Consultation Paper on Inchoate Offences - Law Reform Commission

either label could be applied to a case of impossibility depending on whichway it is looked at. 174 Consider the famous case of Haughton v Smith. 175The defendant received what he believed was “stolen” corned beef. But thecorned beef was actually under the control of the police. The police hadsearched the van transporting the corned beef and then allowed the van tocontinue its journey under covert police supervision. So Haughton isdescribed as a case of factual impossibility – the defendant could not havecommitted the substantive offence of receiving/handling stolen goods in thecircumstances because the goods he received were not in fact stolen. But thestate of being “stolen” is a construct of the law. Nothing intrinsic to thecorned beef changed when the police discovered it; yet in the view of thelaw the corned beef changed from being “stolen” to “not stolen”.Additionally, it is a matter of law that the goods in question must be “stolen”for the purpose of establishing the offence of handling stolen goods. It iseasy to imagine a different legal regime where stolen goods are consideredstolen until returned to their true owner. With these rather obvious anduncontroversial observations in mind one could comfortably describeHaughton as a case of legal impossibility: it was impossible for thedefendant to commit the substantive offence of handling stolen goods in thecircumstances because the law is such that receiving or handling goods thatare under control of the police does not constitute the offence.2.130 Instead of “factual” and “legal”, more elucidating phrases can beused when categorising impossible attempts. So what it often called a caseof legal impossibility can be called a case of an “imaginary crime”. This iswhere a person attempts to do, or in fact does, something which they think iscriminal, but is actually not criminal. R v Taafe 176 is an example. Thedefendant brought sealed packages into England believing them to containcurrency and believing that importing currency was a crime. As a matter oflaw, importing currency is not, and was not, a crime. The English Court ofAppeal held that no criminal attempt was made out because one cannotcriminally attempt to do what is not criminal; where an imaginary crime isattempted the definition of a criminal attempt will not be satisfied. Theimaginary crime case is best viewed not as a case of impossibility at all, butrather simply as a case where the definition of attempt – which requires thetarget of an attempt to be criminal – is not made out.2.131 The “factual” impossibility label is applied to the situation wherethe accused attempts to do something, which is indeed a crime, but because174175176The argument here is influenced by HLA Hart, “The House of Lords on Attemptingthe Impossible” in Hart Essays in Jurisprudence and Philosophy (Clarendon, Oxford,1983) at 367-391.[1975] AC 476.[1983] 1 WLR 627.62