986]
impossible. Impossibility on the ground of th

"ineptitude, inefficiency, or insufficient mean
approved by Lord Hailsham before the 1981 Act3) w
to a charge of attempt.4 A burglar who tries to break
insufficient tools cannot succeed, but the act has
attempted theft. Similarly an attempted assassin
straight is guilty of attempted murder.
However, the judges thought that an attem
committed in the absence of one of certain essentials of the full crime.
In particular, a would-be criminal was not guilty of attempting to kill or
wound a person, or to steal property, if the intended victim, or the
property aimed at, was not there. For instance, some judges said that a
person who stabbed a corpse believing it to be alive was not guilty of an
attempt to murder. Just as murder required a living person who was
murdered, so attempted murder required a living person who was
attempted to be murdered. For the same reason, some judges said that
if you shot at a post or an effigy thinking it was your enemy, and your
enemy was actually miles away, you could not be convicted of
attempting to kill your enemy.
Again, a pickpocket could not be guilty of an attempt to steal from
a pocket or other container that was in fact empty. Theft requires
property of another; here there was no property of another, so there
could not be an attempted theft. The last rule, commonly called the
empty-pocket rule, came to be satirically known as the "thieves'
charter." In short, the law was that one could not attempt to commit a
crime in respect of a missing object—some person or property that was
absent from the scene.
There was never any respectable reason for this rule. Not
infrequently it cannot be proved that all the ingredients of an offence
have been committed, but if the defendant is clearly shown to have
intended to commit an offence, and if he has gone very far towards
committing it (indeed, as is generally the case where a so-called
impossible attempt is in issue, has done everything he thought he had
to do, and failed only because he made a mistake), there is no reason
why he should not be liable—not for the full crime but for the lesser
crime known as an attempt. It is quite possible that such a person is a
more determined villain than one who tries to commit a possible crime
Roger Smith f 1975] A.C. 476 at 494C.

H. L. A. Hart, Essays in Jurisprudence and Philosophy (1983) 367 rccognises this rule, but seems
to me to overlook it at p. 389, where he takes as a siight advantage of the decision in Roger Smith
(to be discussed later) that it exempts the person who iries to kill by voodoo (sympathetic magic).
This is a case of attempting to commit a crime by inadequate means, and on any view of the law
there has never been any reason why it should not be punishable—unlikely as a prosecution may
be. If voodoo became a social menace it would have to be controlled, and the law of attempted
murder could well be used. For accounts of "voodoo deaths" resulting from fear see
correspondence in the B.M.J. in 1965.

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C.L.J. The Lords and Jmpossible Attempts 35
and does not reach the last stage; the latter, for all we know
have held his hand at the last, while the former did not.
The absurdity of the common law can be shown by a con
you tried to shoot and kill someone who was somewhat out
you were guilty of attempted murder, this being a case of
means; but if the victim was far enough away he ceased to be "t
so that it was not an attempt, even though you thought he w
and could be killed.
How far was "far"? Take a hypothetical in which you try to shoo
someone, but fail to hit him for two reasons: he is a bit out of range,
and you don't shoot straight. This is ineptness of means or failure o
skill and you are guilty of an attempt. Now put the intended victim in
totally different direction, and in the next field. In the next county. In
China. When does insufficiency of means turn into a missing object
The law not only required the drawing of arbitrary lines but wa
illogical. Murder requires a killing, but there can be an attempted
murder without a killing (shooting at someone and missing). Why
should it not be attempted murder to stab a corpse thinking it is alive?
Theft requires an appropriation of another's property, but there can be
an attempted theft although the culprit has not yet got as far as
appropriating another's property. (If he has, it will be the full offence
of theft, not just an attempt.) Why should there not be an attempted
theft where the theft fails because no property is there to be taken?
Professor Hart5 suggests an answer, not in terms of policy or logic
but as a matter of judicial psychology. Some crimes, like murder an
theft, are expressed with transitive verbs requiring, in ordinary
language, the existence of an object if a proposition in which they
appear is to be true. (You can say "He stole a cup" but not "He stole
cup that wasn't there.") From this the judges appear to have deduce
(though they did not express their reasoning in terms) that one coul
not say "He attempted to steal a cup that wasn't there."
Of course, as Hart points out, the deduction was invalid. Th
notion of attempt, unlike the notion of killing or stealing, does not (in
ordinary language) always require that the object in question should
exist; it need require only that the offender believedthat it did or migh
exist. There is no contradiction involved in saying "He tried to steal
cup, but no cup was there," or in saying "He tried to kill her, but sh
was already dead." These sentences are not nonsense, as it would be t
say "He tried to steal a cup, knowing it was not there," or "He tried to
kill her, knowing that she was already dead." Statements of attemp
imply what the doer intended to do, and what he believed to be th
case. They do not refer to what was actually the case, if the actor's
5 Op. cit., last note, pp. 377-378.

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belief was mistaken. In attempt, the putative facts a

all-important.6
As another example of the linguistic point, consider
that a man attempted to handle stolen goods. The sp
that the goods were stolen, but alternatively he may m
the man thought they were. If he means the latter it w
for him to say that the man attempted to handle what
stolen goods. At the same time, the shorter stat
attempted to handle stolen goods, can fairly be taken t
Properly understood, there is no contradiction in sa
attempted to handle stolen goods when the goods we
The idea that one cannot attempt what it is impossib
explain the rule that one can attempt by impossible me
illogical argument that the judges apparently constr
pocket cases can also be constructed for cases of imp
is illogical (self-contradictory) to say that he unlocked
that could not open it. Therefore it is illogical to say
unlock a safe with a key that could not open it." Of
We are now in a position to make a broad choice
competing theories of attempt that have found support
question is whether the law of criminal attempt is or s
the supposed facts (plus the defendant's effort to c
acting on the facts as he believed them to be), or wheth
should require all or some of the forbidden elements to
(in the case of future facts) potentially present. It will
have names for these two approaches, and l will call the
fact theory and the actual fact theory. There is
intermediate possibility of both theories being acce
rejected in part. Clearly, the putative fact theory is pre
generally.
The putative fact theory was always accepted in relation to defects
of means. If A attempted to shoot B with a gun he mistakenly thought
was loaded, the law went by his belief and he could be convicted of an
attempt. It was sometimes held that a mistaken belief was insufficient
to create liability for an attempt, but that was certainly untrue for
mistaken beliefs as to means.
Hart attaches some importance to a distinction between what is physically impossible and what is
logically impossible. Physical impossibility is, conceptually, worlds apart from illogicality. but I
doubt the utility of the distinction in relation to attempts, because it can so easily be a matter of
words. The "end" of killing a man is physically impossible if you are stabbing a corpse, but it can
equally be said to be logically impossible, since "killing a man" means ending the life of a person.
and a "corpse" means a body that is already dead. It is physically impossible to handle goods that
are not there, so it is physically impossible to handle stolen goods if no goods are there or if the
only goods there are not stolen; but the same propositions can be expressed in terms of logical
impossibility, given the meaning of the words used.

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C.L.J. The Lords and Impossible Attempts 37
In Roger Smith1 the Appellate Committee excluded

beliefs from liability for attempt, and so rivetted the actua
upon the law. At one time I would have said that this wa
technical point of view the worst decision on a point of
English court of standing in this century, but it must n
Anderton v. Ryan, which not only repeated its legal errors a
logic but repeated them in sublime disregard of a statute
exorcise them.
The particular decision in Roger Smith was that a person could not
be convicted of attempting to handle stolen goods if the goods had,
unknown to him, come into the possession of the police, so that they
ceased to be "stolen." This was an ordinary case of a missing
ingredient of the full crime, but the lords held that no attempt was
committed because, they said, the act was lawful. Of course, it was true
of every unsuccessful attempter that his act was lawful (unless it was
unlawful for some independent reason); but this was one of the things
that the lords could not see.
The Criminal Attempts Act

The common law on impossible attempts was impolitic and irrational,
and one ofthe principal objects ofthe Criminal Attempts Act 1981 was
to change it (following recommendations of the Law Commission8).
The reform was effected (or, as we must content ourselves with saying
since Anderton v. Ryan, was intended to be effected) by means of the
general structure of the Act and also by two express provisions.
The Act does not merely amend the common law of attempt,
leaving it otherwise intact. It abolishes that law, lock, stock and barrel,
replacing it with a statutory offence; and the only two conditions stated
for the commission of this offence are that the defendant must have
intended to commit a crime and must have done something more than
mere preparation in order to commit it. There is no third rule, that the
crime in view must be possible, or that some vital ingredients of that
crime must be present (such as the victim in attempted murder, or the
property in attempted theft), or that the attempt must have some
element of illegality apart from the law of attempt, or that the
attempter's failure must not have been due to his mistake of fact.
7 (1975] A.C. 476.

8 Law Com. No. 102. The commission's recommendation was at first rejected by the Home Office
(which did not show the courtesy, not to mention wisdom, of consulting the Law Commission
before arriving at its decision); but after a hearing by the Home Affairs Committee of the House of
Commons, at which evidence was given by the Law Commission. and in ils support by Professor
J. C. Smith and myself. the Home Office withdrew its objection. Itdidso with rather poor grace,
preserving its amour-propre in the face of defeat by subjecting the Law Commission's clear draft
Bill to amendments which made it slightly less pungent. and continuing its icy attitude towards the
commission by again failing to consult the commission on ils amendments. However, the Law
Commission was (rightly) satisfied that the revised draft was to the same effect as its own.

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These provisions should have been enough to

impossibility rule without more. But, for good me
hope of guarding the Act against the risk of reactiona
two further provisions were added. Section 1(2) pr
A person may be guilty of attempting to comm

which this section applies even though the facts ar
commission of the offence is impossible.
The rather flaccid phrase "may be" was evident

convey "shall be, if the other conditions of liabilit
does not give the courts a discretion to continue to
impossibility in some unspecified circumstances althou
conditions of liability are fulfilled. To confer that
more positive language would have been needed.
Subsection (3), which follows, does the same thin
means of a different formula, this time in imper
subsection is just another shot at the same target as su
cumbrous in its wording, but its clear effect is that in
you must take the putative facts, the facts as the d
them to be. Parliament has clearly opted for the putat
attempt.
The Law Commission recommended this leg
experience showed that the whole subject was a
minefield; so the only thing to do was to fence it off
out" notice, to prevent the courts from continuing
themselves, as they had done, and to save purposele
public purse in state-subsidised litigation. (To w
another object: to save law lecturers and studen
time on barren stuff like the matters treated in this ar
better things to do.)
Alas for law reform! Parliament proposes, bu
Committee disposes. In Anderton v. Ryan the law lords
forbidden ground like wilful schoolboys, as insoucia
dangers had never been revealed. They ignored the
and failed to give any clear meaning to either of th
quoted. The opinions of the majority of the court
Lords Roskill and Bridge, who concurred with each
majority lords concurring with both of them.
The facts of the case were substantially similar t
Mrs. Ryan bought a videorecorder at a bargain price, b
stolen. The prosecutor could not prove that the thing
charged Ryan with attempted handling. Her convic
by the lords. They followed Roger Smith, but in one m
facts of the two cases were different. Smith was eithe

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who stole the things or a professional handler. These are

law has to catch. The things had been stolen, and had only
become unstolen by failing into the hands of the police. R
other hand, was an ordinary person, though deficient in hon
many are, who merely succumbed to the temptation of b
and it was not proved that the thing had ever been stolen. P
got a good title to it by buying it. Some might have thought
maintain her conviction.
Whereas the public interest probably suffered in some degree by
the quashing of Smith's conviction, there was no pressing social need
to convict Ryan. Many otherwise law-abiding people will buy a
videorecorder, stolen or not, if it is cheap enough. Buying the
occasional stolen article is not a very serious crime, whatever the law
says. When the thing is stolen the owner loses it and it passes into the
possession of criminals. The owner may not be worse off because
someone buys it from the thief. If it turns out that the thing was not
stolen, or cannot be proved to be, the whole affair becomes too minor
to justify a prosecution for attempted handling, and Anderton the
prosecutor acted unwisely in pursuing the case as he did. He could
have let off Ryan with a caution. But it was not unjust to prosecute her
and for her to be convicted of the attempt to handle. She admitted that
that was what she thought she was doing.
The problem is to see how the decision can be reconciled with the
Criminal Attempts Act. The Act states only two conditions for the
commission of a statutory attempt (as was said before), and both were
fulfilled.
(1) Ryan obviously intended to commit the named offence of
handling stolen goods. Lord Roskill in effect acknowledged this.
Speaking of Roger Smith, he said: "Smith always intended to commit
an offence . . . it was not insufficiency of intention which led to his
acquittal."9 The facts of the cases were so similar that the same view
must have been taken of Ryan. One may add that if anyone were
minded to dispute the point of intention he would be faced with section
1(3).
(2) Then, no one can rationally doubt that Ryan did an act more
than merely preparatory to give effect to her intention—in fact she did
everything necessary to give effect to it if the article she believed to be
stolen was stolen. In Roger Smith Lord Hailsham said in effect that the
difficulty in the way of the prosecution was not the requirement of
proximity.10 If it be argued that you cannot go beyond preparation
(19851 A.C. at 579E. See more on this below at nn.48, 49.

[ 1975J A.C. at 492D: "I do not think that the present case turns on the test of proximity at all." It is
true, however, that Lord Reid stated that no act could be proximate to an impossible attempt. See
Hart's criticism, op. cit., p. 387.

