Criminal Attempts

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ISBN: 9780198262688 | 019826268X
Cover: Hardcover
Copyright: 3/27/1997

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This book reflects the belief that a careful study of the Law of Attempts should be both interesting in itself, as well as being a productive route into a number of larger and deeper issues in criminal law theory and in the philosophy of action. By identifying the legal doctrines which courts and legislatures have developed or adopted, the author goes on to ask whether and how they can be rationalized or rendered persuasive. Such an approach involves paying detailed attention to cases. The book is also unusual in that it grapples with English, Scots and US law, showing great breadth of research as well as philosophical sophistication. This is a work which is likely to become a seminal study and a major contribution to the study of law and legal philosophy.

Table of Abbreviations

(1)

Table of Cases

xxi

I PROBLEMS IN THE LAW OF ATTEMPTS

(144)

1 The Fault Element in Attempts

(28)

1.1 An 'Intent to Commit an Offence': I

(4)

Content and Context

(1)

Attempted Manslaughter

(3)

1.2 Acts, Circumstances, and Consequences

(7)

Not Requiring Intention as to Circumstances

(2)

Distinguishing Acts, Circumstances, and Consequences

(2)

`Missing Elements'

(1)

`Alternative Intentions'

(2)

1.3 The Meaning of `Intention'

(5)

`Direct' and `Oblique' Intention

(4)

Intention as to Circumstances

(1)

1.4 An `Intent to Commit an Offence': II

(7)

Attempted Homicide

(2)

Circumstances and Consequences (Again)

(4)

1.5 Why Require Intention?

(4)

2 The Conduct Element in Attempts

(43)

2.1 The Search for a Test

(2)

Two Questons

(1)

2.2 `First' and `Last' Acts

(7)

`First Acts'

(2)

`Last Acts'

(5)

2.3 `Proximate' Acts

(6)

Stephen's Criterion

(1)

`Probale Desistance'

(2)

`Dangerous Proximity'

(2)

2.4 `Unequivocal'Acts

(5)

Salmond's `Uniquivocality' Test

(1)

Objections to the `Uniquivocality' Test

(3)

2.5 `Substantial Steps'

(4)

Broadening the Law of Attempts

(3)

Objections to the `Substantial Step' Test

(1)

2.6 `More than Merely Preparatory' Acts

(4)

`In the Process of Committing' an Offence

(2)

The Indenterminacy of the Test

(1)

2.7 Questions of Substance and of Method

(5)

The Jury's Role

(2)

Different Conceptions of Crimminal Attempts

(2)

The Role of Examples

(1)

2.8 `Voluntary Abandonment' as a Defence

(10)

The Relevance of Voluntary Abandonment

(2)

What Makes Abandonment `Voluntary'?

(1)

Does it Matter when an Attempt is Abandoned?

(1)

The Model Penal Code's Rationale for the Defence

(2)

Objections to the Defence

(4)

3 `Impossible Attempts'

(40)

3.1 Three Paradigm Examples

(4)

The Relative of Impossibilities

(2)

3.2 Apparent and Intrinsic Impossibilities

(5)

`Present' and `Apparent' Abilities

(3)

`Intrinsic' Impossibilities

(2)

3.3 Missing Victims and Missing Objects

(7)

Missing Victims

(1)

Missing Objects

(3)

Missing Objectcs, Apparent Abilities, and Attacks

(3)

3.4 `Legal Impossibility' I: Mistakes of Law, Legal Obstacles

(6)

Mistakes of Law

(4)

Legal Obstacles

(2)

3.5 `Legal Impossibility' II: `Doing All She Intended to Do'

(8)

(Mis)Identifying the Agent's `Intended Acts'

(2)

Handling Non-Stolen Goods

101

(2)

Haughton v Smith

103

(3)

3.6 The Death of Impossibility?

106

(8)

The Model Penal Code

106

(2)

The Criminal Attempts Act 1981

108

(2)

After the Act

110

(2)

A Possible Distinction?

