Scottish High Court of Justiciary Decisons

The cause called before the High Court of Justiciary, on 30 June 1995, when their Lordships remitted it to be heard by a quorum of five Lords Commissioners of Justiciary.

The cause thereafter called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), the Lord Justice-Clerk (Ross), Lord Sutherland, Lord Cameron of Lochbroom and Lord Johnston for a hearing on 16 November 1995. Eo die their Lordships made avizandum.

At advising, on 20 December 1995—

LORD JUSTICE-GENERAL (Hope)—This case was remitted to a court of five judges for the reasons which were set out in the court's opinion of 30 June 1995. The appellant's contention was that charge 1 was irrelevant because it was plain from the narrative of that charge that, as the tablets of which he took possession did not in fact contain a controlled drug, it was not possible for him by possessing them to have attempted to have a controlled drug in his possession with intention to supply it to another or others contrary to sec 5(3) of the Misuse of Drugs Act 1971. Section 19 of that Act, to which reference is made in the charge, provides that it is an offence for a person to attempt to commit an offence under any other provision of the Act. But it was submitted that, because the offence, which depended upon his being in possession of the controlled drug, could not have been committed by the appellant as the tablets which were in his possession did not in fact contain the controlled drug, he could not on those facts be guilty of an attempt to commit that offence.

Had it not been for the present state of the Scottish authorities on this matter, the point would, I think, have been relatively easy to resolve. The appellant's argument fails to appreciate the distinction between a completed crime and an attempt. For a completed crime there must be that state of mind which amounts to mens rea, and an act which constitutes a crime must have been committed. If the commission of that act is impossible, or for some other reason it is not achieved, no completed crime will have been committed. But that does not mean that nothing has happened which may be regarded as criminal. A person who has mens rea and acts in some way in order to bring about what he has intended may be guilty of an attempt to commit that crime. The reason why the attempt fails is not important. It makes no difference whether this was because the accused was acting under a mistake or was interrupted or desisted before the crime was completed. What matters is that the intention to commit the crime was brought forward to the stage of perpetration by the doing of some act to bring the intention into effect.

In the present case the appellant is said to have taken possession of tablets which he believed to contain the controlled drug with intention to supply it to another. His intention was, on this narrative, to commit the offence which is described in sec 5(3) of the Act. He carried that intention into effect by taking possession of the tablets. His intention failed because the tablets did not in fact contain the controlled drug. So he did not in fact commit the offence. But he can nevertheless be found guilty of attempting to commit it.

I do not think that the difference between a completed crime and an attempt has been adequately explored in the authorities. Hume's Commentaries on the Law of Scotland Respecting Crimes, (3rd edn) i, 27, puts the matter correctly when he says that, even when no harm ensues on the attempt, still the law rightly takes cognisance of it:

"if there has been an inchoate act of execution of the meditated deed; if the man hath done that act, or a part of that act, by which he meant and expected to perpetrate his crime, and which, if not providentially interrupted or defeated, would have done so".

But some confusion has arisen in the application of that principle to the situation where the facts were such that the meditated deed was impossible to commit. There is no difficulty about the decision in Lamont v Strathern, as the fact that there was nothing to steal in the other man's pocket did not prevent the accused being held to have been guilty of an attempt to steal. The problem is created by HM Advocate v Anderson, where Lord Anderson held a charge of attempted abortion to be irrelevant because it was not set forth in the charge that the woman was pregnant, and by the approval which was given to that decision in HM Advocate v Semple. The charge which was under consideration in Semple appears to have been framed in the light of Lord Sands' observation in Lamont at p 37; that it would be a relevant charge that the accused, in the belief that a woman was pregnant, penetrated her person with intent to cause her to abort. The charge in Semple was not libelled as an attempted abortion. But it was made clear in the opinions in that case that, had it been so libelled, it would have been irrelevant because the woman was not stated to be pregnant.

In my opinion Anderson was wrongly decided and the observations in Semple which supported that decision were erroneous. The fact that the woman was not pregnant would, of course, mean that it would not have been possible to commit the crime of abortion. But it was not necessary to state that she was pregnant for there to be a relevant charge of attempting to cause her to abort. All that was needed was proof of the intention to commit the crime and the carrying out of acts which took the matter beyond the stage of mere intention to the stage of perpetration.

