Attempts in English Criminal Law

Abstract

There has been no lack of attention paid to the intractable problems surrounding the law of attempt. Interest in them has been revived in England by the publication of the Law Commission's Working Paper on Inchoate Offences' and by the decision of the House of Lords in R. v. Smith. As these are difficulties common to all common law jurisdictions, Canadian lawyers may be interested to learn of these recent developments. It is proposed to concentrate here on two main issues: first, what conduct constitutes an attempt and secondly, the question of impossibility. Both are discussed in the working paper; Smith deals only with impossibility. Before considering these, however, it may be useful for Canadian lawyers to have some information as to the nature of the Law Commission and the way it operates. The Commission, a full-time statutory body created in 1965 to keep English law under continuous review, is similar to the Law Reform Commission of Canada. It is examining, inter alia, the general principles of the criminal law with a view to their codification. To this end it has set up a working party consisting of Law Commissioners, members of the Criminal Law Revision Committee, representatives of the Home Office and practising lawyers to prepare working papers 6. These papers are widely circulated for comment and criticism. They do not represent the Commission's final view, nor do they necessarily have its approval. Reactions to each paper are considered and the Commission itself prepares a formal report embodying its own recommendations, including a draft bill, which is presented to the Lord Chancellor, laid before Parliament and published.