112

(2)

3.7 Drawing Some Threads Together

114

(2)

4 Punishing Attempts

116

(12)

4.1 `Resulting Harm' in the Criminal Law

116

(3)

Sentencing Attempts

116

(1)

Other Legal Implications of `Resulting Harm'

117

(2)

4.2 Varieties of Failure

119

(3)

Complete and Incomplete Attempts

119

(1)

Complete Attempts: Incompetence and Luck

120

(2)

4.3 Consequentialism and Complete Attempts

122

(2)

4.4 Retributivism and Complete Attempts

124

(4)

5 Why Have a Law of Attempts?

128

(19)

5.1 Substaintive and Inchoate Offences

128

(5)

Varieties of Inchoate Offences

129

(2)

Primary and Secondary Harms

131

(2)

5.2 Why Inchoate Offences?

133

(4)

The Justification of Inchoate Offences

133

(1)

Offences of Implicit Endangerment

134

(1)

Offences of intention and Explict Endangerment

135

(2)

5.3 Why a Law of Attempts?

137

(4)

A Broader Law of Inchoate Crime?

138

(2)

Justifying a Law of `Attempts'

140

(1)

5.4 Why a General Law of Attempts?

141

(4)

II `SUBJECTIVISM' AND `OBJECTIVISM'

145

(92)

6 Subjectivism I: Culpability and Choice

147

(26)

6.1 Choice, intention, and Belief

147

(4)

Choice, Control, and Chance

147

(1)

Exculpation and Inculpation

148

(2)

Can `Choice' be Sufficient for Liability?

150

(1)

6.2 The Punishment and Labelling of Attempts

151

(3)

Complete Attempts

151

(1)

Incomplete Attempts

152

(1)

Distinguishing Complete Attempts from Completed Crimes

153

(1)

6.3 `Impossible Attempts'

154

(11)

non-Exculpatory Impossibilities

155

(1)

`Legal Impossibility' and Mistake of Law

156

(4)

Distinguishing `Mistake of Law' from `Mistake of Fact'

160

(2)

Subjectivists' Qualms about `Impossibility'

162

(3)

6.4 The Conduct Element in Attempts

165

(4)

The Significance of Conduct

165

(2)

What Kind of Conduct?

167

(2)

6.5 The Fault Element in Attempts

169

(4)

Modest Subjectivism

169

(2)

Radical Subjectivism

171

(2)

7 Subjectivism II: Character and Action

173

(20)

7.1 From `Choice' to `Character'

173

(3)

Duress as an Excuse

174

(1)

From `Choice' to `Character'

175

(1)

7.2 Character and Criminal Liability

176

(4)

Character Traits

177

(1)

Identifying Criminal Character Traits

178

(2)

7.3 Character and Criminal Attempts

180

(3)

The Punishment of Attempts

180

(1)

The Fault Element in Attempts

181

(1)

`Impossible Attempts'

182

(1)

7.4 Character, Action, and Liability

183

(10)

Justifying the `Act Requirement'

184

(2)

How Can One Criminal Action be Sufficient?

186

(2)

Criminal Action as Constitutive of Criminal Character

188

(2)

`Choice' v. `Character': a False Dichotomy?

190

(3)

8 Objectivist Themes and Variations

193

(46)

8.1 Two Types of `Objectivity'

194

(2)

8.2 Two Types of `Objectivism'

196

(6)

`Intrinsic and `Extrinsic' Objectivisms

196

(1)

Fletcher's `Objectivism': Intrinsic or Extrinsic?

197

(3)

Grounding an Intrinsic Objectivism

200

(2)

8.3 The Objectivist's Tasks

202

(4)

Objectivism and the Concepts of Action and Attempt

202

(2)

Objectivism and `Resulting Harm'

204

(2)

8.4 `Impossible Attempts' I: `Doing All She Intends'

206

(13)

Ms Ryan's Intentions

207

(3)

Roger Smith's Intentions

210

(1)

Non-Criminal Intentions

211

(2)

Criminal Intentions

213

(1)

Complex Intentions

216

(2)

Is the Test Plausible?

218

(1)

8.5 `Impossible Attempts' II: Attempts and Attacks

219

(14)

Attempts as Attacks?

221

(1)

What Counts as an Attack?

222

(5)

Identifying Attacks

227

(1)

Apparent Possibilities and Missing Victims

228

(2)

Extending the Account

230

(2)

The Limited Implications of the Account

232

(1)

8.6 Three Objections, and the Way Ahead

233

(4)

III ACTION, CHANCE, AND CULPABILITY

237

(164)

9 Action, Basic Action, and the `Act Requirement'

239

(25)

9.1 `What is Action?

239

(7)

Acts and the `Act Requirement' in the Criminal Law

240

(2)

Is There a Unitary Concept of Act(ion)?

242

(1)

An `Act Requirement' or a `Control Requirement'?

243

(2)

A Definition of Action?