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when your end is impossible, the answer is that ac

argument would repeal section 1(2), which provides t
be guilty of an attempt although the facts are such tha
of the attempt is impossible.
Both of the statutory conditions of liability being sa
logically impossible to quash Ryan's conviction, if the p
Act were loyally accepted. That in these circumstan
Committee declined to apply the Act was all the m
because the committee does not reconsider its own decisions in
criminal cases, however wrong they may afterwards appear t
unless it is required to change them by Act of Parliament. Sin
decision in Roger Smith was open to so many objections, set out in
Law Commission's Report, and later added to by Hart in his pow
essay,11 and since (as the Law Commission chronicled) there has
a significant shift towards the putative fact theory of attempt in
common-law jurisdictions,12 the reasonable observer might h
thought that the Appellate Committee (whose membershi
changed since Roger Smith) would have been glad to accep
Criminal Attempts Act as an opportunity to make a fresh start. Bu
reasonable observer would have underestimated the institutional
obduracy of the Appellate Committee—obduracy that may have bee
assisted by lack of acquaintance with the trend of legal thought. Lo
Bridge, it is true, referred generally to the "wealth of learned literatu
both before and after Roger Smith," and to the Law Commission
discussion; but with these words he dismissed all the writing on th
subject, and gave no indication of having himself profited by th
wealth available to him. An examination candidate who airily
informed the examiner that there was a large literature on the problem
he was asked to consider, and yet failed to answer any of the criticism
in that literature of the position he was assuming, would receive small
credit. Lord Bridge added that "if one thing emerges from th
literature on the subject, it is that there is no consensus as to what the
Mark Thornton in 25 Cr.L.Q. 301 suggested a qualification upon the "putative fact" approach
to attempts that I had propounded in a previous issue of the same quarterly. He proposed that
"proximity must be decided on the facts as the agent supposes them to be except for his belie
concerning proximity itself." As an instance of the exception, he wrote: "if the agent believes th
his act of voodoo will bring about the victim's death, then this belief is discountcd since it
(presumably!) a mistaken belief about proximity." My answers are: (1) the voodoo example i
mistake of fact, not a mistake as to the law relating to proximity. (2) It is a mistake as to the
adequacy of the means intended to be used, which the law has never regarded as standing in th
way ofa conviction of attempt. (3) Suppose the defendant fired at a person whom he believed to
within range, but who was out of range. His mistake is precisely analogous to that of the bclievcr in
voodoo, but Thornton would not call it a mistake as to proximity, surely.
11 Op. cit., n.4 above.
12 See Law Com. No. 102 pp. 38 etseqr, Hart, op. cit., n.4 above, p. 390. A Canadian Act in ve
similar terms to the Criminal Attempts Act was held by a Canadian court to cover facts like tho
in Roger Smith: Delaney (1982) 69 C.C.C. (2d) 276.

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law ought to be, let alone as to what the law is." As to "w
is," Lord Bridge was misinformed if he thought that th
substantially equal split of opinion. The great bulk of th
antedated the Act of 1981; as for the literature afterwar
member of the supposed rebel army of penmen was Prof
As to "what the law ought to be," Lord Bridge again show
to be out of touch with current general opinion. I doubt tha
ever much support for the decision in Roger Smith. Var
offered their own solutions, but none gained any accepta
the time the Act of 1981 was before Parliament there was most
certainly a massive consensus of informed opinion, so far as it c
gauged, in favour of the Law Commission's recommendations.,3
true that most of the writing was by academics; but then it is acad
who, in general, and in the nature of the case, have the time, inter
and incentive to give the deepest and most sustained attention
abstract legal problems.) So far as published writings show, the b
was in effect a case of Hogan v. The Rest. If this casts Hogan in the
of Horatius, and the rest of us as the ranks of Tuscany, I must a
that it is how things have turned out; and for Hogan the decisio
certainly a glorious victory. But he had one advantage: as appears fr
the report of the forensic argument, his was the only article14 cite
know no one else who publicly expressed doubt as to the meanin
the Act.15 Moreover, the lords did not adopt the technical me
suggested by Hogan for evading the statutory words.,6
Nor did the lords make a serious effort to answer the main
argument advanced by the prosecution17 that the Act makes
provision for the exclusion of impossible attempts (under any verb
guise) from the general law of criminal attempts. (They did not ev
mention this argument; no one reading their opinions would know tha
it had been urged upon them by counsel.) Instead, the lords adopte
the line they have sometimes taken before: incredulity that Parliament
could have meant what it said. The technique is to find at least o
bizarre result that may follow from the Act, and to use this as a reaso
for departing from it more extensively. Lord Roskill chose th
A letter to The Times (28 January 1981) in support of the Law Commission was signed by all t
Professors of Criminal Law in England and Wales. with the exception of Hogan. The signatorie
included J. C. Smith. who had at one time written in defence ofthe steps formula (see below) b
who had later become convinced that it did not provide a practical solution. M. D. Cohen in 14
J.P.N. 713 surveyed various suggestions for half-dealing with the impossibility problem. a
rightly rejected them all. as the Law Commission did.
11984) Crim.L.R. 584.
Hart.op. cit.. n.4 above at p. 391 stated that "the whole doctrine of'impossibility'has now be
eliminated by the Criminal Attempts Act." The text-writers also accepted this.
Hogan's suggestion was rejected by J. C. Smith for reasons that I find completely convincing:
[1985] Crim.L.R. 45.
Alsoby myself in 135 N.L.J. 337. This was a reply to Hogan; see his rejoinder in 135 N.L.J. 454

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following hypothetical.18 If the law of attempt is wide

would mean that a man who has unlawful sexual in
with a girl of 18 believing her to be 15 would be gu
USI with a girl under 16. I agree that a prosecution
would be absurd, and the following reasons, laid en
explain why; I do not guarantee them individually. (1) T
done anything that the law regards as harm on this
very unlikely to make the same mistake again. (3)
facts do not suggest that he is a paedophile; the fact th
thinks) an under-age girl is not part of his motivation.
motivation will be considered later.)
Prosecutors do not usually bring absurd charges.
had been 15, the USI with her would not have been a
view of her borderline age. Prosecutions for USI wi
unusual, and prosecutions for attempted crime
relatively uncommon; so it can be assumed that
attempted USI with girls of 15 are very rare, if ind
brought, even when the offence is possible of ac
imagined prosecution is, therefore, extremely theor
Although one can find absurdities in a wide interp
law of attempt, the problem is to find a way of limitin
make it exclude cases we want excluded, while at
covering cases we want covered. The Appellate C
conspicuously to devise such a rule in Roger Sm
favoured unjustifiably limited the law of attempt
many legal blunders to be acceptable or work
Commission, when it examined the subject, coul
theoretical way of limiting the operation of the law of
of "impossibility."19 The commission's Report, whi
many obscurities, inconsistencies and difficulties oft
is scholarly, competent, careful, cool and dis
commission specifically considered the USI hypothet
that it could not be made the basis ofa general rule of e
the commission's Report is regarded, there can be
supposing that this was a case that Parliament mus
exclude. The solution found by the commission was
sweep of the law on the subject, with all its complex
Contrast this jejune treatment of the issue of policy with Hart's carcful d
above, pp. 338 et seq.
One very partial practical (but not theoretical) solution would be to limit th
to attempts to commit crimes of a specified degree of gravity, as Norw
Attempts Act takes a small step in this direction by eliminating attempts
offences. But no limitation could curtail the law so drastically as to exclu

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confusions (which had been fully pointed out in the literatu

example, the commission discussed the hypothetical ofa pers
his own umbrella believing that he is stealing somebody el
prosecution is conceivable on such facts, but liability could
excluded as a matter of law because then (said the commiss
might well be impossible to obtain convictions in cases lik
Smith. It is abundantly clear from this and other passages
commission's Report that Roger Smith was one of the d
marked down for demolition as being a major source of the
The proposal was to allow all attempts to be punished accordi
ordinary rules of criminal attempt and according to th
intention. The commission recognised that there were trivial at
that should not be prosecuted, but prosecutors were to be
exercise their judgment by acting only where the public in
demanded. If prosecutors acted unwisely, the courts could
matters by dealing very leniently with offenders in trivial cases,
the extent of granting an absolute discharge.
Disregarding the Law Commission

The Appellate Committee declined to look at the comm
Report for the purpose of reinforcing the literal interpretation
Act, or for the purpose of establishing grounds of policy. It cou
done so. Canadian courts are prepared to consider Reports
reform bodies as a guide to policy when policy decisions h
made by the courts. Our courts would not dream of doing t
when the construction of a statute is in doubt they allow thems
consider a committee Report that led to the change in the law, f
purpose of ascertaining the "mischief" in the previous law to wh
legislation is directed. For some reason, however, the lords
painful to have to say—discriminate against the Law Commi
far as I can at present recall, the Appellate Committee h
acknowledged the terms ofthe commission's Reports, at any
criminal case. On one previous notable occasion this court re
from considering a commission Report that had led to the legisl
was considering and could have been a prime obstacle to its decis
and now it has done so again.
20 Scc the survey of the literature in the Report. Law Corn. No. 102. passim. I discussed
in Criminal Law: The General Part (C L. G. P.) 2nd edn (1961) 633 etseq.: Textbook
Law, 1st ed. (1978) Chap. 17; and also published a brief summary ofthe argument for t
fact theory of attempt (answering in anticipation the arguments aftcrwards used by t
Committee in Anderton v. Ryan) in the leading legal wcckly a week before the lords
their opinions (135 N.L.J. 337).
21 Caldwell (1982J A.C. 341, discussed in my Textbook of Criminal Law, 2nd ed., 108

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Perhaps a reason for the apparent frigidity shown b

Committee towards the Law Commission is merely
habitually disagree with the commission, and it is their
to deal with all adverse opinions by ignoring them. The
to acknowledge either the existence of an adverse
reasons for it, except sometimes in the most general w
made to answer the reasons. On one occasion the lords c
opinion of a foreign unofficial body, the American
because they approved it, while conspicuously failing
opinion of the Law Commission, with which they
more strikingly, perhaps, they refrained from citin
from the A.L.I. document bearing directly on the
because it was contrary to their own opinions. This is t
the advocate, and of doubtful ethics even for him.
On the present occasion the commission may hav
soreness by proposing the reversal of a decisio
themselves. But one would have thought that this af
been alleviated by the fact that the legislative chamber
the Appellate Committee acted, and whose nam
assumes, had accepted the proposal.
Previously, when the lords have failed to pay.regard
the commission, they have merely passed it over in sile
occasion there seemed to be an excuse for not lookin
which was thought to be worth putting forward. L
"The acquittal of Roger Smith may have been part
identified by the Law Commission as calling for a reme
of 1981 is significantly differently drafted from the Bil
Report, Law Commission No. 102." The excuse is
that it would have been better not advanced. Five r
given for regarding it as worthless. Any one of them w
(1) In one very important respect the Act fo
Commission's Report exactly; it provides for the res
law of attempt, and the abolition of the commo
re-enactment of the exception for impossible attemp
the commission identified the law of impossible
particularly the decision in Roger Smith, as the mischie
remedied, and its principal line of attack on the mischie
by Parliament.
Certain differences between the draft Bill and the Act can be
found, but they do not seem to be significant, on a reasonable
construction of the Act. It is true that the draft Bill covers not only (a)
an act done with intent to commit a relevant offence (a phrase that in
22 A.L.I. Model Penal Code s.2.02(2)(c) (POD).

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the Act becomes "an offence to which this section applies")

act that would fall within (a) but for the existence of any facts
the commission of that offence impossible. Paragraph (b) is
from the Act, but this was almost certainly because it was reg
being unnecessary in view of section 1(3). Section 1(3) is m
(unnecessary) reinforcement of the inference intended to
from the general structure of the Act. The only conceivab
which the two forms of wording (the Law Commission's and
may be said to be materially different is that the under the dr
person who acts under a mistaken belief as to the possibilit
offence attempts to commit the offence, whereas the Act,
1(3), appears to say only that a person who acts under such a m
belief intends to commit it. However, the lords did not take th
and it would have been untenable as a ground of subs
distinction. Having regard to the scheme of the Act, o
established that attempter intended, and that his act was m
merely preparatory, it follows automatically that the
attempt.
(2) A committee Report is admissible to show the mischie
common law towards which a resulting Act is directed, even if
recommendations of the committee are not adopted. M
consulting the Law Commission's Report might have satis
lords that Parliament was apprised of absurdities tha
possibly follow from a broad change in the law, and co
them unimportant—particularly because of the Law Comm
opinion that confidence might safely be placed in the discr
prosecutors.
The courts are right not to allow a committee Report to
from the plain meaning of an Act. But nothing justifies t
asserting that an Act means something different from it
meaning, when (as here) a glance at the Report on which Pa
acted would show that it meant what it said.
(3) The practice of including a draft Bill in a committee Report is
extremely valuable, but it is not to be expected that the government
will always accept the draft without alteration of wording. If such
alteration is made, and causes the courts to refuse to look at the Report,
committees will have to consider afresh whether the disadvantage of
including a draft Bill outweighs the advantages.
(4) Where a statute departs in its wording from a committee's
draft, the proper course for the courts is to decide whether Parliament
departed so substantially from the recomrtiendations of the committee
as to fail to endorse the committee's estimate of the mischief in the
common law (which is supposed to be the reason why the judges look
at committee Reports). In the present case, apart from his brisk

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announcement that the differences were "significant" L

not enter into the question.
(5) Considering that the commission had knowingly
recommended a derogation from decisions of the Appellate
Committee, if the government had decided to maintain the broad
effect of those decisions it could be expected to have made the point
clear in the legislation. There are no words in the Act of 1981 that could
possibly be construed as indicating any intention to save the effect of
Roger Smith.
The lords' suppression ofthe commission's Report in framing their
opinions was of key importance for the decision. Had they set out the
relevant passages of the Report in extenso in their judgments, they
could hardly have avoided holding that the intention of the Act was to
change the rule in Roger Smith. Lord Bridge must have had the Report
in his hands when he noticed that there were differences between the
draft Bill and the Act. Was he so convinced of the irrelevance of the
body of the Report that he did not read it? If he read it, he must have
been aware how much of an impediment it would have presented to his
decision if its terms had been acknowledged.
The Present Law
(1) An attempt need not be physically possible

To summarise the argument that follows, the present law,
from the Criminal Attempts Act as now interpreted, may be st
indicated) in six propositions.
(1) An attempt need not be physically possible of achievem
(2) An attempt may be committed by an otherwise lawful
(3) As an exception to (1) and (2), no attempt is committed
the attempter makes a mistake of fact and if on the actua
the full crime could not have been committed.
(4) Proposition (?) does not preclude conviction of attempt if the
case comes within one of two rules (it is not certain which is the
law): (a) if the object of the attempt is not there, or (b) if the act
is independently lawful.
(5) Proposition (3) does not preclude conviction of attempt if the
mistake relates only to the adequacy of the means used.
(6) Proposition (3) may not preclude conviction of attempt if the
mistake did not go to the attempter's motivation.
The first proposition is the good news. The Appellate Committee
has accorded recognition in some degree to the "impossibility"
provisions of the Act of 1981, and the result is that there is no longer
any universal rule (if there ever was) that the physical impossibility of
committing the crime precludes a conviction of attempt.