I appreciate that difficult questions can arise where, for some absurd reason, the completed crime could not have been committed. Examples were mentioned in the argument of cases where a person stabs a person who is already dead or where on the true facts the notion that a crime could have been committed was fanciful. I do not think that these difficulties affect the principle. There will no doubt be cases where no good purpose would be served in prosecuting a person who acted in this way, because his actings were so wholly misconceived as to cause no risk of harm to anybody. But the principle which enables an attempt to commit a crime to be prosecuted is a valuable one. I think that its value is demonstrated by the present case, where the act which the appellant intended to commit was one which all those who are concerned about the abuse of controlled drugs in places of public entertainment would condemn as a flagrant breach of sec 5(3) of the Act. The fact that an attempt to commit a crime of this character is punishable as an offence under the Act is an important weapon in the range of measures which are available to deter and punish the supplier or would be supplier of controlled drugs.

In my opinion the charge is relevant. For these reasons and the reasons given in more detail by the Lord Justice-Clerk, with whose opinion I am in full agreement, I would refuse the appeal.

LORD JUSTICE-CLERK (Ross)—This is an appeal under sec 334(2A) of the Criminal Procedure (Scotland) Act 1975 (as amended). The appellant was charged in the sheriff court at Ayr on a complaint libelling two charges. The first charge libels a contravention of secs 5(3) and 19 of the Misuse of Drugs Act 1971. The second charge libels a contravention of sec 3(1)(b) of the Bail etc (Scotland) Act 1980.

The appellant intimated a plea to the relevancy of the complaint in respect that what was libelled in charge 1 was not a crime known to the law of Scotland. After hearing parties the sheriff repelled the plea to relevancy, and on the motion of the solicitor for the appellant, granted leave to appeal. After hearing parties, this court on 30 June 1995 remitted the appeal to a bench of five Lords Commissioners of Justiciary for consideration under reference to an opinion of that date delivered by the Lord Justice General. It was made clear in that opinion that what the court would require to hear argument upon was whether a person might be guilty of attempting to commit a crime which he intended to commit although the facts were such that the commission of that crime by him was impossible.

Charge 1 on the complaint is in the following terms: [his Lordship quoted the terms of charge 1 and continued:]

Section 5(3) of the Act of 1971 provides as follows: ‘5.—…(3) Subject to sec 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of sec 4(1) of this Act…

‘19. It is an offence for a person to attempt to commit an offence under any other provision of this Act or to incite or attempt to incite another to commit such an offence.’

It will be seen from charge 1 on the complaint that the appellant is not charged with the complete offence under sec 5(3) but with attempting to commit the complete offence under sec 5(3). It is libelled that he took possession of a number of tablets which he believed to contain but did not in fact contain the controlled drug commonly known as ecstasy; and that he did so with intent to supply that controlled drug to another or others. It is averred that he thus attempted to commit the contravention of sec 5(3) of the Act of 1971.

As the sheriff makes plain in his report, it was submitted to him that the charge was irrelevant in that there could be no actus reusas the completed crime was impossible to commit. The sheriff proceeds to rehearse the submissions made to him, and at the end of the day he states that on balance he preferred the submissions made on behalf of the Crown. It was for that reason that he repelled the objection to the relevancy, and it is his decision to do so which is now under appeal.

In presenting his submissions counsel for the appellant explained that, so far as charge 1 was concerned, erroneous belief lay at its heart. He stated that numerous arguments on the issue arose in textbooks, but he maintained that the present case was on all fours with HM Advocate v Semple. In that case the indictment contained charges of attempting to cause a woman to abort (which were held relevant) and also two charges to the effect that the accused had supplied a woman whom he believed to be pregnant with powders and pessaries with intent to cause her to abort, and instigated her to take and use them, which she did. It was not, however, alleged that the woman was in fact pregnant, or that the powders and pessaries were noxious or calculated to endanger health or life, or that the woman suffered any harm from taking them. The court held that these charges were irrelevant. Counsel emphasised that the erroneous belief of the accused had been central to the discussion in HM Advocate v Semple. Before the sheriff reference was also made to Lamont v Strathern, and counsel maintained that that decision and HM Advocate v Semple could be reconciled because in Lamont v Strathern the question of the accused's belief had never been raised.

Counsel contained that, as matter of language, attempting to do something is regarded as indicating a failure to do it.

Counsel then drew attention to Hume on Crimes, i, 26–30; Bell's Supplemental Notes, pp 2–3; Alison, Criminal Law, i, 163–175; HM Advocate v Anderson;Coventry v Douglas; Maxwell v HM Advocate and HM Advocate v Forbes.

Although an attempt to commit an offence which cannot be committed is now dealt with in England by statute, counsel drew the court's attention to a number of English authorities which he maintained showed what the common law in England was in relation to this matter. In R v Smith (Roger) the House of Lords held that where the commission of a crime required the existence of an essential fact, in a charge of an attempt to commit that crime, the Crown required to prove (a) mens rea; (b) an act or acts of perpetration; and (c) the existence of the essential fact. He also contended under reference to that case that absence of the essential fact could not be replaced by the accused's mistaken belief that the essential fact existed. This, he maintained, was the common law in England, and be submitted that a similar approach should be adopted in this country. He also referred to Mieras v Rees and DPP v Nock where R v Smith was applied.

