Consultation Paper on Inchoate Offences - Law Reform Commission

more effective methods on realising voodoo doesn‟t work. 201 Such aberrantcases should not be allowed to distort and unduly complicate attemptliability.2.150 The Commission accordingly provisionally favours definingcriminal attempt such that it can label as criminal the person who pickpocketsan empty pocket, the person who receives non-stolen goodsbelieving them to be stolen, and the person who despite their best effortsbeyond mere preparation simply lacks the means to achieve their criminalpurpose. The only category of attempt traditionally included underdiscussion of impossible attempts for which the Commission provisionallyrecommends liability should not attach is the imaginary crime scenario. Butin this scenario the concept of impossibility does not do the work inrendering the action outside the scope of attempt liability. What renders itoutside the scope of attempt liability is the absence of an essential aspect of acriminal attempt: that the target of the attempt is an actual currently validspecial part offence.2.151 Though the position in Ireland on impossible attempts cannot bestated with certainty, most likely it is the same subjectivist approach that theCommission wishes to provisionally recommend. 202 Another way ofexpressing this position is to observe that impossibility is no defence.2.152 The Commission provisionally recommends that impossibilityshould not bar attempt liability.DAbandonment of an attempt(1) The relevance of abandonment to attempt liability2.153 Abandonment or withdrawal in the context of attempt liabilityrefers to where the actor wilfully discontinues his or her efforts to bringabout a crime, in other words, where an actor ceases a criminal attempt. Thecommon law approach is that abandonment has no relevance to the issue ofattempt liability – the attempt is either committed by the time of theabandonment or it is not. In R v Taylor 203 the jury acquitted the defendant onfacts that had him poised to drop a lighted match on a haystack. The appealcourt allowed this acquittal to stand on the understanding that the defendantwas acquitted for lack of mens rea – he did not really intend to light the hay,201202203Smith “Attempts, impossibility and the test of rational motivation” in Gower (ed)Auckland Law School Centenary Lectures (Auckland Legal Research Foundation1983) at 37 and 42.Based on Walsh J‟s obiter dictum in the Supreme Court decision in The People(Attorney General) v Sullivan [1964] IR 169.(1859) 1 F & F 511; 175 ER 831.69