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Both of the lords who spoke for the majority agreed tha
had effected the demise of the "missing object" rule. Lord Brid
an illustration ofthe police coming to know of a planned wages
They replace a package of £10,000 in currency notes with
package of torn pieces of newspaper, and the villain t
worthless package believing it to contain money. In effect
"empty pocket" case: the package is devoid of what the villain
steal. Lord Bridge expressed the opinion that since the Act
could be convicted of attempting to steal £10,000. (Before t
could only be convicted of attempting to steal "the proper
without saying what he was after, since this was the best t
thought they could do to modify the empty-pocket rule.23)
Lord Roskill put another hypothetical to illustrate what he
was the effect of the Act. He gave the example of a man st
what he believed was someone in bed and finding that it w
pillow. The man would be guilty of attempted murder; and a v
thing, too. Under the rule apparently accepted before the
would not be a criminal attempt.24 This dictum, like that
Bridge, was obiter, but both dicta represent common sense, an
case the lightest word ofthe lords is regarded as law. So there
doubt that the courts will follow them, even though they are di
impossible to reconcile with the rest of the two judgments.
Lord Bridge's empty pocket hypothetical shows that you can
the attempter for attempting to commit the very crime h
mind—to steal £10,000. The same rule must apply to Lord
pillow hypothetical. So if a man stabs a pillow thinking that it
Charles, you can indict him for attempting to murder Prince C
Although the solutions of the two hypotheticals were ag
lords were non-committal on the extent to which they were ot
prepared to apply the new Act, and showed a remarkable in
disinclination to state a principle of law covering the
hypotheticals and other similar situations; and they failed t
how their opinions on the hypotheticals were to be reconci
their decision on the facts before them.
Before the Act it was held that on an indictment for stealing (say) a mirror from a woman's
handbag, where it was not proved that the defendant took the mirror and he was actually after
money, he could not be convicted of an attempt to steal money, because under the statute allowing
conviction of an attempt on an indictment for the completed crime the defendant can be convicted
only of an attempt to commit the crime charged, and here the defendant did not attempt to steal
the mirror because he did not want the mirror: Easom (1971) 2 Q.B. 315. this is still the law. The
indictment must be for attempting to steal what the defendant wanted, but it may just say "money
in a handbag the property of V." Such a charge, of course, means "money that the defendant
believed to be there." It will now be no answer to say that there was no such property.
See Lords Hailsham and Reid in Roger Smith (1975) A.C. at 495-496; Williams, Criminal Law:
The General Part, 2nd ed., 639.

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48 The Cambridge Law Journal [ 1986]
In the fog that has descended on the Act, we must

landmarks. Assuming that the two hypotheticals represe
the rule about non-existent object cannot be confin
murder, but must apply to other charges as well—subjec
the mistake of fact rule to be discussed later. If so much
wider generalisation may be offered. There is no long
was) a rule that the physical impossibility of the en
attempt. The missing object rule was sometimes stated b
terms of the physical impossibility of the endeavou
argument can be advanced for the opinion that t
impossibility was not the decisive consideration. Th
moved by the supposed logical requirement that the
attempt must be "there" for the attempt to op
impossibility was no defence to a charge of attempt,
the rule for inadequacy of means.
This conclusion can be supported by examining wh
speaking of inadequate means. A statement that the
but that the defendant employed inadequate mea
conditional proposition: that if the defendant had
means and due skill he would have succeeded. The gun
to hit his victim would have scored a hit if he had a bet
straighter. Is there any limit to the iffing—to the degre
that you can credit to the assassin in imagination? C
that he has a rocket launcher and the most sophisti
system? Can you suppose that he has equipment cleverer
invented? "If" can turn any impossibility into a
Touchstone observed, "much virtue in 'if.'"
But there came a point, under the old law, when the i
stop. You could not say that a man who stabbed a cor
killed a man if the corpse had been alive. You could
pickpocket could h^ve succeeded if there had been a
pocket. Why not? Was it because the law distingu
impossibility of means and impossibility of end? It was n
formulated in these terms, though the rule acceptin
impossible means perhaps implied a rejection of
impossible ends. Is such a distinction workable? The a
assisted by considering a question that arose unde
whether a person who was disqualified from driving
influence of drink, could be convicted of an atte
clapped-out car or one with an empty tank. In terms
distinction, was it the case that the defendant lacked the
(petrol, replacement parts, perhaps a new engine), or tha
impossible? One could look at it either way, and the

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discordant,25 but one view (surely the better one) was that an
was committed.
This illustration shows that the means-end distinction was not
always workable, and it also shows the unworkability of the supp
distinction between physical and logical impossibility (if that was in
judges' minds when they developed the rule about impossi
attempts). In the case of the undrivable car, do we say that starting
car was merely physically impossible, or that it is logically impos
to drive a car that cannot be started? A rule that asked such a questio
would be derided.
(2) An attempt may be committed by an otherwise lawful act

The decision in Anderton v. Ryan, like that in Roger Smith, depended
in part on the idea that the act charged against the defendant was
lawful, or "innocent," and therefore could not be an attempt.
However, when the judgments are closely examined the principle
intended to be laid down appears to be narrower than this, as will be
shown under (3) below. There is not, and never has been, any general
rule that a criminal attempt requires an independently unlawful act.
Suppose, for example, that Bluebeard decides that his current
wife's time is up; he puts his own rat poison into his own bowl of soup
and offers it to her. If she does not take the soup Bluebeard is
obviously guilty of attempted murder; yet his act was otherwise lawful.
He has done nothing illegal apart from his intention. No question of
impossibility arises, nor did Bluebeard make a mistake of fact.
On the same principle, a would-be assassin who creeps up behind
his victim intending to strangle him is guilty of an attempt to murder,
although there is no assault or otherwise "objectively" unlawful act if
he is arrested before the victim becomes aware of danger.26
Again, consider the position where a person who is attempted to be
worked upon by a cheat sees through the cheat's little wiles. He is
ungullible. The deception cannot work. If, knowing that the cheat's
statements made to get money are untrue, the intended victim
nevertheless sends him money in order to have him arrested, the cheat
will not be guilty of obtaining money by deception, because the
intended victim was not deceived. Can the cheat nevertheless be guilty
25 Farrance | 1978| R.T.R. 225 (attempt); a contrary conclusion was reached shortly afterwards by a
differently constituted Divisional Court in Neilson | 1978J R.T.R. 232. The court in Farrance said
that the attempt would have been succcssful but for "the intervention of a burnt-out clutch."
"Intervention" was hardly the right word. since it appears that the clutch had ceased to function
before the act charged as an attempt.
26 If the assissin's intention was not to strangle but to shoot his victim from behind, hc would be guilty
of possessing a firearm with intent to endanger life (Firearms Act 1968, s. 16), so that his act would
be illegal on that account.

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of an attempt to obtain by deception? Is his intende

man with empty pockets, who can be the subject of an
even though the attempt is doomed to fail? In common
the cheat has not completed any crime or tort; no
categorised as one of inadequacy of means, since he
means employed are part and parcel of the charge.
used a different and more effective deception, he woul
under the charge as now worded which refers to t
deception. Yet according to a case of 1870 he is guilty o
obtain money by deception.27 Before the Criminal
Lord Hailsham approved this decision, on the g
defendant "had done all that he intended to do, an
necessary to complete the crime was an act or event wh
control."28 The sudden introduction of a control tes
did not accord with the rest of his opinion. Lord Reid i
also approved the 1870 case, but for the different r
quite possible that the intended victim might have
Well, it was possible so far as the defendant's knowledg
possible in fact if the intended victim was hard-hea
evidence of the truth.30
How does the 1870 decision stand today? It should
the Act. No mistake of fact is involved, so as to bri
indulgence of Anderton v. Ryan. An attempted decep
deceive is (legally speaking) an innocent act, apart
attempt; but that does not matter.
(3) No attempt ifthe attempter makes a mistake offact

the actual facts the full crime could not have been c
Now to the bad news, which will take much longer t
have been understood, there is a type of case still gover
law, because of the decision in Anderton v. Ryan. T
27 Hensler, 11 Cox 570.
28 Roger Smith (1975] A.C. at p. 494D.
29 Ibid, atpp. 498-499.
30 Of course, no question of impossibility can arise if the end aimed at
defendant acted, even though it afterwards became impossible. This propos
the difficulty presented by the facts in an American case, where D, inten
result of pending proceeding for divorce, attempted to suborn another to g
act of adultery by one of the parties to the divorce proceeding; but this
alleged in the divorce pleadings, and therefore was immaterial to the issue. It w
not an attempted subornation of perjury. See Williams, C.L.G.P. 2nd ed
had not been filed at the date of the attempt, the case should on princ
otherwise, because the adultery in question might possibly have been plea
pleadings had been filed, so it was perhaps a case of impossibility, bu
Criminal Attempts Act it should be a punishable attempt unless there i
circumstance" within the rule about to be stated—a dark question to which
offered. An alternative view is that it was not in any case an instance of im
pleadings could have been amended to allege the adultery in question. S
n.62 below p. 38.

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C.LJ. The Lords and Impossible Attempts 51
defendant made a mistake of fact, so that his conduct

although he thought it was unlawful. In other words, th
defence avails if and only if the defendant made a relevant
fact. This was the decision in Roger Smith. It was a bad
supported by a number of bad reasons, all of which were
up in Anderton v. Ryan.
The steps formula

Historically, the rule derives in considerable part from a
in a case that had little or nothing to do with impossibili
case of 1949.31 Although this was not a case of impossibility
much one of mistake of fact as one of recklessness as to fac
laid down in it has become detached from the circumstances of its
creation. The Court of Criminal Appeal expressed it in the followin
words.
Steps on the way to the commission of what would be a crime, if

the acts were completed, may amount to attempts to commit that
crime, to which, unless interrupted, they would have led; but steps
on the way to the doing of something, which is thereafter done, and
which is no crime cannot be regarded as attempts to commit a
crime.
The beguiling principle expressed in the second limb of this

statement, which I have italicised, will be dubbed the "steps formula"
in the following discussion. It needs careful consideration.
The facts before the court throw light on what it had in mind. A
firm of merchants sold boxes of pears described as being 46 Ib weight,
invoicing each box at a price that (if the box contained only 46 lb)
exceeded the controlled price per Ib under wartime regulations.32
(This was because the merchants misconstrued the regulations.) What
weight of pears the boxes actually contained could not be proved, but
there was evidence that it was in excess of the declared weight; and to
simplify matters I am going to assume for the purpose ofthe discussion
that each box contained 48 lb (which most of them certainly did), and
that the sellers knew this. Since the boxes contained this extra weight
of pears, the price charged per lb was within the permitted price-
limits.33 It was held that the sellers were not guilty of the completed
offence of violating the regulations, nor of attempt either.
Percy Dalton (London)Ltd. (1949) 33 CAR. 102.
The reason why the sellers invoiced the excessive charge per Ib was that they apparently misread
the regulations. This caused them to add a sum for expenses that they could lawfully have added
had they been wholesalers; but they were rctailers. However, mistake of the criminal law is no
defence, and the sellers were to bc considered in the same way as if they knew that the price per Ib
they invoiced was excessive.
There was no indication that in making the extra charge the sellers rcckoned that it would be
covered by additional pears in the boxes they sold. They apparently knew there might be some
additional pears (the boxes had been imported—and presumably sold to the defendant

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If we assume these facts, the steps formula, read

them, is acceptable as a rough (a very rough) statem
the decision. A slip occurs in the formula: instead of sa
is no crime" the court should have said "and which is not the crime
charged as having been attempted." Obviously, the defendant
company would not have been convicted of attempting to infringe the
price regulations if all that it had done, in addition, was to sell illegally
on a Sunday. The miswording was minor in the context, but it wa
pregnant with possible mischief for the future.
The decision in the case, as a decision, was obviously right on th
facts I have assumed. Although the sellers invoiced a price that looke
illegal, they intended to fulfil their contract by delivering an extr
weight which brought them within the law. Therefore, they did no
intend to break the law. They did all that they intended to do, and i
was not the full offence. You could not make a criminal intention, o
attempt, out of that.34
Although the decision is right, it can all too readily be
misinterpreted as laying down the false rule that if evidence of a
completed crime is deficient, this evidence cannot prove an attempt.
The court did not say that, and obviously did not mean it.
The evidence of the alleged attempt in this case was inextricably
mixed up with the evidence of the alleged consummated crime, but
facts can be invented in which the two questions become separated.
company—as containing "46 Ib or better"), but they do not seem to have made any investigation
of what additional weight was to be expected. So it was pure luck that when charged and when they
bethought themselves of weighing the contents of other boxes in the consignment that still
remained in iheir possession, the sellers found that these generally contained two or three Ib more
than the 46 lb invoiced, which would bring the price charged for the boxful of pears within the
permitted limits per Ib. The prosecution could not counter this defence by proving that any of the
boxes sold did not contain this extra quantity, so the sellers were able to establish a defence to the
charge of the full offence.
1 It is unlikely that the sellers positively believed that the boxes contained no more than the weight
stated. Since goods sold cannot legally be under-wcight, they must frequently be over-weight, if
only by a little; and the sellers must have known this. They were, however, indifferent on the
point. They did not positively desire the boxes to contain no more than 46 lb each. nor (since they
had misread the regulations) positively desire that the boxes should contain more. They based
their price calculations on the boxes containing 46 Ib, and were evidently unconcerned whether
the boxes might contain a little extra, for which no charge was made. In these circumstanees the
sellers must be taken to have been reckless as to whether the price at which they sold would be
within the law, because they were not certain that sufficient additional pears would be found in
every box to make the sale legal. (The notion of recklessness is a bit artificial in this context.
because in applying it one has to assume that the sellers knew the price regulations and properly
understood them.) So the further question is raised whether recklessness as to a circumstance (in
this case the non-cxistence of additional pears) is a sufficient mental element for an attempt. In
particular, can such recklessness by sufficient even though the prosecution did not prove that the
necessary circumstance was present (i.e. that there were no additional pears)? These are moot
questions that cannot bc discussed here. If the answer to them is a negative, the sellers of the pears
did not commit an attempt (because they did not intend to commit an offence, but were only
reckless as to it); but the court did not put the quashing ofthe conviction on this ground. The court
seems to have thought that an attempt could be committed whether the defendants intended (in
the fullest sense) to commit the offence or whether they were in part reckless as to it.

