LEGAL METHODS PROJECT

YEAR 1, TRIMESTER 1

IMPOSSIBILITY OF ATTEMPTS:
RECONSIDERATION AS A
DETERRENT AGAINST CULPABILITY

SUBMITTED BY: HANNAN KHALOL

LLB/3015/22
SUBMITTED ON 6 SEPTEMBER, 2022
Contents
RESEARCH METHODOLOGY...........................................................................................4

INTRODUCTION: ATTEMPTS AND IMPOSSIBILITY.......................................................5

HART’S INTENDED STEPS MODEL.....................................................................................7

IN DEFENCE : DOCTRINE OF LOCUS POENITENTIAE...................................................8

CONCLUSION........................................................................................................................10
 RESEARCH METHODOLOGY

This paper follows a variegated doctrinal and hypothetico-deductive research methodology.

The paper is primarily doctrinal, with elements of hypothetico-deductive analysis employed
to draw out conclusions and harmonise assumptions when required. The paper aims to
address doctrinal legal questions by analysing and contrasting the judgements in Haughton v
Smith1 and R v Shivpuri2 as well as several other statutes and cases . These shall constitute
primary sources. I shall also explore books, opinions, legal-philosophical doctrines ,
commentaries et al which shall constitute secondary sources.

In response to the given prompt, I shall argue in favour of the innocence of the hypothetical
NLS student . I shall do so by : first, defining , analysing and delineating the intrinsic and
extrinsic contours of ‘ impossible attempts’ to commit a crime; second, by investigating the
material differences between Haughton v Smith and R v Shivpuri with an emphasis on HLA
Hart’s ‘ Intended Steps Model’; and third, by invoking the doctrine of ‘ Locus poenitentiae’.
The paper shall propose a ‘ three – step deductive’ model as a response to possible
objections.

1
[1975] AC 476
2
[1987] AC 1
 INTRODUCTION: ATTEMPTS AND IMPOSSIBILITY

WHAT ARE ATTEMPTS?

The play ‘Ajax’ by Sophocles concerns the idea of ‘Thought Crimes’ more than anything
else. In the play’s opening scene, the goddess Athena describes how Ajax had sneaked up on
the commanders’ camp the night before, planning to torture and kill them. But Athena
intervened at the last second, clouding Ajax’s mind so that he would mistake the army’s
sheep for his human targets. Ajax’s death does little to calm his intended victims. Menelaus is
especially unforgiving, demanding that the Greeks leave Ajax’s body unburied. Menelaus
doesn’t care that Ajax’s conduct ultimately posed no threat. He cares only about Ajax’s
murderous intention, which he equates with murder itself. Is it “just,” asks Menelaus, “that
my murderer have a peaceful end? . . . By his will, I am dead.” Menelaus ’justification is not
extraordinary. In branding Ajax’s murderous intention, a serious wrong, Menelaus voices an
idea familiar from ordinary morality and the criminal law. When one pursues a malevolent
purpose through ineffective means, their evil mental state may attract stronger censure than
their in-itself-innocuous conduct. If one points a gun at someone and pulls the trigger, and the
gun turns out to be a fake, they will be blamed for their failed action, but will also be blamed
equally for the malevolent intention. In fact, one could probably be blamed more for the
intention than for the action—judging it more severely and censuring it more harshly. The
story and its subsequent justification in a nutshell, encapsulates the idea of ‘attempts’.

CRIMINAL ATTEMPTS AND CONTEMPORARY LAWS

A crime can be broadly divided into four stages. They are: (i) forming the intention to
commit the crime; (ii) the preparations for committing the offense; (iii) the attempt to commit
it, and (iv) if the third stage is successful, the commission of the intended crime. 3 Attempt to
commit a crime comes in the penultimate stage. The distinction between the second stage,
i.e., preparation, and the third stage, i.e., an attempt has been subject to a lot of judicial
3
ibid 22
interpretations in various cases.4 . Different jurisdictions employ various investigatory tests to
identify the defining interval between preparation and attempt. While punishment is generally
not punishable , attempts are, in most cases punishable . Section 511 of the Indian Penal
Code, 1860 makes attempt to commit a crime punishable in India. It is, however, silent on the
aspect of impossible attempts and has been left to the courts to decide under certain facts and
circumstances.

IMPOSSIBILITY

Impossibility, according to legal philosopher "H.L.A. Harts" (hence, Hart), is a "tool

modifying the implications of actus reus and mens rea." The object on which the accused acts
must have some specific legal characteristics, such as "being stolen" or "being the property of
another," defined by reference to legal rules, in order for his conduct to constitute the actus
reus of the offence, which the accused intends to commit. In the literature on criminal
attempts, these situations are frequently referred to as cases of "legal impossibility." The best
example of "legal impossibility" is the hypothetical scenario presented by Baron Bramwell in
1864 of a guy who attempted to steal an umbrella but grabbed his own because he thought it
belonged to someone else. This may also be referred to as ‘intrinsic impossibility’

In 1975 , the Divisional Court in Partington v Willliams held that a clerk who with the
intention of stealing from it took a wallet out of a drawer in the office of her employers and
opened it but found it empty , could not , on those facts , be convicted of an attempt to steal.
Cases of this sort where at relevant time, no object with the physical characteristics of the
kind of object upon which the accused, bent on committing a crime, intended to exist at the
place where the accused believed such an object was or might be, are described as cases of ‘
physical impossibility. This may also be referred to as ‘extrinsic impossibility’.

