Week 6: preparation and attempt
Hart, pp. 127-131 (Reader, Week 4)
A bare intention to commit a crime is not punishable by English law.
Reasons for this: difficult to prove the intention to commit a crime that did not happened +
proving this would create an infringement with the right to privacy and the right to liberty
But the English law does punish an attempt to commit a crime. This is the doing of something quite
harmless in itself, but it is done with the further intention of committing a crime and if the
relationship between the act done and the crime is sufficiently proximate or close. Eg. Would-be thief
puts his hand into a pocket but it’s empty; writer writes letter to obtain money by false pretences but
fails to deceive his intended victim; a would-be murdered who puts poison into the cup which is
emptied before the intended victim can drink out if it - they are all guilty of attempts to commit
crimes!
Attempts are punishable in most legal systems
Why are attempts punishable?
Retributive view: the criminal had gone so far as to do his best to execute a wicked intention,
and the difficulties of proof and so on are removed by his overt act
Deterrent view: there is no need to punish unsuccessful attempts because the crime did not
succeed and there is not to the law’s threat (thus attempt is unjustified in the general
deterrent view). Critique on that failed attempts ate not punishable: if it would be punishable
criminals won’t take the risk of ‘trying to commit’ – price would be too high (now they do as
they think: ‘oh if I fail it won’t be punishable either way’)
SIDE NOTE: General deterrent (= consisting of the threat of punishment to all who are tempted
to commit offences) is not the same as individual deterrent (consisting not merely of
the threat of punishment for future offences, but also of the application of
punishment to individuals who have not been deterred by the law’s threats and have
actually committed the offence)
THUS: Only the use of punishment as an individual deterrent in the case of unsuccessful attempt to
commit crimes, is justified (in practice: the punishment will be less severe).
Background of this idea: For the accused has manifested a dangerous disposition to do all he can to
commit a crime, and the experience of punishment may check him in the future, since it may cause
him to attach more weight to the law’s threats. From this point of view the punishment of a man
who has attempted but failed seems as well justified on deterrent ground as the punishment of a
man who has succeeded in committing a crime.
In most legal systems, there is a more severe punishment for the completed crime than for the
attempt of the crime, how is this justified?
, Arguments contra a different level of punishment:
Between successful and unsuccessful attempt: no difference in wickedness, but there is a
difference in skill – the wickedness of the person is the same so why punish differently?
Very often an unsuccessful attempt is merely the accidental failure to commit the crime
because somebody unexpectedly intervenes and frustrates the attempt
Deterrent view: ‘there is no reason for punishing the unsuccessful attempt less severely that
the completed crime’ – the individual who has tried but failed to carry out the planned crime
may need just as much punishment to keep him straight in the future as the successful
criminal (he may be as much disposed to repeat his crime).
Argument pro a different level of punishment:
Locus poententiae; there was time space where the person had time to think again and make
another decision (he can decide to desist) – but if there is no difference in punishment and
he is already involved in the crime he may not have a motive for desisting
There is a different level of gratification between the two; if the criminal act succeeded, the
completion of the crime may be a source of gratification. By punishing the criminal more
severely, he can be deprived of this gratification and satisfaction (which the unsuccessful
criminal never had)
There is a difference in the resentment (=wrok) felt by a victim actually injured is normally
much greater than that felt by the intended victim who has escaped harm because an
attempted crime has failed
The difference of punishment between those two in state practice rests on a retributive theory that
there is a perfectly legitimate ground to grade punishments according to the amount of harm
actually done, whether this was intended or not (‘if he has done the harm he has to pay for it, but if
he has not done it he should pay less’.
Fletcher, Basic Concepts, Chapter 10 (pp. 171-187)
An attempted offense in not the same a complete offense; the primary difference is
that the harm (eg the death/sexual penetration etc) is absent.
In Western legal systems; attempt is punishable, mere perpetration is not.
Rationale behind ‘why attempt is punishable?’: the drive in our society to protect the
public from harm
The search for the primary offense
Should the attempt be regarded as a basic offense?
Concept 1: Yes, punishment should be imposed on the basis of blameworthiness or
culpability. The only fair basis for culpability is the actions under someone’s control-
this includes basic actions of someone and does not include the consequences of
these actions that depend on intervening forces of nature. As attempt supposedly
within the control of the actor, so it should be considered a primary offense. They
should thus hold the view that caused harm is generally irrelevant to culpability.