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(i) Suppose the sellers sent a pro forma invoice for 46 lb o

above the permitted price, intending in fact to supply a box
48 lb, which would be within the law. If they are charged at
with attempting to contravene the regulations, they sho
defence that they did not intend to contravene.
(ii) On the other hand, if when they sent the above in
intended to weigh out 46 Ib and no more, their sending of t
would be an attempt to sell in contravention. If the bu
invoice, and the sellers despatched him a box of pears wh
(without their knowledge) contained 48 lb, the actual sa
lawful,35 but that fact could not displace the sellers' accr
for an attempt. To let them off on the steps formula would
wrong. Even if the sellers deliberately included the overweig
benevolence or because the inspectors were on their tracks,
merely be equivalent to repentance, and would not afford a
the charge of attempt if the prosecutor wanted to press it.
(It may seem that the matter before the court was rat
The prosecutor would perhaps have done better to have d
charge when he found that the sale itself was regular. But p
defendant company's misconstruction of the regulations was
and the prosecutor was anxious to get a conviction i
emphasise the legal position.)
In short, the steps formula was a good enough way of exp
sound decision on the facts, but it was not well exp
particular criticism of the formula is that it is unduly coy ab
defendant's intention is supposed to have been. The inte
appears in the formula, is "the doing of something." Well, th
what? The formula seems to want us to suspend a decision of
defendant intended until we find out what he has done. If we then
discover that what he has done is no crime, then he did not intend to
commit a crime and we cannot say that he attempted.
The fallacy should be obvious, as is shown by illustration (ii) above.
You cannot argue: the defendants actually sold at a legal price;
therefore they cannot in the past have attempted to sell at an illegal
price. For the sake of giving this type of bad argument a name I will call
it the fallacy of reasoning backwards (not meaning to imply, of course,
that reasoning backwards is always a fallacy).
False reasoning is unlikely in a straightforward case, but can occur
where the facts show that the defendant acted under mistake. The
court's judgment shows that it meant its formula to extend to cases of
impossibility resulting from mistake (and later courts have applied it in
35 By the Sale of Goods Act 1979, s.30(3), when excessive goods are delivered the buyer may keep
them and pay for them at the contract rate. But it is likely that on the facts supposed in the text the
court would find a common intent that the buyers should not have to pay extra.

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this respect). Suppose, then, that Macbeth goes to m

his sleep. He stabs at a form in the bed, but the for
there as a decoy by Duncan who is hiding under th
formula may seem to say: what Macbeth did was to s
what is more, his own pillow; this was not the crime of m
matter of that any other consummated crime); ther
the way to doing what he did (his metaphorical "step
the pillow and bringing the dagger down upon it) did n
attempt to murder.
The answer is that Macbeth did not do what (or a
What he meant to achieve (his "doing of something,"
went beyond his own movements; he intended to mu
was not "thereafter done." So the steps formula, if giv
interpretation, would not provide a defence. In
formula is a truism, but it is a truism that is o
misunderstand and misapply.
A related criticism ofthe formula is its use ofthe no
in an ambiguous sense. Do you "do" just your physic
also "do" the intended consequences and "do" the act
accompanying circumstanees? The only intelligent
each of these questions, for the purpose of applying th
so far as the matters in question are relevant to the
facts come into both the intention and the doing.
When the steps formula was devised the courts were
actual fact theory of criminal attempt. Look at the for
first limb refers to "what would be a crime if the acts
In cases of impossibility the acts can never be compl
the defendant's intention. If, as in the Macbeth hy
intended victim is not there, the crime cannot be
continuation of the steps started by the attacker, and s
this reading of the steps formula) be guilty of
conclusion would be ridiculous. And it is self-co
postulate intended acts being completed if they cannot
completed and if you cannot change the facts in ima
The conceptual mess of the steps formula can be d
the way in which the formula was handled by the lord
Lord Hailsham, discussing a number of hypotheticals (s
at an effigy thinking it to be a real person), and also so
said that no attempt was committed in those cases
contemplated sequence of actions had been complete
the supposed instances they were) no substantive of
been committed of the type corresponding to the ch
supposed to be laid."36 This assumed that in, say, th
[1975] A.C. at 495-496.

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C. L. J. The Lords and Impossible Attempts 55
the effigy the "contemplated series of actions" was complet

by hitting the effigy in the head with a bullet. Nonsense, of c
Lord Hailsham added:
Equally, steps on the way to do something which is thereafter n

completed, but which if done would not constitute a crime canno
be indicted as attempts to commit that crime.38
As applied to the effigy case, more nonsense.
Extending the damage

If the errors in the steps formula had been corrected in time,
would have been well. The Appellate Committee had an opportun
to do this in Roger Smith,39 but instead it only underlined the previ
errors and made confusion worse confounded. Smith could not be
convicted of handling stolen goods (it was assumed), since the goods
had lost their character of being "stolen" when they came into th
custody of the law, before he handled them. The lords held that on
these facts he could not be convicted of attempting to handle either
What Smith did was lawful (or, at any rate, did not amount to the full
crime of handling); so he could not be convicted of an attempt.
This was the fallacy of arguing the steps formula backwards. Smith
intended to handle stolen goods, and got very near to doing so (indeed,
actually did so) on the facts as he believed them to be. That should
have made him liable for an attempt, and the question whether he got
near enough to handle any stolen goods in fact should have been of no
significance.
The confusion between mistake offact and mistake oflaw

A major criticism of the decision in Roger Smith is the court's
misapprehension ofthe elementary distinction between mistake offact
(the erroneous imagining of a fact) and mistake of law (the erroneous
imaginingof criminal law); and the source of this trouble, in turn, was
an ambiguous proposition. The lords, repeating the steps formula, said
that if you do something, thinking you are committing a crime, but it is
not a crime, you cannot be convicted of attempting to commit a crime.
The proposition is true for the imaginary crime (as where a person
imports sugar wrongly believing that the import of sugar is prohibited),
but not for a case of mistake of fact.
Suppose that a man imports a harmless powder believing it to be
heroin. These were the facts of Shivpuri,40 where the Court of Appeal
37 For a further discussion see Hart, op. cit., n.4 above p. 384, and below at nn.48, 49.
38 Ibid. ,at497D.
39 [19751 A.C. 476.
40 (1985) 2 W.L.R. 29.

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held that the defendant was guilty of attempting t

concerned in dealing with heroin. The decision is un
lords, and it is a fairly safe prophecy, in view of Ander
it will be reversed. Yet Shivpuri is not a case of im
Importing (or selling) heroin is a crime-in-the-books, n
crime, and the man is in fact attempting to do it. He fa
consummate the crime by reason of a mistake offact, n
law, and he ought to be guilty of an attempt.
Handling stolen goods is also a crime-in-the-b
position of a person who handles an article wrongly
stolen is precisely analogous to that of a person
innocuous article wrongly believing it to be her
attempts to commit a crime, and fails to achieve i
mistake offact, there is no reason why he should not b
attempt. Yet in Roger Smith the lords treated the attem
though he made a mistake of law.
The point comes out particularly in the judgments in
of Lord Hailsham and Viscount Dilhorne, who discus
boy under 14, who cannot be convicted of rape; if he c
rape he cannot, they said, be convicted on those fac
rape. Quite right: it is clearly a case of what ma
impossibility—of charging an attempt to commit an im
Rape in general is not an imaginary crime, but when at
charged against a boy under 14 it is. The boy makes
as to the adequacy of his means or as to the possibility
the matter of that he may be under no misapprehen
either; he may or may not think that he is commit
makes no difference either way.) Yet the two lords
as on all fours with cases of mistake of fact, such as
person who is already dead, which is not legal imp
acceptable sense of the phrase. It would be outrageous t
attempt to punish types of conduct that, even if fully
the defendant intended to consummate them, are outsid
law41; whereas there is no reason why a person should
for an attempt where (as in Roger Smith) he made a mi
to some ingredient of the crime.
Probably the same fallacy underlies the reasoning of
said:
The only possible attempt would be to do what Parliament has

forbidden. But Parliament has not forbidden that which the
41 Or, rather, outside the particular law that the defendant is charged as attempting to infringe. A
boy under 14, though he cannot be convicted of rape as perpetrator. can be convicted on the same
facts of indecent assault. Obviously, this fact cannot affect the boy's immunity from the law of
attempted rape.

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held that the defendant was guilty of attempting t

concerned in dealing with heroin. The decision is un
lords, and it is a fairly safe prophecy, in view of Ander
it will be reversed. Yet Shivpuri is not a case of im
Importing (or selling) heroin is a crime-in-the-books, n
crime, and the man is in fact attempting to do it. He fa
consummate the crime by reason of a mistake offact, n
law, and he ought to be guilty of an attempt.
Handling stolen goods is also a crime-in-the-b
position of a person who handles an article wrongly
stolen is precisely analogous to that of a person
innocuous article wrongly believing it to be her
attempts to commit a crime, and fails to achieve i
mistake offact, there is no reason why he should not b
attempt. Yet in Roger Smith the lords treated the attem
though he made a mistake of law.
The point comes out particularly in the judgments in
of Lord Hailsham and Viscount Dilhorne, who discus
boy under 14, who cannot be convicted of rape; if he c
rape he cannot, they said, be convicted on those fac
rape. Quite right: it is clearly a case of what ma
impossibility—of charging an attempt to commit an im
Rape in general is not an imaginary crime, but when at
charged against a boy under 14 it is. The boy makes
as to the adequacy of his means or as to the possibility
the matter of that he may be under no misapprehen
either; he may or may not think that he is commit
makes no difference either way.) Yet the two lords
as on all fours with cases of mistake of fact, such as
person who is already dead, which is not legal imp
acceptable sense of the phrase. It would be outrageous t
attempt to punish types of conduct that, even if fully
the defendant intended to consummate them, are outsid
law41; whereas there is no reason why a person should
for an attempt where (as in Roger Smith) he made a mi
to some ingredient of the crime.
Probably the same fallacy underlies the reasoning of
said:
The only possible attempt would be to do what Parliament has

forbidden. But Parliament has not forbidden that which the
41 Or, rather, outside the particular law that the defendant is charged as attempting to infringe. A
boy under 14, though he cannot be convicted of rape as perpetrator. can be convicted on the same
facts of indecent assault. Obviously, this fact cannot affect the boy's immunity from the law of
attempted rape.

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man and his mind.43 I would add that there is neverthe

using the term actus reus, provided one understands th
is the act forbidden by the law creating the crime. Whe
an attempt, the actus reus is the conduct intended
criminal intention.
Lord Hailsham did not draw this conclusion from his own remarks;
he seemed to forget them as soon as they had passed his lips, and they
made no impact on the other members of the committee. He had
earlier rested his opinion in the case chiefly on the proposition that to
make the defendant guilty of an attempt on such facts "would be for
the courts to manufacture a new criminal offence not authorised by the
legislature." This is probably the same misapprehension as Lord
Reid's, expressed in other words. The objection—the conclusive
answer, as I see it—to his reasoning is that handling stolen goods is an
offence; an attempt to commit a crime is an offence; so to convict of
attempting to handle would not be manufacturing a new offence.
An addition to the list of unconvincing reasons adduced for the
decision in Roger Smith was the argument that the prosecution was (in
Lord Reid's words) "really an attempt to punish people for their guilty
intention."44 This remark, though perhaps partly true in the spirit, is
literally false, because in these cases of impossible attempts there is
more than intention: there is conduct that carries very far the
endeavour to carry out the intention, on the facts as the defendant
believed them to be. Generally, in these cases, the defendant thinks he
has done everything necessary to carry out his intention. And if he did
everything he planned to do, on the facts as he believed them to be, it
would be a crime (not an imaginary crime).
These critical remarks must be balanced in one respect. Although it
was not true to say that Roger Smith committee no actus reus, and only
had a bad intention, still there was a truth struggling in the minds ofthe
lords that did not quite manage to get out.
The actus reus of attempt is of a most peculiar kind. Most crimes
specify their actus reus directly; they tell us what it is that we must do or
not do. Criminal attempt is different: it specifies the actus reus chiefly
by reference to the crime attempted. It tells us that we must not seek to
travel a certain decisive distance towards the commission of the actus
reus of some other crime. If the defendant is under some serious
mistake, no part of what he does may be the actus reus of anot
crime. So it may seem plausible to say that his criminality exists onl
his own mind.
However, this conclusion overlooks the special features of criminal
43 Ibid., at 491-492.
44 Ibid., at 500C. So also Lord Morris.