Section 1 of the Criminal Attempts Act 1981 provides inter aliaas follows: [his Lordship quoted the terms of subss (1), (2) and (3) and continued:]

The foregoing statute extended to England and Wales only. Following the coming into force of these statutory provisions, the topic was considered by the House of Lords in Anderton v Ryanand in R v Shivpuri. The latter case overruled the former.

In presenting his submissions, counsel very frankly stated that he would find it difficult to argue that Lamont v Strathern was wrong. He submitted, however, that no general rule could be laid down, and that the court required to consider the particular circumstances libelled. As I understood it, at the end of the day, he relied upon the approach of the House of Lords in R v Smith. He conceded that for certain offences under the Misuse of Drugs Act 1971 it was not necessary for a controlled drug to be in existence. For example, under sec 4(3) a person could be convicted of offering to supply a controlled drug to another, even though the controlled drug in question was not in existence. However, he maintained that so far as charge 1 on this complaint was concerned it was irrelevant because the most that could be said was that the appellant believed that the tablets contained a controlled drug. They did not in fact contain a controlled drug, and therefore the Crown was unable to prove a requisite for the charge.

The advocate depute pointed out under reference to sec 19 of the Act of 1971 that an attempt to commit an offence under the Act of 1971 was itself an offence. He contended that an attempt occurred when a person had the necessary mens rea and did something with a view to perpetrating the offence. That was the general rule of Scots law, and he submitted that that rule should be applied unless it could be shown that there were some exceptions to it. The advocate depute contended that for a charge such as charge 1 on this complaint it was not essential that there be controlled drugs in existence. He put forward the following example: if a person went to a meeting with money with a view to purchasing controlled drugs, and met someone else for that purpose, and when the other person arrived money was handed over to him. If the police then moved in but the would-be seller disappeared, one could never know what he had to give in exchange for the money, but knowing what the would be purchaser's intent was, it could never be said that there had not been a genuine attempt on his part to be concerned in the supplying of a controlled drug.

In the present case he emphasised that the accused was acting in belief that the facts were as he believed them to be. That was sufficient. He further maintained that HM Advocate v Anderson and HM Advocate v Semple should be disapproved. He gave a further example of a man breaking into a chemist's shop and attempting to steal therefrom. If his intention was to steal controlled drugs, and when he broke in he discovered that the only drugs in the chemist's shop were not controlled drugs, it would still be relevant to charge that he had attempted to possess controlled drugs with intent to supply them to another.

Both counsel for the appellant and the advocate depute considered the various hypothetical cases which had been canvassed in the reported cases, although they were not agreed as to whether these hypothetical cases constituted attempts to commit crimes.

The advocate depute also referred to a number of cases dealing with how far an accused required to go before he could be said to be attempting to commit a crime. He cited Burns v Allan;Strachan v HM Advocate, and Heywood v Reid.

The advocate depute made it clear that his principal submission was that charge 1 was relevant in that it libelled that the accused had the necessary mens rea for an attempt, and had done sufficient to constitute perpetration. He also advanced an alternative submission to the effect that there might be exceptions to the general rule that that was sufficient to constitute an attempt. He also submitted that some of the reasoning in HM Advocate v Anderson, Lamont v Strathern, and HM Advocate v Sempleshould be disapproved. The advocate depute appreciated that, as he put it, the matter could be debated endlessly, but he directed attention to an article entitled ‘Impossibility in Criminal Attempts’, 1965 JR 136 by Mr Brian Gill (as he then was), and an article by Professor Glanville Williams, ‘The Lords and Impossible Attempts or Quis Custodiet Ipsos Custodes?’ (1986) CLJ 33. He also very helpfully drew attention to one New Zealand case and one Australian case. They were R v Willoughby and Britten v Alpogut. The advocate depute invited us to refuse the appeal.

It appears to me that the issue raised in this appeal falls to be decided as a matter of principle. In his Criminal Law (2nd edn), Sheriff Gordon at para 6–49 states: ‘One of the most controversial problems in the law of attempt is the question of responsibility for attempts to commit crimes which are impossible of achievement.’

