Factual and Legal Impossibility (OCR A-Level Law): Revision Notes
Factual and legal impossibility
Introduction to attempting the impossible
The Criminal Attempts Act 1981 introduced a significant change to the law on attempted crimes by creating the offence of attempting the impossible. However, the Act drew a crucial distinction between two types of impossibility:
- Factual impossibility – which is treated as a criminal offence
- Legal impossibility – which is not a criminal offence
Understanding this distinction is essential for determining whether a defendant can be convicted of an attempted crime when the full offence could not actually be completed.
The key to understanding attempts of the impossible lies in recognizing whether the impossibility stems from the factual circumstances (allowing conviction) or from the non-existence of an offence in law (preventing conviction). This distinction is fundamental to correctly applying the Criminal Attempts Act 1981.
Factual impossibility
Definition and principle
Factual impossibility arises when the commission of the substantive crime was impossible based on the actual facts, even though the defendant believed it was possible to commit the offence. In such cases, the defendant can still be convicted of an attempted crime.
The key principle is that a possible offence exists in law, but the defendant is prevented from actually completing it due to the factual circumstances. The defendant's belief that the crime was possible is what makes them criminally liable for the attempt.
Think of factual impossibility as the defendant having the right criminal intent and taking steps toward committing a recognized offence, but being thwarted by circumstances beyond their knowledge or control. The law focuses on what the defendant intended and believed, not on whether completion was actually possible.
Application in practice
To understand factual impossibility, consider these scenarios:
Worked Example 1: The Closed Shop
James intends to shoplift alcohol from his local supermarket. When he arrives at the store, he discovers it is closed due to staff sickness.
Analysis: Although James cannot complete the theft, he can still be liable for attempted theft because the factual circumstances (the closed shop) made completion impossible, not the law itself. The offence of theft exists in law, but the facts prevented completion.
Worked Example 2: The Already Dead Victim
Martin, a gang member, goes to another gang member's house intending to kill him. He finds Ian in bed and stabs him ten times. Unknown to Martin, Ian had actually died in his sleep several hours earlier.
Analysis: Martin cannot be guilty of murder because Ian was already dead, but he can be convicted of attempted murder because the facts made completion impossible. Martin had the full mens rea for murder and took direct steps toward committing it – the impossibility was purely factual.
In both examples, the offence the defendants intended to commit (theft, murder) exists in law, but the particular circumstances prevented completion.
Key case: R v Shivpuri (1986)
Facts: The defendant was a drugs courier who was arrested carrying a package he believed contained heroin. Testing revealed the substance was actually a harmless vegetable-based material.
Offence attempted: Knowingly being concerned in dealing with a controlled drug
Ratio decidendi: The House of Lords overruled the earlier decision in Anderton v Ryan and convicted the defendant of attempting the impossible. This case established that factual impossibility does not prevent a conviction for attempt, provided the defendant had the necessary mens rea.
This landmark decision confirmed that the 1981 Act should be applied as Parliament intended, allowing convictions even when the facts made completion of the offence impossible.
R v Shivpuri is the leading authority on factual impossibility and represents the correct interpretation of the Criminal Attempts Act 1981. It firmly establishes that a defendant who intends to commit a crime and believes they are doing so can be convicted of attempt, even if unknown facts make completion impossible.
Legal impossibility
Definition and principle
Legal impossibility occurs when the defendant believes they are committing a criminal offence, but no such offence actually exists in law. In these situations, the defendant cannot be convicted of any offence because what they are attempting to do is not prohibited by criminal law.
The crucial distinction is that the defendant thinks their actions constitute a crime, but the law does not recognize their conduct as criminal at all.
Legal impossibility is based on the fundamental principle that there can be no crime without law (nullum crimen sine lege). No matter how much a defendant believes they are breaking the law, if their conduct is not actually prohibited, they cannot be convicted of attempting to do something that is not a crime.
Application in practice
Consider these examples of legal impossibility:
Worked Example 1: The Mistaken Belief About Sunday Trading
Jade works in a corner shop and mistakenly believes that selling face masks on a Sunday is a criminal offence. She sells a pack of facemasks to Andrew on a Sunday.
Analysis: Since selling face masks on Sundays is not an offence, Jade cannot be convicted of any crime, despite her belief that she was breaking the law. There is no criminal offence in law for her to attempt.
Worked Example 2: The Roadside Flower Seller
Jordan sells flowers from the roadside to passing motorists at traffic lights. He believes this activity is illegal, but selling flowers in this manner is not actually a criminal offence.
Analysis: Jordan cannot be convicted because the law does not prohibit his conduct. His mistaken belief about the law cannot create criminal liability where none exists in law.
In both cases, the defendants' mistaken beliefs about the law cannot create criminal liability where none exists. The principle is that you cannot attempt to commit an offence that does not exist in law.
Contrast with factual impossibility
The Key Distinction:
- Factual impossibility: The offence exists in law, but circumstances prevent completion → conviction possible
- Legal impossibility: No offence exists in law at all → no conviction possible
This distinction determines whether the Criminal Attempts Act 1981 applies. If the defendant is attempting something that would be a crime if the facts were as they believed, that's factual impossibility (conviction possible). If the defendant is attempting something that isn't a crime regardless of the facts, that's legal impossibility (no conviction).
