Pragmatism and Theory in English Law - College of Social Sciences ...

Theory Beneath the Surface 181
problem has been around for a good many years. Indeed,
when I was a law student Professor Glanville Williams judged
a moot at my college in Oxford based on the famous Sherlock
Holmes story in which Professor Moriarty shoots at the
stuffed dummy which Holmes has left in his room. Professor
Williams was then already engaged in his campaign to rid the
law of the idiocy that Professor Moriarty could not be convicted
of attempting to murder Sherlock Holmes. His efforts
received a severe set back in the House of Lords decision in
Houghtonv, Smith 51 in 1973, when the House actually revived a
number of long overruled criminal law decisions and decided,
among other things, that if a pickpocket puts his hands into an
empty pocket he could not be guilty of attempting to steal. I
need not attempt to describe the allegedly "sound reasoning"
which led the House of Lords to revive these old cases,
because, as Professor Hart has observed, there is really
nothing in them which can be described as "reasoning" at all,
let alone "sound reasoning." 52
Nothing daunted Professor Glanville Williams (with the
support of many other distinguished academic criminal
lawyers) then persuaded the Law Commission to embark on
a study of criminal attempts, and powerfully influenced
their Report which recommended that this defence of
impossibility should be abolished, and which appended a
draft Bill to give effect to that proposal. 53 A Bill was speedily
introduced into Parliament to deal with the subject, but
51 [1975] A.C. 476.
52 "The House of Lords on Attempting the Impossible" (1981) 1 Ox.
J. Leg. St. 149, at p. 155.
53 Criminal Law: Attempt and Impossibility in Relation to Attempt, Conspiracy
and Incitement (1980) Law Com. No. 102. Professor Williams
was a member of the Working Party which had already considered proposals
for the reforming the law of attempts.