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attempt. In an attempt, by hypothesis, the full crime has

committed, or need not be proved to have been committe
hypothesis, there need be no full actus reus ofthe complete cr
actus reus is that of the attempt; it is forbidden by reason of
attempt, and not by reason of any other penal law.
The uniqueness of attempt, Hart shrewdly remarks, is
defendant's mental element not only supplies the men
demarcates the actus reus.45 This is a slight simplication; if
reus were defined entirely by the defendant's mind, he would
for imaginary crimes. The correct analysis is that the act
defined by what it is in the defendant's mind to do, granted t
he intends (1) coincides with the actus reus of the crime aimed
(2) is carried out according to the facts as he believes them to
an extent as defined by the law of attempt.
The lawful act fallacy

The lords' assumption that a lawful act cannot const
attempt was their third remarkable blunder in Roger Sm
repeated in Anderton v. Ryan (where "a lawful act" was also
as "an objectively innocent act"). It stems in part from th
formula, which the lords accepted literally and which postu
what was "intended" to be done was "no crime" (the mistak
in this has already been pointed out). It also results f
misunderstanding of the term actus reus. Lord Bridge, for
explained his decision in Anderton v. Ryan by saying that P
could not have intended to "make this purely subject
criminally punishable." This is the actus reus fallacy over ag
acts are innocent if regarded apart from the intention, bu
criminal (and, indeed, full crimes, not merely attempts) by
the intention. Possessing explosives, for example, is no
independently of knowledge that the explosives are there, o
words independently of intention to possess them as expl
course, possessing explosives is a crime, given the intention. Bu
receiving stolen goods is a crime, given the intention. As for R
guilt was not purely subjective; she had tried to put her intent
effect by buying what she thought was a stolen videorecorder.
the "lawful act" doctrine is derived from the pre-Act common
does not appear in the Act, which plainly intended to exclu
The proposition that a lawful act cannot be an attempt meet
an initial logical difficulty. If read literally it begs the question.
is an attempt, it is not lawful. To speak ofa lawful act involves
decision that this act is not an attempt. So a lawful act cannot
45 Hart, op. cit.. n.4 above at pp. 386-387.

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an attempt by definition; but that says nothing use

cannot yield the conclusion that a particular act is n
What may have been in the minds of the lords w
essential of the full crime is missing, there can be
whereas the previous interpretation reduced t
proposition to futility, this one makes it mean far too
the argument that:
Some part of the full crime is missing;
Therefore the act is lawful;
Therefore it is not an attempt—
would abolish the law of attempt. Every failed attempt
far as the crime attempted is concerned, and if it is un
other reason, that is purely accidental.
The lords in both cases showed an extraordin
appreciate this fatal defect in their reasoning. To all ou
they made no effort to grapple with it.
However, the decision in Roger Smith can be
narrower grounds by saying that it really depended no
the act was supposed to be lawful but on the fact th
mistakenly believed that an essential of the full cri
"Explained" in the sense of being clarified, and
avoiding the ultimate absurdity of abolishing the law o
of absence of mind, but not "explained" in the sense of
an attempt that fails because of a mistake of fact is fo
any case, is the decision in Anderton v. Ryan well expla
for that decision came after the Criminal Attempts
mistake of fact rule as a qualification of the Act was a
amendment ofthe Act by way of pretended implication
actual fact theory of attempt, at least for certain situa
purpose of the Act was to apply the putative fact t
board.
The enquiring reader may wish to know why there should be this
distinction in law between lawful acts resulting from a mistake of fact
(not attempt) and lawful acts not so resulting (attempt, given the
intention). My answer would be that the distinction exists because the
lords lacked the perspicacity to see the problem. Apparently they did
not envisage a Bluebeard-type case (which they would surely have
wished to regard as an attempt), and did not realise that in creating a
special exemption for the attempter who acted "lawfully" because he
made a mistake of fact they were creating an irrational distinction.
Everything that was said about the act being "innocent" or "lawful,"
and about the supposed absence of an actus reus, applied as much to
Bluebeard as to Smith and Ryan.46
46 The perspicacity necessary to see this point had already been provided, if the lords had cared to

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C.L.J. The Lords and Impossible A ttempts 61
Although the mistake doctrine did no great harm on th

these two cases, others can easily be put in which it
preposterous; and there is no need to invent a hypothetical to
an illustration, since the facts of Shivpuri supply it.
As a final touch in this tragedy of errors, the lords' d
involved an objectionable use of the concept of intention.
The intention fallacy

Little more need be said on this fourth fallacy in Roger Sm
repeated in Anderton v. Ryan: the fallacy that a person has do
intended to do when he has not done all he intended to do because of a
mistake offact. This fallacy contributed to the lords' idea that a person
who attempts a crime but labours under a mistake of fact does not
really attempt to commit the crime but intends to do a lawful act. In the
later case, Lord Roskill expressed the steps rule by saying that "if the
action is innocent, and the defendant does everything he intends to
do," he does not become guilty of an attempt by reason of his
erroneous belief in the existence of facts which, if true, would have
made his completed act a crime. On a rational understanding, this is
self-contradictory. As was said before, a person who acts under a
mistake of fact does not do everything he intends to do. He may
perform every bodily movement he intends, but he does not
necessarily do what he intends merely by making an intended bodily
movement. Lord Roskill applied his rule to explain the non-liability of
Ryan; but to say that she completed her intention implies that she did
not intend to handle stolen goods, which would involve a use of
language so strange as almost to amount to mendacity. If a woman
received a stolen article believing it to be clean, you would not say that
she intended to receive a stolen article. So when she received a clean
article believing it to be stolen, you should not say that she intended to
receive a clean article. Indeed, Lord Roskill did not consistently apply
his own peculiar notion of intention; as has already been noticed, at
another place in his judgment he cheerfully acknowledged that Roger
Smith (and, one assumes, in consequence Ryan) intended to receive
stolen goods.47 Lord Roskill not only flouted ordinary speech and
contradicted himself but ignored section 1(3) ofthe Criminal Attempts
Act.
Lord Roskill added a rider to his general formula which may at first
sight seem to solve the difficulty, and which he no doubt thought did
take advantage of it. I put the Bluebeard hypothetical in the N.LJ. article referred to at n.20
above. The article was evidently available to the lords, because Lord Edmund-Davies referred to it
in his dissent. The others took no account of it; why not, is speculative.
47 See above at n.9; cp. the discussion at n.37.

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so. He said that the position would be the same if th

some reason subsequently fails to achieve that whi
Taken by itself, this proposition would exempt
hypothetical. His act was "innocent," and he fail
purpose because his wife became suspicious. Are we
he must be acquitted of attempted murder? No, bec
from the context that Lord Roskill was still thinking on
fact.48 The question of lawful acts in other circum
present to his mind.
There might have been some excuse, humanly sp
gross mistakes of law and reasoning in Roger Smith
every judge) shows himself to be fallible sometimes, an
people make a series of cumulative mistakes. But th
for repeating them after the Act. Never before in the
English law (I venture to think) have so many worth
offered by a court for not applying a recent reformin
The lords' refusal to apply subsections (2) and (3) o
not justified even by a pretence of reasoning. They off
which the intellect can take hold. Lord Roskill said
certainly covers the pickpocket-empty pocket case. It m
but I do not find it necessary to consider the prec
subsection." Lord Bridge was equally unhelpful: att
from an empty pocket was in effect the only illustrat
(2) to which he would commit himself. (Apparently,
could not even imagine that the subsection c
inadequate means; empty pocket cases were left in is
obvious application.) Admittedly, subsection (2) if
capable of being read, by a costive court, as having m
the law. But even the said costive court could not
undoubted intention of the Act to supersede the co
Subsection (3) was inserted in order to put its pu
subject of impossible attempts beyond every shado
attempt is a failed intention that has been pursu
distance. Subsection (3) provides that in judging int
take the putative facts. This is enacted in the conte
attempt, and clearly means that in judging an attem
the putative facts.49
The quotation is from p. 580E. The restrictive inference is based on L

sentence, which is narrower and must bc taken to colour it: the "innocent
to "erroneous belief." Blubeard made no mistake.
1 Suggestions have been made of better wording that the Act might have been employed (Lord
Roskill,[19851 A.C. at 580-581 ;J. C. Smith inj!985|Crim.L.R. 506; Glazebrook in|1985J C.L.J.
340). While I agree that these altematives would have made it more difficult for the lords to evade
the Act, and would be very likely to be effective, I would reply (1) that the existing wording was
perfectly clear, and (2) that no wording can defeat a court that thinks it finds some absurd
consequences of the legislation and therefore claims the ability to disregard it at pleasure.

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The only answer the lords made to this argument was to

they found subsection (3) hard to understand. Lord Roskill told
he had found great difficulty in determining its precise am
Lord Bridge said that its scope was difficult to delineate and
not be so rash as to identify to which of the hypothetical cases
in Roger Smith it would apply. Neither judge considered the po
that subsection (3) meant precisely what it said, and neithe
any appreciation of the woolly judiciai thinking that had ne
its enactment.
Had the lords looked at the Law Commission's Report any doubt
would have been resolved. They would have found that subsection (3)
was put in precisely for the purpose of reversing their predecessors'
decision in Roger Smith. The Law Commission draft contained a
clause differing only immaterially in wording from subsection (3), and
the commission explained it as follows:
Subsection [(3)] is a special provision designed to reverse
Haughton v. Smith [Roger Smith] so far as the ratio of that case
relied on the absence ofthe requisite mental element, and applies
to cases where the defendant is mistaken as to, or is ignorant of,
material facts from which legal consequences flow. Subsection
[(3)] therefore provides that a defendant is to be deemed to have
the requisite intent for an attempt to commit an offence if, were
the facts or circumstances of the particular case as he believed
them to be, he would be regarded as having that intent.50
The words "in so far as the ratio of that case relied on the absence of
the requisite mental element" are not a restriction ofthe first sentence,
even though they may at first sight appear to be. The commission
reckoned that if the courts were stopped from saying that a person like
Roger Smith did everything he intended to do, when in the ordinary
use of language he did not, the foundation of the decision in Roger
Smith would disappear. The commission's restrictive words are
perhaps intended to soften the sentence without altering its meaning.
Knowing the readiness of the law lords to take umbrage, the Law
Commission was doing its best to avoid saying too brusquely that their
decisions were to be reversed; but this was clearly the intention, as
appears from other passages in the Report. Therefore, although the
passage above quoted is expressed to be confined to the issue of
intention, there is not a shadow of doubt that the aim of the
Commission was to procure the complete abolition of the rule in Roger
Smith. For the lords to reverse the perfectly sound decision of the
Divisional Court on grounds so contrary to the evident intent of the
Act was a wholly unmerited slur on the judges of the Divisional Court.
50 See the Report at p. 54. See also the explicit rejection of the Appellate Committee's decisions at
p. 50.

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Appellate courts are established to correct the error

not to upset impeccable decisions in favour of their
and autocratic law—particularly when this involves
reform statute passed after full consideration and con
Law Commission, a select committee of the Commo
Office.
(4) Notwithstanding proposition (3), an attempt can b

in cases of missing object, but the scope of this
doubtful. The rule may be that (3) does not prevent c
any case where the act is independently unlawf
This is where we come to the really rum part of the s

foregoing was not rum enough.
In view of the Criminal Attempts Act, the lords
Ryan accepted that one could now commit an attem
intended victim or property was missing. This ra
when a pickpocket goes to rifle an empty pocket,
necessary, and if so where is it? And when a m
believing it to be a person, where is the unlawful a
These problems did not arise in Roger Smith, w
announce the straightforward rule that the absence of
the full offence cannot be made good,.on a prosecution
showing that the defendant believed it to exist. Sm
unqualified; but Anderton v. Ryan, by admitting e
urgent questions as to the basis of the genera
exceptions.
For reasons to be revealed presently, it is clear that the lords were,
at least dimly and reluctantly, aware of these questions. They must
have realised that answering them might put their decision into
headlong collision with their dicta. More cautious or sagacious heads
would have drawn back when they saw this problem looming up, and
would have perceived that they could not continue a defence of lawful
act. Whether they thought they had any solution of the problem is
unclear. Two alternative interpretations of their words are possible,
and it is no credit to them that they have left us in uncertainty between
the two. The first alternative, in any case, offers no solution.
(1) The first alternative is that the two lords decided to leave the
problem to look after itself. Lord Roskill, when offering the pillow
hypothetical, based his opinion on the proposition that the stabber
would be made liable for an attempt by subsection (3). He said that
"there is no doubt as to the guilty mind and the guilty act of that
defendant. But before the Act a judge would have direeted his
acquittal, because in truth his intention at the time was always
incapable of fulfilment. Since the enactment of subsection (3), the