In a footnote he observes that the amount of literature on this topic is out of proportion to its practical importance, and I respectfully agree with him. So far as the law of Scotland is concerned, the starting point is Hume on Crimes, i, 26–30. At p 26, Baron Hume having dealt with dole or mens rea, goes on to consider "Attempt, when punishable". He states:

"I have now said enough concerning the nature of that inordinate and vicious will, which is essential to the guilt of every crime. But the vicious will is not sufficient, unless it is coupled to a wrongful act. And here the question arises, how far must the culprit have proceeded in the prosecution of his wicked purpose, to make him answerable in the tribunals of this world?’

Baron Hume then goes on to consider various instances where enough has been done to constitute an attempt.

At p 27 Baron Hume states: ‘But further, even when no harm ensues on the attempt, still the law rightly takes cognisance of it, si deventum sit ad actum maleficio proximum; if there has been an inchoate act of execution of the meditated deed; if the man have done that act, or a part of that act, by which he meantand expected to perpetrate his crime, and which, if not providentially interrupted or defeated, would have done so; and more especially still (but this is not indispensable), where he has done something which must have its own course, and puts repentance out of his power. Under this rule falls the case of one who mingles a draught of poison, and offers the cup to the intended victim; or who kindles combustibles, and tosses them upon or among the stacks in his neighbour's barn-yard; or who, to defraud the underwriters on his ship, bores holes in the ship's bottom, and draws the plugs when at sea, and abandons the ship; or who instigates others, though ineffectually, to raise fire; or seriously endeavours to suborn false witnesses, or to bribe a public officer, or to seduce a servant to poison or to rob his master, or to un-fasten the bolts and locks of his master's shop, that the thief may enter in the night and steal. In such cases, not only is the wickedness of the man's heart disclosed, (that is notsufficient): But the business takes a definite and more active shape, and this in pursuance of a new, a final, and a more resolute act of the delinquent's will, which is quite distinct from all his previous contrivances and meditations, how long and laborious soever. On all such occasions, the law therefore justly and wisely interferes, because the ultimate and meditated act is in part done; and it is not good for the public, nor for the delinquents themselves, that they should be encouraged with the belief that they may go such lengths, unpublished.’

That passage supports the advocate depute's proposition that an attempt occurs when a person has mens rea, and takes some positive act towards executing it. Although Baron Hume does not expressly deal with the question of an attempt to commit a crime which is impossible of achievement, that situation is, in my opinion, covered by his reference to a man having done the act by which he meant to perpetrate the crime but which has been ‘providentially interrupted or defeated’. Support for the view that a relevant charge of attempt to commit a crime can be committed although it is in fact impossible to commit the completed crime, can be found in Bell's Supplemental Notes, p 3. After dealing with a case of attempted murder where the indictment had been accepted as relevant, Baron Hume adds: ‘It was observed, that if a tube filled with gunpowder, which had become unexplosive, were used, or a gun out of which the ball had fallen, there would be no real danger, but a grave attempt to kill, and so a relevant charge would lie. The ineffectual attempt to explode a gun having a bad lock, was viewed in a similar light.’

These appear to me to be all examples of situations where the completed crime was impossible of achievement. If the gunpowder had lost its explosive quality or if the ball had fallen out of the gun, or the gun had a defective lock, then killing would not have been achieved. Nonetheless Hume observes that the court's view was that a relevant charge would lie.

In Alison, Criminal Law, i, 165, it is stated: ‘In attempts at murder, the crime is to be held as completed if the pannel has done all that in him lay to effect it, although, owing to accident or any other cause, the desired effect has been prevented from taking place. If a person fired a pistol at his neighbour's head, but it miss fire, or the ball does not hit the object at which it was directed; or he strike with a dagger, but it light on a button and produce no injury, still the offender has done all that he could to effect his purpose, and he should be judged guilty of attempt to murder. Accordingly, in the case of Hume and Justice, July 30 1744, the libel was laid as for an attempt to murder, in consequence of discharging a pistol which missed its aim.’

In my opinion in the passage quoted above the words ‘or any other cause’ would cover the situation of an attempt to commit a crime which it was impossible to commit.

In this century the first case where the aspect of impossibility was considered appears to be HM Advocate v Anderson. The charge in that case libelled that the panel ‘did insert pieces of slippery elm bark or other substances into the private parts of Agnes M'Kain, wife of and residing with the said Falconer M'Kain, in the belief that she was pregnant, and for the purpose of causing her to abort, and did attempt to cause her to abort’.

