Attempting an ‘Impossible’ Crime (AQA A-Level Law): Revision Notes
Attempting an 'Impossible' Crime
Introduction to attempting the impossible
The Criminal Attempts Act 1981 introduced an important development in the law of criminal attempts. This Act created a new offence of attempting the impossible, but it made a crucial distinction between two types of impossibility. Understanding this distinction is essential for exam success, as impossible attempt scenarios frequently appear in problem questions.
The Act distinguished between:
- Factually impossible crimes (which can lead to conviction)
- Legally impossible crimes (which cannot lead to conviction)
Critical Distinction for Exams:
This distinction between factual and legal impossibility is one of the most frequently tested areas in criminal law. Problem questions will often present scenarios where you must identify which type of impossibility applies, as this determines whether a conviction for attempt is possible.
Factually impossible crimes
What is factual impossibility?
A crime is factually impossible when the commission of the full offence was impossible based on the actual facts, but the defendant believed it was possible to commit the crime.
In legal terms: if on the facts, the commission of the crime was impossible, although the defendant believed it to be possible, then they can still be convicted of an attempted crime.
Key Principle:
If the defendant has the necessary intent to commit the crime and takes steps that are more than merely preparatory, they can be convicted of attempt even though the full offence was factually impossible to complete.
Why can defendants be convicted for factually impossible attempts?
The law focuses on the defendant's guilty mind (mens rea) and their criminal conduct (actus reus). If a person intends to commit a crime and acts on that intention, they demonstrate criminal culpability even if circumstances unknown to them make completion impossible.
The Rationale Behind Liability:
The defendant's dangerous state of mind and willingness to commit crime justifies criminal liability. The law recognizes that someone who fully intends to commit a crime and takes concrete steps toward that goal poses a threat to society, regardless of whether external circumstances prevent completion. Their culpability stems from their criminal intent combined with their actions, not from the actual harm caused.
Legally impossible crimes
What is legal impossibility?
A crime is legally impossible when the defendant believes they are committing an offence, but they are actually not committing any offence under the law.
In legal terms: if the defendant believes they are committing an offence, but they are in fact not committing an offence, then they cannot be convicted of the offence they think they are committing.
Key Principle:
Where no crime exists in law, there can be no attempt. The law cannot punish someone for attempting to do something that is not actually criminal.
Example of legal impossibility
Illustrative Example: The Non-Existent Offence
If someone believes that a particular act is illegal when it is not (for example, believing it is illegal to wear red shoes on Tuesdays), they cannot be convicted of attempting that non-existent offence, even if they intended to break what they thought was the law.
Why no conviction?
- The act itself is not criminal
- No law prohibits the conduct
- Criminal law requires an actual offence to exist
- The defendant's mistaken belief does not create criminal liability
Key cases on attempting the impossible
Anderton v Ryan (1985)
Case Summary: Anderton v Ryan (1985)
Facts: The defendant admitted to police that she had bought a video recorder which she thought was stolen. However, the video recorder was not actually stolen.
Offence attempted: Handling stolen goods
Decision: The House of Lords quashed the conviction, essentially ignoring the 1981 Act. The court held that the defendant could not be convicted for something she believed to be true that turned out to be wrong.
Significance: This case was subsequently overruled and is no longer good law. It represents a brief period where the courts did not properly apply the Criminal Attempts Act 1981.
R v Shivpuri (1986)
Case Summary: R v Shivpuri (1986) ⭐ Leading Case
Facts: The defendant, who was working as a drugs courier, was arrested in possession of what he believed was heroin. In reality, the substance was a harmless vegetable-type material.
Offence attempted: Knowingly being concerned in dealing with a controlled drug
Decision: The House of Lords overruled Anderton v Ryan and convicted Shivpuri of attempting the impossible. The court properly applied the Criminal Attempts Act 1981.
Significance: This is the leading case establishing that factually impossible attempts are criminal. The defendant genuinely believed he was dealing with heroin and acted with full criminal intent. The fact that the substance turned out to be harmless did not prevent his conviction for attempt.
Legal Principle: Where a defendant has the necessary mens rea (intent) for the full offence and does an act that is more than merely preparatory, they can be convicted of attempt even if the crime was factually impossible to complete.
R v Jones (2007)
Case Summary: R v Jones (2007)
Facts: The defendant attempted to solicit young girls for sexual activity online. He communicated with someone he believed was a 12-year-old girl named 'Amy'. In reality, 'Amy' was an undercover female police officer.
Offence attempted: Inciting a child under 13 to engage in sexual activity
Decision: Despite the fact that 'Amy' was not a real 12-year-old girl, the defendant was convicted of attempting the impossible.