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necessary intention is supplied by his guilty but mistaken

mind." These words seem to imply the extraordinary propos
before the Act an intention that could not be fulfilled was no intention
in law. This was, perhaps, implicit in some of the pre-Act authorities,
and it was to correct the error that subsection (3) was inserted. But to
say that the intention is now "supplied" by the doer's state of mind is
an odd way to put it. The doer's state of mind is what it always was:
intention. All that the Act endeavours to do is to set the courts right on
the meaning of this elementary concept, used and understood without
difficulty by everybody except the judges. Since Lord Roskill agreed
(at least in some places in his judgment) that persons who act under a
mistake (like the pickpocket in an empty pocket case, Roger Smith,
and presumably Ryan) intended to commit the offence they had in
view, either subsection (3) was unnecessary to make them guilty of an
attempt under the Act or subsection (3) applied to make them liable
now, whatever the position was before. Yet Lord Roskill refused to
hold that the Act made Ryan liable. On its face, his pillow hypothetical
was completely opposed to the ratio decidendi of Anderton v. Ryan.
Later in his judgment Lord Roskill offered an explanation of
subsection (3) which is particularly baffling. In items (3) and (4) of his
"summary of conclusions" he tells us that:
(3) subsection (3) covers the case of a defendant possessed of a

specific criminal intent which he erroneously believes to be
possible of achievement but which in fact is not possible of
achievement. [But] (4) subsection (3) does not make a defendant
liable to conviction for an attempt to commit an offence when,
whatever his belief, on the true facts he could never have
committed an offence had he gone beyond his attempt so as to
achieve fruition.
Putting aside the self-contradictory idea in the last sentence that a

person may bring an impossible attempt to fruition, the two
propositions are mutually opposed. For his proposition (3), Lord
Roskill evidently had in mind his pillow hypothetical, which he
specifically based upon subsection (3). (He based the empty pocket
case on subsection (2); why he made this distinction between the
subsections he does not explain.) In his proposition (4) he was
probably thinking of the case before him, and the USI case. But the
latter pair could equally have been brought under (3), and the pillow
case could equally have been brought under (4), with opposite results
in each case. By reducing his various specific opinions to abstract form
he has unconsciously revealed the confiict between them. Thefe is no
difference between the two propositions in the abstract, except that
proposition (3) declares that subsection (3) applies while proposition

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(4) denies it. The only virtue in Lord Roskill's mutually

is that they enable a court to apply the subsection or
pleases. In other words, the two rules, cancelling e
bogus.
The conclusion from this discussion is that the majority lords in
Anderton v. Ryan simply did not see the conflict between their
hypotheticals and their decision. But another explanation of their
opinions is possible.
(2) Defence counsel was naturally anxious to assist his argument by
helping the court to hold that certain notorious cases or hypotheticals
(like the pillow hypothetical) could be regarded as an attempt, while
his client could still be acquitted. To this end, he proposed a silly
solution: that these other cases could be punished as attempts if there
were some collateral illegality. This is an obvious way of partly
escaping from the mischievous consequences of the notion that a
lawful act cannot be an attempt, though none the more acceptable for
being obvious. The lords did not adopt the solution expressly, but
seem to have determined to hold it in reserve, while keeping as mum
about the whole question as possible. This seems a fair deduction from
the judgments.
On the pickpocket, Lord Bridge offered the explanation that
"putting the hand in rhe pocket is the guilty act." What did he mean by
"guilty act"? He could not have meant "morally guilty on account of
the actor's state of mind," because that would apply equally to Ryan.
So he must have meant "legally wrong." But he could not have meant
"legally wrong because it was the actus reus of an attempt," because
that would have begged the question. So he must have meant "legally
wrong apart from the law of attempt." Mindful of his own
determination to hold that an attempt requires an unlawful act (in
cases of mistake, anyway), he presumably thought that he had to find
some element of unlawfulness if the unsuccessful pickpocket were to
be convicted.
Now it is true that some unlawfulness will ordinarily be present
when pockets are picked or attempted to be picked. The pickpocket
commits an assault and trespass to goods in touching the garment of its
wearer with intent to steal, even if there is nothing in the pocket. If the
garment is hanging on a peg, the act of touching is a tortious trespass to
goods (not a crime). But why should the commission ofa tort, or of the
crime of assault, have any bearing on whether there is an attempt to
steal? No sensible reason can be suggested why the commission of
some incidental wrong should turn what would not otherwise be no
attempt into an attempt, or why its absence should neutralise what
would otherwise be an attempt.
Besides, a would-be pickpocket can on traditional principles be

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guilty of attempted theft even though he commits no wrong a

from an attempt. Suppose he is about to put his hand into
pocket (containing a watch) when the police arrest him. He has
touched the pocket, and the victim remains unaware o
happening. The pickpocket has committed no legal wrong ap
an attempted theft; yet he is guilty of an attempt to steal. No
of mistake arises.
Now change the facts to suppose that the pocket is empty. Here the
thief is frustrated in two ways; the police interpose and the pocket is
empty. Would Lord Bridge say that the thief is not guilty of an
attempt? The thief could not have succeeded on the facts as they
actually were; and there is no collateral illegality to make him guilty of
an attempt, if Lord Bridge required this. But perhaps the answer is that
the collateral illegality need not inhere in the act of attempt; sufficient
if it will be committed if the attempter proceeds with his plan.
Although, in the hypothetical, the attempter has committed no
illegality (apart from the question of attempt) at the moment when he
is arrested, he will commit an illegality (assault and trespass) if he is not
interrupted and proceeds with his plan on the facts as they actually are;
and this prospective collateral illegality is enough to make him guilty of
an attempt!
It is deplorable that we have to construct the present law from
indications so sparse of what Lord Bridge had in mind, particularly
when it looks as though the result is going to heap technicality upon
technicality. The same remark applies to Lord Roskill's judgment,
which again indicates (though not in so many words) at least the
glimmering of an idea that the law of atempt can be used if, but only if,
it is tainted by some independent, collateral, wrong—some wrong
done apart from the attempt. The point arose in this way. Lord Roskill
propounded his pillow hypothetical without giving any express
indication of whether the bedroom, bed and pillow were supposed to
belong to the victim (a person whose house is entered by an intruder)
or to the unsuccessful assassin (a would-be Macbeth). If to the latter,
there is no unlawful act, apart from the attempt; a man is entitled to
enter his own bedroom and cut his own pillow. If to the former, there is
an unlawful act of trespass to property or of criminal damage to the
pillow; but it would be absurd—would it not?—to make liability
depend on the ownership of the property. What is Lord Roskill's
opinion? Is he suggesting an irrational distinction, to the effect that it is
attempted murder only on the assumption that the defendant does
not own the property? Or is he contradicting his own requirement of an
unlawful act for an attempt, and fatally undermining the lords'
disposition of the appeal? He avoided this very unpleasant dilemma by
saying nothing that could pin him down to one view or the other.

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Certain facts point to the first alternative as the

Counsel for the defence had contended that "if one stabs a bolster
thinking it to be one's wife that is an attempt under the Act, but if o
stabs one's wife's corpse that is not an attempt under the Act, because
it is not an offence to stab a corpse." As to the corpse, counsel w
evidently going on the ancient idea that there is no property in
corpse, so that stabbing it is not criminal damage; whereas stabbin
bolster can be criminal damage. Counsel evidently thought, and w
suggesting, that whether the act is an attempt to murder depends upo
whether it amounts to some other (completed) offence like crimi
damage.
But a crop of difficulties arises. Counsel impaired his argument by
bringing in the man's wife as the intended victim. If a man stabs a
bolster thinking it is his wife, he may well be the owner of the bolster
himself, in which case the stabbing could not be criminal damage. Lord
Roskill took a similar hypothetical but altered it in two ways: he turned
the bolster into a pillow, which was an immaterial change, and he left
the intended victim indeterminate. The latter was perhaps an
important change because it left completely open whether the man was
stabbing his own pillow. If Lord Roskill thought that this question of
ownership was relevant, why did he not come out with it and tell us in
so many words that e.verything would depend on the ownership of the
pillow? Is it because it would then be too obvious that in endeavouring
to avoid absurdity he was creating greater absurdity?
It is of some interest that Lord Roskill said nothing here about
stabbing a corpse. Was this because he accepted counsel's suggested
distinction? Further detective work is necessary to find a clue to the
answer, so let us do it.
In Roger Smith, Lord Reid had expressed the opinion that it would
be "asinine" if the law made it criminal to attempt to murder a man
who was in fact already dead. Evidently, he took this case as a vivid
illustration of trying to kill someone who was not there (other judges
had previously made the same point in the more general terms). In
Anderton v. Ryan Lord Roskill repudiated the general idea that one
could not attempt to kill someone who was not there, yet he plauded
"Lord Reid's observations about the possible asininity ofthe law in this
field." In outward appearance he failed to notice that in his own
hypothetical of the pillow he appeared to contradict the opinion
expressed by Lord Reid. It is true that Lord Roskill based his opinion
in respect of the pillow case on section 1(2) of the Act, which was
passed after Lord Reid's time, but since Lord Roskill claimed to limit
the interpretation of the Act so as to avoid asininity, he evidently did
not think that his pillow dictum was an asinine application of it. So, on

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the face of things, the two lords differed diametricall

asinine, agreeing only in repudiating asininity.
The alternative is to say that Lord Roskill saw a s
difference between the corpse and the pillow. Counsel's
strongly indicates what it was. Lord Roskill must have thou
corpse case was outside the law of attempt because it is n
stab a corpse; otherwise with the pillow. In other words
the proposition that criminal attempts are confined to
there is some collateral illegality.
Against this interpretation is the fact that Lord Rosk
expressed it; and in particular made no mention of it in i
(4) of his summary of conclusions (discussed above). In ite
summary he put the empty pocket case under subsection
requiring an illegal act; and Lord Bridge concurred. Did t
or did they not, require the finding of a "guilty act" for lia
empty pocket case? If they did not, why did Lord Bridg
trouble of identifying it? If they did, why did they n
requirement in the summary of conclusions? If indeed th
counsel's distinction, they could not have wrapped it
obscurity.
No doubt, if they intended the distinction there was a
reticence about it. The idea that a man who stabs a pillow
for his wife is or is not guilty of attempted murder dependin
of the spouses owns the pillow would, if it were accepted by
bring the law into great disrepute. It would evoke a wa
ridicule, mixed with disbelief and contempt.
In uttering his dictum about the pillow-stabber, Lord
not mention whether he supposed that the intended victim
the intended victim was already dead, would or wou
pillow-stabbing then be attempted murder? If Lord Rei
about corpse-stabbing not being attempted murder dep
the impossibility of killing a dead man (which is what he un
meant), then it must apply equally to pillow-stabbing
intended victim lies dead elsewhere. But if the corpse rule is
supported on the ground that stabbing a corpse is not an off
trying to kill someone by stabbing a pillow not belonging to
is an attempted murder, whether the intended victim is dea
I would like to see the lords pronouncing upon the
gruesome facts, which have happened (though not in Brit
thought he was raping an unconscious woman, who in fact w
that attempted rape? Necrophilia is not as such an offen
the lords say that the act is innocent? Very likely the answe
that unauthorised interference with a corpse (sexually m
otherwise) is an offence at common law, and that this fact,

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extraordinary as it may appear, establishes the offe

rape. But if this is so, Lord Roskill was wrong in su
suppose) that the corpse-stabbing case is not attemp
If there is a rule accepting collateral unlawfulness as
an attempt, all sorts of questions arise. Very likely
guilty of attempted theft (or would have been so g
changed facts). Would that make him guilty of attemp
Although a collateral unlawfulness rule would ren
sometimes possible, it would not assist the prosecu
Shivpuri, nor in a case like Nock.51 The Appellate Co
the latter, before the Act, that persons who attem
cocaine from a chemical substance that did not contain it were not
guilty of conspiracy to possess cocaine, the court following authorities
on attempt. This was a case of "missing object" (there was no cocaine
to be extracted, although the defendants thought there was), and since
the missing object rule has now gone, it may seem at first sight that the
conclusion would now be otherwise. So it would, apparently, if the
defendants were operating with stolen material. But if it was their own
material, as doubtless was the fact in Nock, they would, apparently,
still be let off, because their act would be "innocent"!
The depressing conclusion is that the lords' acceptance of the
proposition that a lawful act cannot constitute an attempt was
thoroughly wrong-headed. The proposition either affirms the obvious
(that attempts are unlawful acts) or imposes an illogical and impolitic
limit on the law. The lords would not have applied their general
"lawful act" doctrine if they had had to determine my Bluebeard
hypothetical. They espoused this doctrine in Anderton v. Ryan
because they thought that Roger Smith was a good authority for it, and
the doctrine suited their purpose because they wanted to let out people
like Ryan. It did not dawn on them that their test (even if limited to
mistakes of fact) would also let out some attempters whom they would
undoubtedly wish to treat differently. The collateral illegality rule (if it
exists) does something to limit the damage, and may receive a very
muted welcome on that account; but it is thoroughly arbitrary and
illogical. Just as on a previous occasion not long ago,52 the lords have
upset clear and satisfactory law in favour of obscure and inconvenient
law.
The distinction between things and attributes

If the collateral illegality doctrine is rejected, the position is that a
mistake as to the existence of a relevant object (thing or person) does
51 [1978| A.C. 979.