An objection to the relevancy of that charge was taken in respect that the indictment did not set forth that the complainer was in fact pregnant at the time of the alleged crime. Lord Anderson held that since it was not alleged that the complainer was in point of fact pregnant, he was bound to assume that she was not pregnant. He expressed the view that an allegation of pregnancy was an essential part of a charge of procuring or attempting to procure abortion, and that it was not enough that the accused believed there was pregnancy if in point of fact there was none. At one point of his opinion he stated: ‘To attempt to do what is physically impossible can never, in my opinion, be a crime.’ HM Advocate v Anderson was cited in Lamont v Strathern. In that case the accused had been charged with theft, and had been found guilty of, while acting in concert, attempting to steal money from the complainer's person. Lord Sands explained in his opinion that the sole question was whether the sheriff was warranted in convicting the accused of an attempt to steal money in the absence of satisfactory evidence that the complainer's pocket contained money. He stated at p 36: ‘I am not, I confess, impressed by the metaphysical argument that, whereas one cannot take what is not there, therefore one cannot attempt to take what is not there. I apprehend that, if men were charged with illegally attempting to take salmon with a net from a certain pool, contrary to any Act which declared any such attempt to be illegal, it would be a futile defence that, as they caught nothing, the pool proving to be empty, they did not attempt to take the salmon. Nor, I think, would it be reasonable to deny to Mother Hubbard the credit of an attempt to fetch a bone for her dog.’

Subsequently he pointed out that the would-be thief may have no knowledge of what, if anything, is in the complainer's pocket, and he stated: ‘He attempts to steal whatever he may happen to find there.’ Later in his opinion at pp 37–38 Lord Sands proceeded to distinguish HM Advocate v Anderson:‘A charge of attempt at criminal abortion is a charge of an attempt to make a pregnant woman abort. A charge of attempt to steal is a charge of attempting to steal anything of value that might be found. The completed acts may be on the same footing. One cannot cause abortion if the womb be empty, or steal a valuable if the pocket be empty. But the attempts may be on a different footing. As regards abortion, I understand that the view taken was that attempt to commit abortion must be an attempt to cause a pregnant woman to abort. A pregnant woman is a condition of the offence. On the other hand, in the case of attempted theft from a pocket, that is an attempt to steal whatever may be found there. A pocket which may contain something of value is the only condition.’

Lord Blackburn stated at p 38: ‘In short, I am of opinion that, although the crime of theft cannot be completed unless the thief obtains possession of something belonging to another, nevertheless an attempt to commit a theft may be proved independently of any transfer of property or indeed of there being any property to transfer. It would, I think, be enough to justify a conviction of attempt to steal that the thief had reason to think there might be something to take possession of.’

The report makes it plain that the Lord Justice-General concurred, and that must mean that he concurred with both Lord Sands and Lord Blackburn.

In HM Advocate v Semple, Lamont v Strathern was referred to in the argument, but the only reference to it appears in the opinion of Lord Fleming. As already observed there were two charges where it was libelled that the appellant had supplied to a woman in the belief that she was then pregnant a number of powders and pessaries with intent to cause her to abort, and had instigated and caused her to take and use the same which she did, and that he had done this with intent to-cause her to abort. The Lord Justice-Clerk observed that attempt to procure abortion was not libelled in these charges. He added: ‘I think it was rightly not libelled, because it is an essential element of the crime of attempting to procure abortion that there be something to abort; in other words, the woman must be pregnant.’

The Lord Justice-Clerk went on to consider the case of HM Advocate v Anderson where the charge was laid as a charge of attempting to procure abortion. He stated: ‘I have not the slightest doubt that Lord Anderson was right in holding, on the terms of the libel with which he had to deal, that it did not set out the crime of attempt to procure abortion. Now, in this case the Crown has not libelled pregnancy, only a belief in the mind of the panel that the woman was pregnant, and it is said that what was done was done in that belief and with the intent to cause an abortion. In my judgment, that does not disclose a crime as the law of Scotland at present stands.’

Lord Fleming, when dealing with these charges, referred to the dictum of Lord Sands in Lamont v Strathern. He agreed that the two charges in HM Advocate v Semple to which I have referred were not relevant apparently because it was not alleged that the woman was in fact pregnant, or that the powders and pessaries were noxious or calculated to endanger health or life, or that the woman suffered any harm from taking them. Lord Moncrieff expressed similar views.

There is no doubt that these cases raise sharply the question of whether it is necessary for the relevancy of a charge of attempting to commit a crime, that the completed crime was capable of being committed. In my opinion, it is essential to bear in mind that an attempt to commit a crime is a different offence from committing the complete crime. There can be no question of an accused committing an offence which it is impossible to commit. When the crime is impossible of achievement, the most that an accused can be guilty of is an attempt to commit that crime. It is the fact that it is impossible to commit the complete crime which has resulted in the accused being charged with an attempt to commit that crime. But the fact that it is impossible to commit the complete crime does not, in my opinion, preclude the Crown from charging an accused with an attempt to commit the crime. I see nothing illogical in an accused being charged with attempting to commit a crime which is impossible of achievement. In my opinion Lamont v Strathern was correctly decided, and a man may be convicted of attempt to steal by putting his hand towards another man's pocket with the object of stealing money therefrom, even though there was nothing in the pocket to steal. The fact that there was nothing in the pocket to steal means that the accused cannot be convicted of theft, but provided that he has had the necessary mens rea, and has taken sufficient positive steps towards the perpetration of the crime, he can be convicted of attempted theft, and it does not matter that the pocket was empty.