Significance: This case demonstrates the modern application of the Shivpuri principle. The defendant's belief that he was communicating with a child, combined with his intent to commit a sexual offence and his actions in furtherance of that intent, were sufficient for conviction. The impossibility of the offence (because no real child existed) did not prevent liability.
The evolution of the law
The case law shows a clear development in how courts have interpreted and applied the Criminal Attempts Act 1981:
- Anderton v Ryan (1985) - The House of Lords initially took a restrictive approach, refusing to convict for impossible attempts despite the 1981 Act
- R v Shivpuri (1986) - The House of Lords reversed its position within one year, properly applying the 1981 Act to convict for factually impossible attempts
- R v Jones (2007) - Modern courts continue to apply the Shivpuri principle, particularly in cases involving undercover police operations
Understanding the Legal Evolution:
This evolution demonstrates the courts' recognition that criminal liability should attach to dangerous conduct and criminal intent, regardless of whether completion was factually possible. The rapid reversal from Anderton to Shivpuri (within just one year) shows how quickly the judiciary recognized the need to properly implement the 1981 Act's intention to criminalize factually impossible attempts.
Exam guidance and application
Understanding the distinction
Factually impossible (conviction possible):
- The defendant intends to commit a crime
- The defendant believes the facts make commission possible
- In reality, unknown facts make commission impossible
- Example: Believing you are stealing from a pocket that is actually empty
Legally impossible (no conviction):
- The defendant intends to do something they believe is criminal
- What they intend to do is not actually a crime at all
- Example: Believing it is illegal to import French cheese when it is not
Applying the law in problem questions
When tackling exam scenarios involving impossible attempts, follow this systematic approach:
Step-by-Step Analysis for Problem Questions:
- Identify what the defendant believed - What did they think they were doing?
- Identify the actual facts - What was the true situation?
- Determine the type of impossibility - Is this factual or legal impossibility?
- Apply the relevant test:
- For factual impossibility: Can you prove the defendant had the mens rea for the full offence and did an act more than merely preparatory?
- For legal impossibility: Is what the defendant intended to do actually a crime?
- Consider the defendant's state of mind - Did they have full intent to commit all elements of the offence?
Common exam scenarios
Impossible attempt scenarios commonly appear in larger problem questions and may involve:
- Undercover police officers posing as victims (like Jones)
- Property that the defendant believes is stolen but is not (like Anderton and Shivpuri)
- Attempting to harm someone who is already dead
- Attempting to steal from empty pockets or containers
- Pickpocketing empty pockets
- Drugs that turn out to be harmless substances
Spotting Impossible Attempts in Exams:
Look for scenarios where there's a mismatch between what the defendant believes and reality. Key indicators include:
- Phrases like "believed to be", "thought it was", "turned out to be"
- Undercover operations or sting operations
- Situations where the victim or object doesn't exist or has a different character than believed
- Substances that are not what the defendant thinks they are
Exam technique tips
When answering questions on impossible attempts:
For problem questions:
- Clearly identify whether the scenario involves factual or legal impossibility
- State the relevant law from the Criminal Attempts Act 1981
- Apply Shivpuri as the leading authority
- Explain why the defendant can or cannot be convicted
- Consider both actus reus (more than merely preparatory) and mens rea (intent to commit the full offence)
For essay questions:
- Discuss the policy reasons behind criminalising factually impossible attempts
- Evaluate the evolution from Anderton to Shivpuri
- Consider whether the law strikes the right balance between protecting society and avoiding punishing thought crimes
- Discuss modern applications in cases like Jones involving internet crimes
Common Mistakes to Avoid:
- Don't confuse the types of impossibility - factual vs legal is the critical distinction
- Don't forget to apply Shivpuri when discussing factual impossibility - it's the leading case
- Don't overlook the need to prove both mens rea and actus reus for a conviction
- Don't cite Anderton v Ryan as good law - it was overruled by Shivpuri
Remember!
Key Points to Remember:
-
The Criminal Attempts Act 1981 created the offence of attempting the impossible, distinguishing between factual impossibility (which is an offence) and legal impossibility (which is not an offence)
-
Factual impossibility: Where commission of the crime was impossible on the actual facts, but the defendant believed it was possible, they can still be convicted of attempt if they had the necessary intent and did acts more than merely preparatory
-
R v Shivpuri (1986) is the leading case - it overruled Anderton v Ryan and established that defendants can be convicted for factually impossible attempts when they have the full mens rea and have gone beyond mere preparation
-
Modern application: Cases like R v Jones (2007) show the principle applies to contemporary situations, particularly undercover police operations where the 'victim' does not actually exist
-
Exam strategy: Impossible attempt scenarios frequently appear in problem questions - always identify whether the impossibility is factual or legal, and apply Shivpuri when discussing factual impossibility