Evolution of the law on attempting the impossible
The development of the law on attempting the impossible demonstrates how judicial interpretation can shape statutory provisions.
Anderton v Ryan (1985)
Facts: The defendant admitted to police that she had purchased a video recorder which she believed was stolen property.
Offence attempted: Handling stolen goods
Ratio decidendi: The House of Lords quashed her conviction, effectively ignoring the Criminal Attempts Act 1981. The court held that the defendant could not be convicted for something she believed to be true but which turned out to be incorrect.
This decision was widely criticised as it undermined Parliament's intention in passing the 1981 Act.
Anderton v Ryan represented a judicial reluctance to convict defendants for attempting crimes that could never be completed. However, this approach contradicted the clear statutory language of the 1981 Act and created significant uncertainty in the law. The decision stood for barely a year before being overruled.
R v Shivpuri (1986) – overruling Anderton
As discussed above, this case corrected the error in Anderton v Ryan and properly applied the 1981 Act. The House of Lords acknowledged that Anderton had been wrongly decided and confirmed that factual impossibility does not prevent conviction for attempt.
The Lords used the rare Practice Statement (1966) power to depart from their own previous decision, demonstrating the significance of correcting this error in the law.
Modern application: R v Jones (2007)
Facts: The defendant attempted to solicit young girls for sexual activity, including a person he believed to be a 12-year-old girl named 'Amy'. In reality, 'Amy' was an undercover policewoman.
Offence attempted: Inciting a child under 13 to engage in sexual activity
Ratio decidendi: Even though 'Amy' was not a real 12-year-old child, the defendant was convicted of attempting the impossible. The court applied the principle from Shivpuri, confirming that the defendant's belief was sufficient for conviction.
R v Jones demonstrates the continued application of the Shivpuri principle in modern criminal law, particularly in cases involving child protection. The case shows that undercover operations do not create legal impossibility – if the defendant believes they are committing an offence that exists in law, factual impossibility does not prevent conviction.
Mens rea requirements for attempts
The mental element required for attempt convictions has been clarified through case law, though some tensions remain.
Intent for all elements: R v Pace and Rogers (2014)
Facts: The first and second defendants purchased scrap metal which they suspected might be stolen. The metal was not actually stolen but had been sold to them by police as part of a test purchase operation.
Offence attempted: Conversion of criminal property
Ratio decidendi: The Court of Appeal held that the defendant must have an intent to commit all the elements of the offence, not just some of them. Mere suspicion was insufficient for the mens rea of attempt. This case distinguished R v Khan and clarified that conditional intent or suspicion is not enough.
Pace and Rogers establishes a strict standard: the defendant must intend every element of the full offence. This means that for offences where recklessness or suspicion suffices for the complete crime, those lower mental states are insufficient for attempt – only intention will do.
Sufficient intent despite incomplete mens rea: R v Khan (1990)
Facts: The defendant was convicted of attempted rape after being unsuccessful in trying to have sexual intercourse with the victim.
Offence attempted: Rape
Ratio decidendi: The Court of Appeal upheld the conviction, despite the trial judge's direction that the prosecution only needed to prove an intent to have sex knowing the victim was not consenting or being reckless as to consent. This decision has been controversial because it appears to allow conviction for attempt with a lower mens rea standard than required for the full offence.
The contrast between Khan and Pace and Rogers highlights the complexity of determining the required mens rea for attempted crimes. While Pace and Rogers suggests intention is required for all elements, Khan appears to permit recklessness for at least some elements in certain circumstances. This tension remains unresolved in the case law.
Exam guidance
When tackling scenario questions involving attempts, you should follow a systematic approach:
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Identify the impossible element: Determine whether the impossibility relates to the facts or the law
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Apply the correct principle:
- If factual impossibility, the defendant can be convicted (apply Shivpuri)
- If legal impossibility, no conviction is possible
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Consider the mens rea: Ensure the defendant had the intention to commit all elements of the offence (apply Pace and Rogers)
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Use case authority: Support your answer with relevant case law, particularly Shivpuri for factual impossibility
Attempted crimes in scenarios often involve factually impossible situations as part of a larger fact pattern. Be prepared to identify and analyse these situations systematically. Look for clues such as undercover operations, substances that turn out to be harmless, victims who are already dead, or property that isn't actually stolen.
Summary
Key Points to Remember:
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The Criminal Attempts Act 1981 distinguishes between factual impossibility (a crime) and legal impossibility (not a crime)
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Factual impossibility means the defendant can be convicted when circumstances make completion impossible, but a crime exists in law – established in R v Shivpuri (1986)
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Legal impossibility means no conviction because the defendant's conduct is not actually criminal, even if they believe it is
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The defendant must intend to commit all elements of the offence, not just some – R v Pace and Rogers (2014)
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Shivpuri overruled Anderton v Ryan and confirmed that attempting the factually impossible is a criminal offence
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R v Jones (2007) demonstrates the modern application of Shivpuri, particularly in child protection cases involving undercover operations