But one can question whether the idea of mens rea, a cornerstone of criminal law, wasn't also
undercut by the argument. I claim that the state could not interfere with a partially completed
mental state based only on if the state cannot treat it as a censurable offence on using such a
state of mind as a target for punishment. But typical inchoate offences may employ such an
understanding of mens rea. Hence, in many cases, it may appear to accomplish just that:

4
Narayandas Bhagwandas Madhavdas vs The State of West Bengal 1959 AIR 1118
penalising offenders fora movement's conjunction with its corresponding mental state.By
doing so, the executed or partially executed mental states of offenders are treated as objects
of punishment. This suggestion underpins Hart’s conception of ‘ Intended Steps Model ‘ for
Inchoate Offence shall explore while analysing Haughton vs Smith and R vs Shivpuri in the
subsequent sections.

HART’S INTENDED STEPS MODEL

In the case of Haughton v. Smith, the accused sought to commit an offence that was
impossible to carry out since the commodities in question were not truly stolen, even after the
accused took all the steps he had planned to take to carry out his intention. This case can be
attributed to legally impossible attempts because the defendant's mistaken belief was what
motivated the attempt. Harts proceeds to call it the ‘ interruption model’ which in his opinion
was ill -suited for cases in which mis-direction of the action was not involved. Understanding
the specific reasons why the Interruption Model is problematic in situations where there are
inadequate or improperly directed resources is crucial. It is not since having a small flaw or
trait that may be remedied by a broad definition of the concept of "interruption." Because of
these instances that don't match the model all lack its key component, as the House of Lords
has often emphasised, the fact that the accused's overt behaviour actually started the
circumstances in question are influenced by external factors.

Instead, he proposes the ‘ Intended Steps’ Model, more relevant to R vs Shivpuri, wherein the
accused carried the action up till completion without realising that the commodities he was
commissioned to smuggle perfectly legal. While, a raw application of the ‘ Intended Steps’
model to the given prompt may hold evidence against the hypothetical NLS student, I argue
otherwise.
 IN DEFENCE : DOCTRINE OF LOCUS POENITENTIAE

The accused, a hypothetical NLS student, intending to cheat in the examination, plans

to carry cheats to the examination hall. Half an hour after the examination started, she goes to

the bathroom with the intention of using the cheats and takes them out. After opening the

cheats, she realizes that she has mistakenly brought blank and perfectly legal materials only

instead of the cheat sheets. At this juncture, an invigilator enters the bathroom and catches

her red-handed.

The laws central to this case are the examination rules which prohibit the use or

attempt to use, of any materials by the students which are not authorised by the University.

The issue in the case is if the hypothetical NLS student should be convicted for

the offense of attempting to commit cheating in the examination hall.

While , the material facts of the case are very similar to R vs Shivpuri, I argue against an
arbitrary application of the precedent here. It is essential to invoke the doctrine of ‘ locus
poenitentiae’ or the ‘ act of reconsideration’ at this juncture.

The doctrine of locus poenitentiae refers to the possibility that a person who has made
preparations to commit an offence ultimately decides against doing so due to a change of
heart or due to some other form of pressure or fear. Therefore, if a person voluntarily
abandons the thought of committing a crime before carrying it out, the conduct will only be
considered a preparation rather than an attempt. In other words, as long as the person's
actions leave room for a reasonable expectation that he would, either on his own account out
of a fear of potential repercussions or for any other reason, refrain from going farther for the
intended act, he will treated at the stage of preparation and criminal liability will not be
fastened on the accused. The interval between repentance and supposed commission of crime
is essential here. External interruption ceases repentance and is not vital to the development
of crime.

The Supreme Court applying this doctrine, in Malkit Singh v.

State of Punjab3’ ordered acquittal of truck driver and helper of a
 truck convicted by a lower court of attempting to smuggle paddy
out of Punjab. In this case the accused, driver and cleaner were
intercepted at Smalkha, barrier post in Punjab, which was 14
miles from the Punjab-Delhi border, driving a truck containing 75
bags of paddy. A letter written by the consigner in Punjab to the
consignee in Delhi was also recovered from the possession of the
driver. They were charged with the offence of attempting to
(smuggle) export paddy in violation of the Punjab Paddy (Export
Control) Order 1959. The Apex Court quashed the conviction of
the accused by holding that their acts were still at the stage of
preparation. It observed:

‘The test for determination whether the act of the appellants

constituted an attempt or preparation, is whether the overt
acts already done are such that if the offender changes his
mind, and does not proceed further in its progress, the act
already done would be completely harmless.’

Hypothetico-deductive model entailed here:

Assumptions: 1) The chits were folded

2) The girl went to the washroom to dispose of the chits after due
reconsideration
3) Reconsideration was effected much before the interruption by the invigilator

Deductions: Reconsideration absolves the girl of all guilt

Hence, the university rules concerning cheating don’t apply to her. No punishment accrues to
her, whatever be the quantum
 CONCLUSION
The paper examined attempts and impossibility in the light of Hart’s Intended Steps Model
which as the paper shows while being relevant to R vs Shivpuri does not fit well in the
hypothetical present here. The paper has aimed to absolve the hypothetical NLS girl of all
guilt by invoking the doctrine of ‘ reconsideration’ . The doctrine has been justified by
harmonising assumptions and deductions in the hypothetico-deductive model employed here
in conjunction with doctrinal legal principles.
BIBLIOGRAPHY

PRIMARY SOURCES:

Statutes

SECONDARY SOURCES:

Journals

Books

1.