Attempt
The law of criminal attempts covers three separate fact situations.
The first, a thwarted attempt, is when the attempter's criminal object is frustrated in some way prior to his executing the offence. Thus:
Case 1. Adam, intending to shoot and kill Eve, raises his gun and cocks the firing pin. Before he has a chance to pull the trigger, Cain knocks the gun from his hand and Eve escapes injury.
The second, a failed attempt, is when the attempter does everything he intended to do in order to effect his criminal project but this was inadequate to the task. Thus:
Case 2 Adam, intending to shoot and kill Eve, pulls
the trigger. At the same time Eve bends over thus causing the bullet to miss its
target.
The third, an impossible attempt, occurs where
the course of conduct embarked upon by the
attempter to achieve a supposed criminal ambition was incapable of
resulting in the commission of the substantive offence. Thus:
Case 3. Adam, intending to shoot and kill Eve, fires a gun at her
sleeping form. Unknown to him Eve had died five minutes earlier.
A Justification for punishing attempts In each one of
the above three situations Adam will be guilty of attempted murder. The
justifications for criminalizing and punishing such activities even though no
obvious harm has occurred follow traditional lines. From the retributive point
of view an attempt carries its own social harm. In Cases 2 and 3 harm is done to
the interests of Eve, also her family and wider social network whose emotional
wellbeing will be damaged by the assault on
her autonomy. At a broader level collective interests in security are also
harmed. This provides a general justification for criminalizing attempts and
would justify the punishment of Adam for his attempts, at least if Eve (or
others) were aware of the attempt made upon her life. If she was not, and in
Case 4, it might be argued that the social impact of Adam's conduct was too
trivial to justify punishment. However, retributive denunciation would seem to
be deserved as much for the 'wrongness' of
the conduct as for the harm it causes.8
From a utilitarian point of view it is possible to justify criminalization and punishment even in the absence of harm. Punishing attempts may act as a separate deterrent to punishing the substantive offence for those who lack confidence of success.9 It may also enable offenders to be isolated before they have the chance to cause harm. This both incapacitates dangerous offenders and may provide the context within which s/he may be rehabilitated.
8. See Chapter 2; A. Ashworth 'Criminal Attempts and the Role of Resulting Harm under the Code, and in the Commons Law' (1988) 19 Rutgers Law Journal 725.
9. H.L.A Hart Punishment and Responsibility (1968) 128 et seq.; James Brady 'Punishing Attempts' (1980) 63 The Monist 246 at 249.
Re-produced from 'Criminal Law Doctrine & Theory' by William Wilson (Longman, 1998).