245

(1)

9.2 `Basic Actions' as Bodily Movements

246

(8)

`Basic Actions' and Bodily Movements

247

(3)

`Basic Actions' and the `Act Requirement'

250

(4)

9.3 Action Without Bodily Movement

254

(2)

9.4 What Counts as `Basic'? The Problem of Critera

256

(4)

Two Criteria of `Basicness'

257

(1)

The Failure of the Intentional Criterion

258

(1)

The Failure of the Causal Criterion

259

(1)

9.5 The `Result-Problem' and the Fallibility of Action

260

(4)

10 Acting, Willing, and Trying

264

(29)

10.1 From `Basic Actions' to `Volitions'

264

(4)

Prichard's Volitions

265

(1)

Volitionist Variations

266

(2)

10.2 `How Many Volitions Did You Make Today?'

268

(4)

Hypothetical and Categorical Criteria; Act or Activity

269

(1)

A Functionalist Account of Volition?

270

(2)

10.3 Causal and Logical Connections

272

(6)

The `Independent Identifiability' Objection

273

(2)

Volition as Practical Thought

275

(2)

A Materialist Account of Volitions?

277

(1)

10.4 Acting and Trying

278

(7)

`All Action Involves Trying'

279

(1)

`Trying' and Ordinary Language

280

(3)

`Action Consists in Trying'

283

(1)

Trying and the Criminal Law

284

(1)

10.5 Against the `Trying' Doctrine

285

(8)

Trying to Move One's Body

286

(1)

The Logical Priority of Doing over Trying

287

(2)

Understanding Trying

289

(1)

The Vulnerability of Actions

290

(3)

11 Action, Intention, and Responsibility

293

(34)

11.1 Against Reductivist Definition

293

(4)

Action and Meaning

295

(2)

11.2 Action, Intention, and Meaning

297

(10)

Intentions and Reasons

297

(2)

Success and Failure

299

(1)

Action and Meaning

300

(1)

Non-Intended Agency

301

(2)

Unintentional Agency

303

(2)

Defining Action?

305

(2)

11.3 `Voluntary' and `Involuntary' Conduct

307

(3)

Natural Capacities

307

(3)

11.4 Actions, `Voluntary Acts', and Criminal Liability

310

(14)

The `Act Requirement' and the `Action Principle'

311

(1)

Requiring `Act(ion)' or `Control'?

312

(1)

Thought and Action

313

(4)

Acts and Omissions

317

(3)

Prospective and Retrospective Responsibilities

320

(2)

The `Act Requirement' and the `Action Principle' Again

322

(2)

11.5 Subjectivism and Objectivism Revisited

324

(3)

12 Chance, Control, and Culpability

327

(21)

12.1 Control and Luck

328

(6)

What Do We Control?

330

(1)

`Absolute' Control?

331

(2)

A Revised Subjectivist Argument

333

(1)

12.2 Culpability and Harm

334

(8)

The `Moral Equivalence' Thesis

334

(1)

Responses to Wrongdoing

335

(3)

Blame, Culpability, and `Resulting Harm'

338

(4)

12.3 Culpability and Luck

342

(6)

Blame and Moral `Discredit'

343

(3)

From Subjectivism Towards Objectivism

346

(2)

13 Towards an Objectivist Law of Attempts

348

(53)

13.1 The Objectivist's Tasks

348

(2)

13.2 The Punishment and Labelling of Inchoate Offences

350

(12)

Complete Attempts

351

(3)

Defining Offences `In the Inchoate Mode'

354

(4)

Incomplete Attempts

358

(1)

Negligence, Recklessness, and `Resulting Harm'

359

(3)

13.3 The Fault Element in Attempts: Why a Law of Attempts?

362

(16)

Attacks and Endangerments

363

(3)

Different Conceptions of `Primary Harm'

366

(3)

`Oblique' Intention

369

(2)

Recklessness in Attacks

371

(3)

Extending the Law of Attempts

374

(4)

13.4 Impossibility and Attempts

378

(7)

`Doing All She Intends'

378

(2)

Apparent Possibilities and Missing Victims

380

(3)

A Practicable Test?

383

(2)

13.5 The Conduct Element in Attempts

385

(12)

A General Law of Attempts?

385

(1)

Against a Broad Law of Attempts

386

(3)

`In the Process of Committing' the Offence

389

(4)

A Practicable Test?

393

(2)

Voluntary Abandonment

395

(2)

13.6 In Conclusion

397

(4)

Bibliography

401

(12)

Index

413

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Criminal Attempts

Summary

Table of Contents

Supplemental Materials