Criminal Attempts

by Duff, R. A.

• ISBN13: 9780198262688
• ISBN10: 019826268X
• Format: Hardcover
• Copyright: 1997-03-27
• Publisher: Clarendon Press

Summary

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 Contents

Table of Abbreviations	xx	(1)
Table of Cases	xxi
I PROBLEMS IN THE LAW OF ATTEMPTS	1	(144)
1 The Fault Element in Attempts	5	(28)
1.1 An 'Intent to Commit an Offence': I	6	(4)
Content and Context	6	(1)
Attempted Manslaughter	7	(3)
1.2 Acts, Circumstances, and Consequences	10	(7)
Not Requiring Intention as to Circumstances	10	(2)
Distinguishing Acts, Circumstances, and Consequences	12	(2)
`Missing Elements'	14	(1)
`Alternative Intentions'	15	(2)
1.3 The Meaning of `Intention'	17	(5)
`Direct' and `Oblique' Intention	17	(4)
Intention as to Circumstances	21	(1)
1.4 An `Intent to Commit an Offence': II	22	(7)
Attempted Homicide	23	(2)
Circumstances and Consequences (Again)	25	(4)
1.5 Why Require Intention?	29	(4)
2 The Conduct Element in Attempts	33	(43)
2.1 The Search for a Test	33	(2)
Two Questons	34	(1)
2.2 `First' and `Last' Acts	35	(7)
`First Acts'	35	(2)
`Last Acts'	37	(5)
2.3 `Proximate' Acts	42	(6)
Stephen's Criterion	43	(1)
`Probale Desistance'	44	(2)
`Dangerous Proximity'	46	(2)
2.4 `Unequivocal'Acts	48	(5)
Salmond's `Uniquivocality' Test	49	(1)
Objections to the `Uniquivocality' Test	50	(3)
2.5 `Substantial Steps'	53	(4)
Broadening the Law of Attempts	53	(3)
Objections to the `Substantial Step' Test	56	(1)
2.6 `More than Merely Preparatory' Acts	57	(4)
`In the Process of Committing' an Offence	58	(2)
The Indenterminacy of the Test	60	(1)
2.7 Questions of Substance and of Method	61	(5)
The Jury's Role	61	(2)
Different Conceptions of Crimminal Attempts	63	(2)
The Role of Examples	65	(1)
2.8 `Voluntary Abandonment' as a Defence	66	(10)
The Relevance of Voluntary Abandonment	66	(2)
What Makes Abandonment `Voluntary'?	68	(1)
Does it Matter when an Attempt is Abandoned?	69	(1)
The Model Penal Code's Rationale for the Defence	70	(2)
Objections to the Defence	72	(4)
3 `Impossible Attempts'	76	(40)
3.1 Three Paradigm Examples	76	(4)
The Relative of Impossibilities	78	(2)
3.2 Apparent and Intrinsic Impossibilities	80	(5)
`Present' and `Apparent' Abilities	80	(3)
`Intrinsic' Impossibilities	83	(2)
3.3 Missing Victims and Missing Objects	85	(7)
Missing Victims	85	(1)
Missing Objects	86	(3)
Missing Objectcs, Apparent Abilities, and Attacks	89	(3)
3.4 `Legal Impossibility' I: Mistakes of Law, Legal Obstacles	92	(6)
Mistakes of Law	92	(4)
Legal Obstacles	96	(2)
3.5 `Legal Impossibility' II: `Doing All She Intended to Do'	98	(8)
(Mis)Identifying the Agent's `Intended Acts'	99	(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