In HM Advocate v Anderson Lord Anderson stated: ‘To attempt to do what is physically impossible can never, in opinion, be a crime.’ In my opinion that is an unsound statement of the law. The fact that something is physically impossible will prevent an accused from being convicted of the complete crime, but it does not prevent him being relevantly charged with attempt to commit that crime provided that he has the necessary mens rea, and does some positive step towards executing his purpose.

Although Lamont v Strathern, was, in my opinion, correctly decided, I am not persuaded that the approach favoured by Lord Sands towards the end of his opinion is well founded. He described a pocket which may contain something of value as a condition of the offence which he was considering. In my opinion that is not the proper approach. It is unnecessary to consider whether, as Lord Anderson thought, an allegation of pregnancy was an essential part of the charge which he was considering, or, as Lord Sands thought, whether a pocket which might contain something of value was a condition of the charge which he had under review, and indeed such an approach is misleading. When considering whether a relevant charge of attempting to commit a crime has been laid, it is not necessary to consider whether or not it was impossible for the complete crime to be committed. All that the court requires to do is to consider whether the accused has the necessary mens rea, and has taken matters further by doing some positive act towards execution of his purpose. That is not to say that what the accused believes is irrelevant. As Sheriff Gordon points out in para 6–49, where the accused knows of the impossibility of doing what he is attempting to do there can be no attempt. In a charge such as the present charge, the charge would be irrelevant unless it were libelled that the accused believed that the tablets of which he had taken possession contained controlled drugs. If he did not believe that, the charge of attempting to commit the crime could not in the circumstances succeed.

With the greatest respect to the distinguished judges in the House of Lords who decided R v Smith and the other cases already referred to, it appears to me that they have failed to give proper weight to what requires to be proved for an attempt, and have treated an attempt as requiring the same actus reus as the completed crime. In R v Smith at p 499 Lord Reid said: ‘But this theory attaches a very different meaning to the word "

attempt". The accused has done, as he did here, everything which he intended to do. There is no question of drawing a line so that remote acts of preparation are not attempts but acts proximate to the crime are attempts. The crime is impossible in the circumstances, so no acts could be proximate to it. The theory confuses attempt with intent. If the facts had been as he believed they were the man would have committed a crime. He intended to commit it. But he took no step towards the commission of a crime because there was no crime to commit.’

In my opinion if it is impossible to commit the complete crime, it does not follow that an accused can carry out no acts which are preparation or are acts proximate to the crime which is being attempted.

In the course of their speeches in R v Smith and the other House of Lords decisions, a number of hypothetical examples were considered. These included a pickpocket who puts his hand into another man's pocket only to find it empty; a man who attempts to assassinate a corpse, or a bolster in a bed, believing it to be the living body of his enemy; or a man who fires into an empty room believing that it contained an intended victim; and a man who takes away an umbrella from a stand with intent to steal it believing it not to be his own, although it turns out to be his own. As I understand it, the view was expressed that none of these were examples of attempts which were criminal because it was impossible in the circumstances to commit the complete offence. For my part, I am satisfied that all these instances would constitute relevant charges of attempt to commit the complete offence because the accused had the necessary mens rea, and had taken positive steps to carry out his purpose. The only reason that his purpose was not carried fully into effect was that it was impossible to commit the complete crime. I am not persuaded that the fact that it was impossible to commit the complete crime would prevent a relevant charge of attempt to commit that crime being laid.

It would be supererogatory to attempt to examine all the literature on the subject of attempts to do the impossible, but it is worth recording that the opinion which I have formed appears to find support in the articles written by Mr Brian Gill (as he then was) and Professor Glanville Williams, to which reference has already been made, and in Gordon, Criminal Law, para 6–54.

Despite the confusion which emerges from the trilogy of House of Lords cases to which I have referred, it is interesting to see that in earlier times the English approach appears to have been very similar to that described by Baron Hume for Scotland. In R v Scofield,Lord Mansfield said: ‘So long as an act rests in bare intention it is not punished by our laws, but immediately when an act is done, the law judges, not only of the act done, but of the intent with which it is done, and if it is coupled with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable.’

