Criminalizing Attempted Crimes

The criminal law is designed with a view to protecting the individual rights of the citizen and the health and well being of society as a cohesive unit. In this regard, it is responsible for setting the parameters of social conduct, and for ensuring consistent application of principle and doctrine across the board. One of the most controversial areas of the criminal law is undoubtedly its role in penalising criminal attempts. When one attempts criminal behaviour but does not complete it, should that person still be liable as a matter of public policy? What if a prospective criminal stops a second from shooting their victim, deciding not to follow through their criminal intent? Furthermore, should a criminal be penalised for trying to commit a crime that is factually impossible? In this article, we will consider each of these arguments and look at possible ways in which they could be more effective treated.

Criminal law usually concerns itself with punishing those who have committed wrongs against the person or against society, and this is generally very effective in ensuring a sense of lawful community and deterring the bulk of criminals in their actions. However, one of the most pertinent questions most legal systems face is when, if at all, to intervene in perfectly legal behaviour in aid to stop a crime from happening? Consider the example of a gunman looking to murder a close friend. He buys a firearm. Is he arrested at this point for attempted murder? He goes to a hill near his friend’s house with the gun. Here? He takes aim and begins to squeeze the trigger? How about now? It is very tough to interpret the most advantageous point to intervene in potentially criminal behaviour. On one hand there is the threat of encroaching on civil liberties, whilst on the other there is an obvious threat to life and life, as well as property. Drawing the line has been particularly hard in recent times, and has caused government draftsmen a number of headaches in interpreting what the law should be.

Consider next the scenario of the thief stealing from an empty pocket. Mentally and physically he has committed sufficient acts to be convicted of the crime, but simply because there was no wallet to be stolen, should he walk free? Because there was no wallet, he could never be convicted of theft, but should he be liable in attempt? The answer in most jurisdictions is yes, but again this presents further complications. Say for example, you have a would-be drug dealer who buys a quantity of paracetamol. He sells these in the mistaken belief they are illegal – he could never be convicted of supplying controlled drugs, but could he be convicted on the grounds of his attempts? Most jurisdictions again say yes, with the rationale that dangerous people should be stopped in their tracks. Although a fair point, this kind of argument does not sit well in a modern context, particularly where civil liberties and human rights play such a big role in law internationally.

Additionally, the concept of abandonment is somewhat of a mixed bag, with some countries swinging one way and others another. Should the accused be allowed to drop his gun at the last minute and decide not to kill on this occasion? Alternatively, is the fact that he considered and made steps towards perpetrating a serious crime sufficient to attract liability and attribute blame? Courts across the world are intensely divided over this issue, even internally, given its particular conundrum in context. What is certain is that the criminal law may feel obliged to intervene in certain circumstances to prevent harm to their citizen, which would surely be a significant consideration in mitigation for wrongful arrest.

The concept of the law of attempts is highly interesting, and of particular note is the specific treatment across the world of both abandonment and illegality. Perhaps in an era of greater harmonisation, we will see more international authority on the application of these principles.