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Making up for the missing element — a sideways look at attempts

Published online by Cambridge University Press:  02 January 2018

John E. Stannard*
Affiliation:
The Queen's University, Belfast

Extract

Why does the mens rea of attempt require intention even though some lesser state of mind will suffice for the completed offence? What is the meaning of ‘intention’ in this context? Is intention required for all elements of the crime attempted or only for some? Can one draw a distinction between circumstances and consequences in this connection? Can crimes of negligence or of strict liability be attempted? Why do ‘impossiblc’ attempts cause such difficulty? Is there any meaningful distinction to be drawn between Anderton v Ryan and Shivpuri, or was Shivpuri the last word on the matter? It would be presumptuous to suggest that this article was the answer to all these questions: nevertheless it is suggested that light can be thrown on them by standing back and looking at the nature of a criminal attempt. The key to these and other puzzles, it is suggested, can be found in two concepts, the analysis of attempt as a crime with a missing element, and the notion ofintention as distinct from knowledge or foresight of consequences as stressed in Moloney and more recently by the House of Lords in Hancock and Shankland.

Information

Type
Research Article
Copyright
Copyright © Society of Legal Scholars 1987

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