It is also interesting to see how, in relation to drugs, similar questions have been dealt with in New Zealand and Australia. In R v Willoughby which was a case of conspiracy, it could not be proved that the packet in question contained controlled drugs. Speight J in the Supreme Court, Auckland observed: ‘Ordinarily where there is evidence that a person has attempted to commit an offence but it has proved factually impossible, a verdict of attempt can be sustained, for example, the pickpocket case and the cases of supplying the means of procuring an abortion which in fact, unknown to the offender, prove innocuous’ (at p 68).

Even though there was no evidence that the material handed over was heroin, Speight J said: ‘If, therefore, in the terms of sec 72 an accused person has an intention to commit that offence, that is intends to have heroin in his possession, and does an act such as purchasing or attempting to purchase to that end, or, as here, pays over money, then in my view he comes within the plain wording of sec 72 read in the context of the Misuse of Drugs Act.’

In Britten v Alpogut, the defendant believed that he was importing and intended to import into Australia a prohibited import, namely cannabis, but the substance which he believed to be cannabis and which he imported was another substance which was not a prohibited import. The Full Court of the Supreme Court of Victoria held that R v Smith (sub nom Haughton v Smith) did not state the common law in Victoria applicable to criminal attempts, and that there was a case to answer. Murphy J at p 935 said: ‘In my opinion, it can be said that before Haughton v Smith the law of attempt punished a manifest criminal intention to commit a crime which was not accomplished.

‘For some inexplicable reason the law of attempt became involved with the question whether or not the crime attempted could have been in fact accomplished by the accused.

‘It was thought by some that the accused could not be convicted of an attempt to commit a particular crime, when on the facts of the case it would not have been possible for the accused to commit the crime in question.

‘Immediately, there was a confusion demonstrated between the relevant step in the commission of a possible crime and a relevant step in the commission of an intended crime, but one not capable of being accomplished.

‘Courts began to ignore the importance of the intention of the accused and tended to concentrate on the question whether what was done was a step towards a crime, which if uninterrupted, would have been committed.’

Subsequently at p 934, Murphy J added: ‘For if the evil intent of the actor can make a sufficient proximate though objectively innocent act criminal, so as to amount to an attempt, it would seem irrelevant to have to go on to see whether the attempt could or would have succeeded. At common law, if the intent was to commit a recognised and not an imagined crime, and the act done was not merely preparatory but sufficiently proximate, then at that stage an attempt to commit the recognised crime has been committed, and it seems to me it is not necessary to go further.’

At p 938, Murphy J stated:

‘It would also be to recognise that at common law a criminal attempt is committed if it is proven that an accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and are not seen to be merely preparatory to it. The ‘objective innocence’ or otherwise of those acts is irrelevant.

‘Impossibility is also irrelevant, unless it be that the so-called crime intended is not a crime known to the law, in which case a criminal attempt to commit it cannot be made.’

In my opinion the logic expressed in these two cases is undoubted. Speight J and Murphy J appear to me to be expounding principles which are in line with the approach of the court in Scotland in Lamont v Strathern. I accordingly agree with the advocate depute that for a relevant charge of an attempt to commit a crime, it must be averred that the accused has the necessary mens rea, and that he has done some positive act towards executing his purpose, that is to say that he has done something which amounts to perpetration rather than mere preparation. If what is libelled is an attempt to commit a crime which is impossible of achievement, impossibility is irrelevant except that there can be no attempt to commit the crime if the accused is aware that what he is trying to do is impossible. Except to that extent, impossibility has no relevance.

In the present case, it is libelled that the accused not merely had possession of tablets which he believed to contain a controlled drug with intent to supply that controlled drug to another or others, but that he had taken possession of these tablets. I am accordingly satisfied that the terms of charge 1 disclose that the appellant had the necessary mens rea, and that he took a positive step towards carrying out his purpose, namely, he took possession of the tablets in question. That being so, the necessary ingredients are present to support the charge that he attempted to have the controlled drug in his possession with intent to supply it to another in contravention of sec 5(3) of the Act of 1971. In my opinion the objections taken to the relevancy of this charge are not soundly based, and the sheriff was correct to repel the objections to the relevancy.

The objections put forward were based upon HM Advocate v Anderson and HM Advocate v Semple. So far as HM Advocate v Anderson is concerned I am of opinion that the charge in that case was a relevant charge of attempting to cause the complainer to abort, and that the decision of Lord Anderson should be disapproved. In my opinion this court should expressly disapprove of the statement in his opinion to the effect that to attempt to do what is physically impossible can never be a crime.