52 Wilson [1984| A.C. 242 (included offences). See [1984] C.L.J. 290.

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C.LJ. The Lords and Impossible Attempts 71
not preclude liability for an attempt, but mistake as to the stole

goods does. "Stolenness" must belong to some category; what
obvious answer would be that the distinction is between mistake as to
the existence of an object, which is consistent with an attempt, and
mistake as to the presence of an attribute (characteristic) of an object,
which is not.
The distinction would offer a reason why there is no attempt in the
USI hypothetical. Lord Bridge thought it would be surprising if a man
can be convicied of attempted USI with a girl under 16 when in fact,
unknown to him, the girl has attained 16; and Lord Roskill was of the
same opinion. This is a mistake as to the girl's attribute, her age.
If the thing-attribute distinction is what the lords meant, one can
only say, putting the matter in the gentlest possible terms, that it was
not properly thought out.
In the first place, no reason is suggested for it. It is distinguishing
for the sake of distinguishing. And one may add, although the lords
were not interested in the point, that the distinction is not in the Act.
In the second place, it produces absurdities. A conspicuous
example is its failure to show why theft and handling are treated
differently in the law of attempt. Suppose that a receiver of stolen
goods goes to a rendezvous where he is to pick up a parcel of stolen
currency notes. When he gets there, he finds no parcel. Logically, this
should be an attempt to handle. The goods in question are physically
absent; it is an "empty pocket" case in the context of handling. Before
the Act of 1981 there were differences of judiciai opinion on whether
there was on these facts an attempt to handle,53 but now the answer
should be clear. There is a mistake as to the existence of a thing. If this
is so, why distinguish between putative stolen goods where no goods
are there, and putative stolen goods where goods are there but not
stolen goods?
The incongruity of distinguishing between theft and handling may
be shown more vividly by supposing the following hypothetical,
suggested by the one put by Lord Bridge. The police are expecting a
receiver to arrive to take over the proceeds of a bank robbery. The
stolen notes are no longer available, having gone for fingerprint
examination, so, remembering Lord Bridge's suggestion, the police
leave a packet of torn newspapers for the receiver to collect, which he
does. If he is charged with attempted theft of currency notes the
prosecution will succeed. It is a case of missing object. What if he is
charged with attempting to handle stolen currency notes? Is it still a
case of missing object, or do you now say that such paper lacked an
attribute (stolenness) required for the full offence? To reach different
Law Corn. No. 102 p. 31.

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conclusions on charges of theft and handling in th

wholly unreasonable. A possible opinion is that An
be distinguished on the ground that in this hypot
goods are not present at all, whereas Ryan took
expected to take. But what is the rational ground
Such pedantry is the outcome of the lords' effort
regarded as "manifestly absurd results" and "asini
A similar problem can arise with attempted US
ever prosecuted. A man goes to a bed intending to ha
of 15. (1) The expected girl is not there, the shape
pillow. (2) The girl is there, but she is 16. Are we to
criminal attempt, being the absence of the object,
attempt is not committed because the absent fact rel
attribute? Could any distinction be sillier? The fact o
absent in both instances.
The doubts besetting a distinction between subjects and their
attributes results from a fact too little appreciated, that the distinction
is purely linguistic. Subjects are bundles of attributes. There are no
attributes without subjects, and if we define the notion of an attribute
sufficiently widely, there are no subjects without attributes.54
Factual and legal ingredients of crime

An alternative explanation to be investigated is that the lords had
in mind to divide the ingredients of a crime into two classes, "factual"
and "legal." There can be an attempt, according to this theory, when a
factual ingredient is missing (a living person who is killed, a wallet in
the pocket), but not when a legal ingredient is. The stolenness of goods
is a legal concept and is therefore a legal ingredient.
As this illustration shows, the distinction has a certain explaining
power, at least superficially. The distinction is far from being clearly
stated in the opinions, but they perhaps give some hints of it.
Speaking of the empty pocket rule, Lord Roskill said that under the
old law the thief had to be acquitted "because he was attempting to do
what was factually impossible." Happily, he added, section 1(2) has
altered this. There seems to be some idea here that the person who
handles goods mistakenly believing them to be stolen is attempting to
do the legally impossible, a rule that the subsection has not affected.
We seem to be invited to believe that stolenness is in some peculiar way
a legal ingredient, as distinct from a factual ingredient, of handling.
The attempted thief makes a mistake of fact (the presence of
something in the pocket); Ryan made a mistake a law, as to whether
the article was stolen.
54 See (1945) 23 Can.B.R. 271, 380.

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The proposition has only to be stated for the bloomer to

obvious—or so I would have thought. Almost certainly Rya
make a mistake of law. Although the stolenness of stolen
partly a question of law and cannot (for example) be phot
as "facts" can, stealing involves an act of appropriation
photographable and (partly) a fact. The word "stolen,"
sometimes thought of as describing a "nonphysical propert
article, is in fact a statement of the history of the articl
appropriated etc.) and that it is consequently a "stolen" arti
eye of the law. Ryan is most unlikely to have mistaken the law
(or the law of property for that matter); she thought that the
had been (in legal language) dishonestly appropriated with
deprive (fact, or very largely fact).55 Logically, there
proposed distinction, if accepted, should not have acquitted
Not only dos the proposed distinction fail to do the work
of it in explaining the decision in Anderton v. Ryan, but it is i
All the ingredients of a crime are factual ingredients, in the se
they refer wholly or partly to actual events, and they are
ingredients, in the sense that they are ingredients required by
the crime.
For some elements of a crime the second part of this proposition

may seem to run counter to common sense. The victims of murder, it
may be said, are ingredients of a crime, but they are also real people,
not legal notions. They are facts. Yes, they are facts, but as regards the
law of murder they are facts defined or delimited by law. We are
protected by the law of murder because we are, in the old phrase,
reasonable creatures in rerum natura. An unborn child does not come
within that expression, and so is not protected by the law of murder.
Killing is a fact; killing in murder is almost entirely a fact, but there is a
little bit of law in it, not only because the law has to define the time of
death but because the causal connection between the defendant's
conduct and the death must come within rules of law in order to
constitute a "killing." The legal ingredients of crime almost always
involve questions of both law and fact—though the law may be so clear
and obvious that we do not think of it as coming into the picture.
One ought not really to talk of legal ingredients at all; they are
"legal" only in the sense that they are specified in the law creating the
crime. The position is simply that crimes have certain components.
These may involve both legal and factual questions in mixed
55 On this point, as on others, the lords seem to have accepted uncritically the argument of counsel
for the defendant. that her "error is not one of fact but one of law or of mixed law and fact" (| 1985 j
A.C. at 568B). However, a certain degree of hcsitation about the argument is suggested by the fact
that the lords did not repeat it in express terms. In the rare cases where an attempters mistake
relates toa question of criminal law, he may be acquitted on the ground that a mistaken belief in a
criminal prohibition cannot create liability: see 135 N.L.J. 505 n.2.

117.2ff:ffff:ffff:ffff:ffff on Thu, 01 Jan 1976 12:34:56 UTC
proportions, but there are no exclusively "legal

opposed to "non-legal" ingredients.
The proposed distinction, then, is logically un
addition no reason can be found for drawing it. Th
started because the judges failed to distinguish bet
crimes that cannot be attempted and actual crimes
judges, having been defeated by Parliament (in word
general issue of impossible attempts, may now fall b
ditch" position, whereby some mistakes offact are w
as mistakes of law, so that some impossible attempts
punishable are still wrongly classified along with att
imaginary crimes. Under the scheme ofthe 1981 Act
can be attempted even though the defendant erroneous
an ingredient of the crime was present when it was no
make no difference whether the ingredient was so-
so-called legal.
Nor would the proposed distinction have the resu
were particularly anxious to secure: the failure of
prosecution against a man who has USI with a girl of 1
be under 16. Girls under 16 are flesh and blood, n
lawyers' imagining in the same way as mermaids w
sailors' imagining. (The law, of course, defines the p
which a girl becomes 16, but let us assume that the
well over 16.) The man's mistake as to her age is cle
fact, not as to law. From this point of view it may
mistakes a factual ingredient, not a legal one—though,
think it an error to try to distinguish.
The trouble that would arise with the proposed di
further illustrated by considering attempted th
"property belonging to another." Now "property" is fr
view a fact: you can photograph it, kick it, destroy
legal concept: it can shift without the physical thing m
property in percolating water, although this is a physi
can have "property" in a copyright although it is not a
"Belonging to another" is to quite a considerable d
offact, but of course it involves legal notions as well. S
attempts to steal what is actually his own property;
attempt? Lord Bridge appears to have thought not: he r
as the "classic case" of no attempt, put by Bramwell
true that the question whether there is propert
another" can in some circumstances be one of law, b
fact (did some other person in fact acquire the pro
56 So also Lords Morris and Dilhorne in Roger Smith [ 19751 A.C. at 502B

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purchase etc.?). When you buy a thing and so get ownership

transfer of the ownership is performed invisibly by the law, but
of buying is a fact. Whether it is fact or law should be of no im
here: either way, the presence of property belonging to anoth
ingredient of theft. The courts may perhaps now distinguish
attempting to steal from an empty pocket (attempted thef
attempting to steal a thing that is yours, though you do not know
an attempt); but the distinction cannot be derived from the w
the Act. If you can attempt to steal when no "property of anoth
there, why cannot you attempt to steal when property is there b
property of another? If there is no property, there is no prop
another; if there is property but not any property of another, t
no property of another; how does the Act enable the co
distinguish?57
Notwithstanding these arguments, I would not be astounded if
lords resolved the appeal now pending before them in Shivp
distinguishing Anderton v. Ryan. It may be said that mista
harmless powder for heroin is a mistake of fact, while Ryan
mistake of law. Ryan could then be left in possession of her v
while practically every other case is distinguished from hers. But
speculation.
(5) Proposition (3) does not preclude conviction of attempt if

mistake relates only to the adequacy of the means used
As has been seen, inadequacy of means was never regard

hindering a conviction of attempt, and this rule has evidently su
the Act. It follows that the lawful act defence does not apply
have been expressed whether giving some completely ha
substance, such as pure water, can be an attempt to murder
believed to be a poison, but there is no reason why it should
The Law Commission considered the point and concluded
would be impracticable to try to distinguish between a very
poison and a harmless substance.58 Giving water is an object
lawful act, but, since the question is one of adequacy of mean
The point would have arisen in Anderton v. Ryan if the defendant had been char
attempted theft. A receiver of stolen goods is generally guilty of stealing them as well,
recorder that Ryan bought was not stolen she presumably got a good title to it by purch
argument might have been advanced that she could not be guilty of attempted theft of wha
fact her own property. In Roger Smith j 1975) A.C. at 489 Lord Hailsham said that a charge o
or attempted theft ought properly to have succeeded against the defendant. It is not clea
he based this remark on the assumption that Smith took part in the original theft, or on wh
did by way of intended handling. but anyway it was not a case where the goods had be
defendant's property. Assuming that Smith could have been convicted of attempted thef
goods (because they were not his property). it would be strange if Ryan could not have
convicted because she became the owner of the recorder.
See the Report at p. 50.

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lawful act defence can be held to be inapplicable. For

it can be held to be inapplicable to voodoo attempts
The unhelpfulness of the means-end distincti
situations has been observed before.59 The framers
Attempts Act intended to consign it to oblivion, but th
of the lawful act defence means that it remains nec
the courts have not shown any great readiness to
defects of means a broad scope. It is difficult
impossibility in Nock™ was not regarded as a defect
was not.
At this point I can propose a statement of the present law i

richness—or arid technicality. An otherwise lawful act can gen
a criminal attempt, but when an attempt miscarries owing to
of fact, it is not criminal unless (1) it relates to the existe
object (person or property) and (perhaps) there is some
illegality, or (2) (perhaps) there is anyway some collateral i
whether the mistake relates to the existence of the object or n
the mistake relates to adequacy of the means used.
This, then, is the remarkable result of Anderton v. Ryan. T
have recycled the errors of Roger Smith, including the c
between legal impossibility (the imaginary crime) and mista
the manipulation of the notion of intention; and the tota
assumption that lack of an actus reus of the completed cri
that there is no actus reus for the attempt. To these they have
added the notion that an attempt requires some indep
unlawful act. They have held, further, that the astonishing
of legal misunderstandings in Roger Smith can be read int
notwithstanding its known and evident intention to purge
them. And all the talk in the judgments in Anderton v
"intention" and "lawful acts" is simply dust in our eyes (an
dust that the judges propelled into their own eyes); the rule
from the case concerns only mistakes of fact.
Some of the trouble in which we are landed could have been
avoided (even granted the desire of the judges to quash Ryan'
conviction) if the lords had formulated the new subrule that they
professed to find in the Act, in accordance with the practice propose
by Bennion.61 At least we would then have been enlightened upon
what the case was supposed to have decided.
59 Above at n.25:
60 [1978JA.C. 979.
61 Francis Bennion, Statute Law, 2nd ed., 229, 237-243.

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(6) Proposition (3) may not preclude conviction of attempt i

mistake did not go to the attempter's motivation
I mention this possibility because it has been suggested by some w
of note, not because I believe in it myself.
The rule was originally suggested by Professor J. C. Smith
later, with variations, by others. The proposal is that an attempt
generally be judged on the facts as he mistakenly believes them t
but only if his mistake relates to his "purpose" or "objec
"motive." Of these three words I personally prefer "motive
"purpose" is frequently assumed to be a synonym for intent
the same may be true of "objective." But the choice of words
much matter.
According to the proponents of the rule, the test question is: are
the occupiers of our rogues' gallery crestfallen or still cock-a-hoop
when they discover the facts? Those who regard themselves as having
failed can be guilty of an attempt; those who feel they have succeeded
cannot be (unless the failure was due to mere inadequacy of means).63
Examples of the positive side of this rule are obvious: consider
again the star-crossed thief who tries to steal from an empty pocket. He
is frustrated, and so commits an attempt. (At any rate if there is
some collateral illegality.) To take some examples ofthe negative side:
the man who attempted USI with a girl wrongly believing her to be
under 16 is not guilty of an attempt if (as is almost certainly the case) his
desire was merely for sex and not particularly for sex with a girl under
16. That the girl was 15 was part of his belief but not part of his motive
or purpose. The element to which the law attaches importance
(nonage of the girl) was neither present on the facts nor important to
the attempter. For a similar reason (it may be said), Ryan was not
guilty of attempted handling, for although she believed the article she
handled to be stolen, the stolenness was not part of her motive. Her
motive was only to get a cheap recorder, and she would have been even
more pleased if she had known that her bargain recorder was not
stolen.
These two examples show that the proposal, if accepted, reaches
the result that the lords wished to reach in Anderton v. Ryan, while
! See his article in Auckland Law School Centenary Lectures (1983) 25.
1 Cp. the discussion by J. C. Smith in (1985) Crim.L.R. 506. At p. 39 of his article cited in the
preceding note, Smith points out that the vital fact that Roger did not know was that the police
had taken possession of the goods. When Roger discovered the truth on that point he was already
under arrest, and if he was versed in the law he must then have been relieved to know that the plan
had failed to the extent of making him safe from liability for handling stolen goods. So in that sense
he was perhaps glad to have failed! But it must have been, in W. S. Gilbert's words, "modified
rapture."
The test as worded above presupposes that the attempt failed only because of the error of fact.
If it failed for some other reason, one must ask whether the defendant would have regarded
himself as succeeding if his plan had succeeded apart from his error of fact.