Hart, pp. 127-131 (Reader, Week 4)
A bare intention to commit a crime is not punishable by English law.
Reasons for this: difficult to prove the intention to commit a crime that did not happened +
proving this would create an infringement with the right to privacy and the right to liberty
But the English law does punish an attempt to commit a crime. This is the doing of something quite
harmless in itself, but it is done with the further intention of committing a crime and if the
relationship between the act done and the crime is sufficiently proximate or close. Eg. Would-be thief
puts his hand into a pocket but it’s empty; writer writes letter to obtain money by false pretences but
fails to deceive his intended victim; a would-be murdered who puts poison into the cup which is
emptied before the intended victim can drink out if it - they are all guilty of attempts to commit
crimes!
Attempts are punishable in most legal systems
Why are attempts punishable?
Retributive view: the criminal had gone so far as to do his best to execute a wicked intention,
and the difficulties of proof and so on are removed by his overt act
Deterrent view: there is no need to punish unsuccessful attempts because the crime did not
succeed and there is not to the law’s threat (thus attempt is unjustified in the general
deterrent view). Critique on that failed attempts ate not punishable: if it would be punishable
criminals won’t take the risk of ‘trying to commit’ – price would be too high (now they do as
they think: ‘oh if I fail it won’t be punishable either way’)
SIDE NOTE: General deterrent (= consisting of the threat of punishment to all who are tempted
to commit offences) is not the same as individual deterrent (consisting not merely of
the threat of punishment for future offences, but also of the application of
punishment to individuals who have not been deterred by the law’s threats and have
actually committed the offence)
THUS: Only the use of punishment as an individual deterrent in the case of unsuccessful attempt to
commit crimes, is justified (in practice: the punishment will be less severe).
Background of this idea: For the accused has manifested a dangerous disposition to do all he can to
commit a crime, and the experience of punishment may check him in the future, since it may cause
him to attach more weight to the law’s threats. From this point of view the punishment of a man
who has attempted but failed seems as well justified on deterrent ground as the punishment of a
man who has succeeded in committing a crime.
In most legal systems, there is a more severe punishment for the completed crime than for the
attempt of the crime, how is this justified?
, Arguments contra a different level of punishment:
Between successful and unsuccessful attempt: no difference in wickedness, but there is a
difference in skill – the wickedness of the person is the same so why punish differently?
Very often an unsuccessful attempt is merely the accidental failure to commit the crime
because somebody unexpectedly intervenes and frustrates the attempt
Deterrent view: ‘there is no reason for punishing the unsuccessful attempt less severely that
the completed crime’ – the individual who has tried but failed to carry out the planned crime
may need just as much punishment to keep him straight in the future as the successful
criminal (he may be as much disposed to repeat his crime).
Argument pro a different level of punishment:
Locus poententiae; there was time space where the person had time to think again and make
another decision (he can decide to desist) – but if there is no difference in punishment and
he is already involved in the crime he may not have a motive for desisting
There is a different level of gratification between the two; if the criminal act succeeded, the
completion of the crime may be a source of gratification. By punishing the criminal more
severely, he can be deprived of this gratification and satisfaction (which the unsuccessful
criminal never had)
There is a difference in the resentment (=wrok) felt by a victim actually injured is normally
much greater than that felt by the intended victim who has escaped harm because an
attempted crime has failed
The difference of punishment between those two in state practice rests on a retributive theory that
there is a perfectly legitimate ground to grade punishments according to the amount of harm
actually done, whether this was intended or not (‘if he has done the harm he has to pay for it, but if
he has not done it he should pay less’.
Fletcher, Basic Concepts, Chapter 10 (pp. 171-187)
An attempted offense in not the same a complete offense; the primary difference is
that the harm (eg the death/sexual penetration etc) is absent.
In Western legal systems; attempt is punishable, mere perpetration is not.
Rationale behind ‘why attempt is punishable?’: the drive in our society to protect the
public from harm
The search for the primary offense
Should the attempt be regarded as a basic offense?
Concept 1: Yes, punishment should be imposed on the basis of blameworthiness or
culpability. The only fair basis for culpability is the actions under someone’s control-
this includes basic actions of someone and does not include the consequences of
these actions that depend on intervening forces of nature. As attempt supposedly
within the control of the actor, so it should be considered a primary offense. They
should thus hold the view that caused harm is generally irrelevant to culpability.