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providing a conceptual means for limiting the dest

appears to work upon the scheme of the Act. The
explain why, in the opinion ofthe lords, the empty po
pillow-stabbing case can now be regarded as crimi
desire to steal or to murder (as the case may b
attempter's motivation, and he is frustrated in that r
The distinction may explain why Lord Reid in R
thought that attempted bigamy is not committed whe
that the woman he is marrying is already married, bu
the wife's husband has died just before the ceremon
finds that he is validly married to the woman, he is p
His object in going through the ceremony was to o
advantages of marriage—sexual intercourse, and/or
the woman's property, and/or perhaps to obtain a
regularity for the cohabitation (though that motive
likely than formerly). If the ceremony is non-crim
much the better. None of the man's objectives
distinction also indicates that when a man thinks
property by deception, but it so happens that the
makes is true, he is not guilty of attempting to obtain
the better if what he said was true; he has got the mo
Bridge in Anderton v. Ryan said it would be surprisin
were possible; and the analogy of the pears case, w
formula was invented, may seem to support the sam
So far so good. Notwithstanding these plus point
theory has to meet formidable objections.
(a) The most obvious objection is that the sugge
based on motive does not rest on grounds of policy
(b) Normally, motivation is irrelevant for in
receiver of stolen goods would prefer to have non-s
same price, if given the choice; but if he knows or
are stolen, he intends to receive stolen goods. We h
person intends his act in the circumstanees that he kn
exist. This being the rule for consummated crimes, no
be suggested why it should differ for attempts.
(c) Human motivation is complex and difficult to
one reason why the law does not normally go into
liability. It considers the immediate intention, never m
intention. Bringing motive into issues of liability can
problems, advantageous to no one but practising la
hearted examiners. Perhaps the attempted bigamist
[1975J A.C. at500B. But see Law Com. No. 102 p. 51.

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be a bigamist, and not to be so tightly knotted that he

encumbrance of a wife. In that case he has at least partly fa
"purpose," and the motivation theory would presumably allo
be convicted of attempted bigamy; but if he is happy to fin
properly married the motivation theory would give him a defe
an odd result.
In Shivpuri the defendant thought he was smuggling in heroin, but
it turned out to be a harmless powder. If he had bought it as heroin he
would (had he not been arrested) be disappointed. But if he was paid in
advance merely for bringing the stuff in, its nature would be of no
interest to him. He would not be concerned by the fact that his
employer had been swindled, and the motivation theory would not
prevent him from being liable for attempt, if he would otherwise be
liable. Is it reasonable that liability for attempt should rest on such
considerations? Would it not impose an undue burden on the
prosecutor to have to prove beyond reasonable doubt that the
defendant felt dished?
Again, consider the man who stabs a corpse. When he finds that his
intended victim is already dead, is he pleased or does he feel
frustrated? If he wanted the man dead, he must feel pleased. It is
unlikely that he will feel deprived of the pleasure of having done the
killing himself, but if he does he may be liable for an attempt under the
theory, which otherwise he would not have been.
(d) The link between the motivation test and its proposed outcome
is strange. On ordinary utilitarian theory, the more rewarding
antisocial conduct is, the greater the need for punishment to
counterbalance the temptation. The motivation rule would work
contrariwise. The more satisfaction the criminally-minded person got
from his attempt, the less likely he would be to be guilty of an attempt.
(e) In the examples given, the man's motivation does not affect his
moral guilt. Any reason for punishing him for an attempt holds good
whether his motive was one thing or the other—whether it was merely
to have sex or to add to his gallery of under-16s with whom he had had
sex; whether it was to have sex or to get some advantages of marriage
without the financial responsibility.
(/) The motivation theory is logically and jurisprudentially
suspect. The question whether a person "did what he wanted to do"
often does not admit of a sharp answer corresponding to the
theoretically sharp question. Take a person who attempts to obtain
money by deception, where the other party is not deceived. Obviously,
he would not be allowed to argue that his real intention was merely to
get money (no harm in that). The full truth is that he intended to get
money by deception. Then take the case previously discussed, where
the intended victim sees through the deception but gives the cheat the

117.212.144.26 on Tue, 14 Sep 2021 07:47:19 UTC
money in order to entrap him.65 If one applies the ste

asks whether the cheat succeeded in doing what he int
answer is "yes and no." Yes, he succeeded in getting m
deceiving. There is no profit in involving a simple
complexities: obviously the cheat should be guilty o
(g) The lords did not rest their opinions on t
motivation. Their idea was that if the act is innocent a
of attempt, the defendant's intention cannot make
attempt. The motivation theory is simply an effort to
from ill-advised lawmaking by the judges based upon
misunderstanding of the notion of actus reus and muddling of the
distinction between imaginary crimes and mistake of fact. The judges'
brain-children should have disappeared when the proper distinctions
came to be understood.
(h) The limitation upon the crime of attempt in terms of
motivation does not appear in the Criminal Attempts Act, which wa
meant to be an exhaustive statement ofthe law. The Act was intended
by the Law Commission to produce a guilty verdict in the handling case
and in the hypotheticals about the USI, the umbrella and bigamy as
well. This appears from the commission's Report.
Realisation of difficulties of this kind caused Smith to abandon his
proposal and to agree with the Law Commission's desire to be shot of
the whole question of impossible attempts.66 Now, however, Smith
advances his suggested rule again, purely as a pis aller. He believes
that, since we are saddled with the decision in Anderton v. Ryan, the
rule is the most acceptable conceptual way of making the best of a bad
job (my words: Smith speaks to much the same effect when he refers to
seeing "what can be salvaged from the wreck of the Law Commission's
and Parliament's intentions").67 While I can see the attraction of this
opinion, my general judgment is that the objections to it are too great.
Better to accept the defence of mistake of fact and wait for some
sufficient scandal to produce a call for a Criminal Attempts Act Mark
II to get rid of it.
Did the Act of 1981 Embody the Right Rule?
The Act of 1981 adopts the putative fact theory, but the argum
that approach, in its unqualified form, is not all one way. Hi
this article I have been acting as counsel for the prosecution
Ryan and ofthe Appellate Committee!), but some words may
for the defence.
65 Above at n.27.
66 See his article cited above n.62.
67 (1985) Crim.L.R. 505.

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When the charge is of a consummated crime, it is a mere trui

say that all the elements of the crime must be proved. Parliamen
specified the ingredients that must exist before full criminal liab
established. Then is it open to the courts to punish people f
attempt where such ingredients have not been established? Parlia
can, of course, authorise the courts to punish in this way, and
what it intended to do in the Criminal Attempts Act. But is it w
write the courts such a blank cheque? Does not punishment
basis of putative facts punish people for their thoughts, in su
even though not in literal truth? Although the lords were w
disregard the Criminal Attempts Act as they did, was there not a
basis for their dislike of the legislative solution?
Lord Roskill wished to find an example of absurdity resulting
the literal terms of the Act; but the one he selected, the USI
hypothetical, may not be thought very convincing. Three others make
a better case.
(1) The putative fact approach would in practice result in setting
aside the temporal and spatial limits upon the penal law. Suppose a penal
statute comes into force at midnight. A man may think he is acting at
12.05 a.m. (after it has come into force), when in fact he was acting at
11.55 p.m. (before it came into force). Is he guilty of attempting to
commit what would be an offence under the Act if his facts were right?
(Observe that this is not a question of mistake of law, a mistake as to
what the Act says; the mistake concerns the facts.) A man may think he
is acting within the bounds of territorial jurisdiction, when he is in fact
acting just outside those bounds. Or a person who is not a British
citizen but who believes he is a British citizen (as a result of mistaking
his birth-place) may assist an enemy abroad.68 Is he guilty of attempted
treason? If a person is not subject to the law of treason, how can he be
guilty of attempted treason?
The courts (or Parliament) could solve this particular group of
problems by announcing that the law of attempt cannot be used to
defeat temporal and jurisdictional limitations upon the law, in the
absence of express words or necessary implication. This would be an
acceptable principle. The temporal and jurisdictional limitations upon
the criminal law are part of constitutional law or criminal procedure or
the general part ofthe criminal law, and can be applied to restrict the
law of attempt just as they restrict the law relating to completed
crimes.
(2) My second type of problem concerns a particular type of
justification. A statute may make it an offence to pursue some activity
without a licence. A person may act believing he has no licence, when
68 As William Joyce apparently did.

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in fact he has one. For example, a driver stopped b

untruthfully assert that his wife was driving; the pol
closely, and it transpires that he was driving, and beli
disqualified from driving, but in fact he had not
attempting to drive while disqualified? It needs no dem
an affirmative answer would be strange, though it
answer that was intended to be given (in theory) u
Attempts Act.
(3) The third hypothetical is somewhat similar. I
Dadson,69 the defendant arrested a person for unlaw
taking wood, and shot him to prevent him esca
arrested had twice been convicted before, and the a
date, the shooting) would consequently have be
defendant had known this; but he did not know it, so
consequently, the shooting) was held to be unlawful
argument for saying that the decision was wrong. L
disqualified driver, the defendant was in fact licensed
act he did, although he did not know it. To all outward
was lawful, and his ignorance of fact should n
otherwise unlawful act a crime.70 The policy of this
by Parliament in the Criminal Law Act 1967, s
provided that "any person may arrest without warran
or whom he, with reasonable cause, suspects to
committing an arrestable offence." The wording m
committing an arrestable offence can be validly arr
the arrester lacks a reasonable cause for suspectin
though he does not suspect him. The state of the a
irrelevant once it is established that the objective f
arrest were present. If this is the proper rule, it woul
that the arrester is not only guiltless of assault and fa
in arresting, but is (or should be) guiltless of an at
these crimes. Yet on the putative fact theory of attem
guilty of an attempt if, on the facts as he believed th
would have been criminal. A similar problem can
self-defence, where a person's act is in fact necessar
but he does not realise this.
The particular problems I have just discussed could be dealt with in
some sort by drawing a distinction between negative elements of
offences and justifications. One could say that driving a motor vehicle
69 (1850) 2 Den. 5, 169 E.R. 407. Sce Williams, C.L.G.P. 2nd ed., 23.
70 It was not exactly a case where the defendant believed his shooting to be criminal, but a case where
he did not believe facts to exist that would make it legally innocent. Logically, the latter case is a
fortiori. It is worse to shoot where the shooter believes that the other party is not subject to arrest
than to shoot at him not knowing whether he is subject to arrest or not.

117.212.144.26 on Tue, 14 Sep 2021 07:47:19 UTC
is generally an offence, but the possession of a driving lic

justification; and this justification avails whether the charge
full offence or of an attempt. However, the distinction b
negative elements of offences and justifications is principa
words and emotion, and is too tenuous to make a satisfactory b
a rule. The usual way to express the law relating to driving lice
say that driving without a licence is an offence; absence of a lic
one of the negative elements of the offence. We do not thin
licence as a justification for doing something that is prima faci
Self-defence and lawful arrest can be regarded as justificat
they can also be stated as negative elements of offences; it is si
matter of drafting. Although an express provision for justifica
relation to attempts would be unexceptionable, and would h
utility, particularly as a guide to prosecutors, the case for
overwhelming.

117.212.144.26 on Tue, 14 Sep 2021 07:47:19 UTC

Glanville Williams, The Lords and The Impossible Attempts

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The Lords and Impossible Attempts, or Quis custodiet ipsos custodes?

Author(s): Glanville Williams

Stable URL: https://www.jstor.org/stable/4506828

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THE LORDS AND IMPOSSIBLE ATTEMPTS, OR

Stephen J. once said that the drafting of a statute should a

The Interpretation of the Criminal Attempts Act

It is important to understand the precise point of law under discuss

Re Castioni (1891) 1 O.B. at 167.

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impossible. Impossibility on the ground of th

Roger Smith f 1975] A.C. 476 at 494C.

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5 Op. cit., last note, pp. 377-378.

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belief was mistaken. In attempt, the putative facts a

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In Roger Smith1 the Appellate Committee excluded

The Criminal Attempts Act

7 (1975] A.C. 476.

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These provisions should have been enough to

A person may be guilty of attempting to comm

The rather flaccid phrase "may be" was evident

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who stole the things or a professional handler. These are

(19851 A.C. at 579E. See more on this below at nn.48, 49.

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when your end is impossible, the answer is that ac

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following hypothetical.18 If the law of attempt is wide

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confusions (which had been fully pointed out in the literatu

Disregarding the Law Commission

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Perhaps a reason for the apparent frigidity shown b

22 A.L.I. Model Penal Code s.2.02(2)(c) (POD).

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the Act becomes "an offence to which this section applies")

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announcement that the differences were "significant" L

The Present Law

(1) An attempt need not be physically possible

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In the fog that has descended on the Act, we must

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(2) An attempt may be committed by an otherwise lawful act

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of an attempt to obtain by deception? Is his intende

(3) No attempt ifthe attempter makes a mistake offact

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defendant made a mistake of fact, so that his conduct

The steps formula

Steps on the way to the commission of what would be a crime, if

The beguiling principle expressed in the second limb of this

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If we assume these facts, the steps formula, read

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(i) Suppose the sellers sent a pro forma invoice for 46 lb o

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this respect). Suppose, then, that Macbeth goes to m