I would also disapprove of various dicta in HM Advocate v Semple. I would disapprove of the statement of Lord Justice-Clerk Aitchison at p 45 to the effect that it is an essential element of the crime of attempting to procure abortion that there be something to abort, in other words, that the woman must be pregnant. I would also disapprove of the final paragraph of Lord Fleming's opinion which proceeds upon the basis that the charge was irrelevant because it had not been alleged that the woman was in fact pregnant.

Although I am satisfied that the case of Lamont v Strathern was correctly decided, and that the appellant was correctly convicted of attempted theft, I have already indicated that the approach of Lord Sands in the latter part of his opinion is unsound. In particular it is incorrect to hold that a pregnant woman is a condition of a charge of attempt to commit abortion.

In my opinion these three cases will in future all require to be read in the light of the decision of the court in the present case. I would accordingly refuse the appeal and affirm the decision of the sheriff.

LORD SUTHERLAND —The charge against the appellant is that he took into his possession a substance which he believed to be a controlled drug with intent to supply it to others and thus attempted to have in his possession a quantity of drugs with intent to supply. This unusual form of charge is attributable to the fact that the substance was not in fact a controlled drug at all. On behalf of the appellant it was contended that the charge is irrelevant because, in the absence of any controlled drug, no crime could be committed. On behalf of the Crown it was contended that what was material was the appellant's belief that it was a drug and therefore, having taken steps to take the substance into his possession, he was guilty of an attempt to have drugs in his possession. The charge is laid under sec 19 of the Misuse of Drugs Act 1971 but it was not suggested that there was any material distinction between a statutory attempt created by that section and the common law offence of attempt.

The first thing to be noticed is that while the commission of a crime is an offence, an attempt to commit that same crime is an entirely separate form of offence. Section 61 of the Criminal Procedure (Scotland) Act 1887 provided:

"Attempt to commit any indictable crime shall itself be an indictable crime."

There may be a variety of reasons why the crime was not completed. In the case of attempted murder, for example, it may be that the attack was not pressed home with sufficient vigour, or it may be that prompt and skilled surgery saved the victim's life, or it may be that the shot fired at the victim missed, or it may be that unknown to the assailant the intended victim was already dead. In all of these instances the assailant intended to kill the victim and took active steps towards that end. In each case if the question was asked ‘What was the assailant trying to do?’, the answer would be that he was trying to kill the victim. From the point of view of the criminality of the assailant there can be no difference in any of these cases. Logically, therefore, there should be no difference in the form of charge to be faced by the assailant. In each case active steps of perpetration have been taken with the intention of killing the victim. The combination of active steps of perpetration and mens rea constitutes the crime of attempted murder.

It has however been said that if the perpetration of the completed crime would be impossible then the crime of attempt to commit the completed crime cannot exist. Thus in the examples given above the assailant whose victim was already dead must be held to have committed no crime, even though he thought the victim was alive and intended to kill him. This proposition, however, in my opinion confuses the offence of committing the crime with the offence of attempt. The only reported Scottish example of a case of this type which is directly in point is HM Advocate v Anderson, the reasoning in which was supported in HM Advocate v Semple. Andersoninvolved a charge of attempted abortion where the accused believed the woman to be pregnant although in fact it was not proved that she was. Lord Anderson held that ‘An allegation of pregnancy is, in my opinion, an essential part of a charge of procuring or attempting to procure abortion’. It is clear from this sentence alone that his Lordship was making no distinction between the completed crime of procuring the abortion and the crime of attempt. That, in my view, incorporates a fatal flaw in his reasoning. Of course it is true that the crime of procuring an abortion cannot be established if no foetus has been aborted, but the same reasoning does not apply to the crime of attempt which requires only an overt act of perpetration together with an intention to commit a crime. His Lordship later states as a broad proposition: ‘To attempt to do what is physically impossible can never, in my opinion, be a crime.’ Why not? It is of the essence of an attempt that the crime has not been completed. If there is a determined attempt, coupled with a guilty intent, when assessing the guilt of the perpetrator it cannot in my opinion be material what is the reason why the crime has not been completed.

Semple involved, inter alia, a charge of administering powders with intent to procure abortion. It was held that this charge was irrelevant on the ground that administering unspecified powders was not a criminal offence and could not be converted into a criminal offence by reason of evil intent. The court, however, also expressed the view that Anderson was correctly decided. Lord Justice-Clerk Aitchison said: ‘We were referred to the case of Anderson. In that case, upon a libel which did not set out that the woman was pregnant, but merely, as here, that the panel did certain things in the belief that she was pregnant, Lord Anderson held the libel to be irrelevant, but there the charge was laid as a charge of attempting to procure abortion. I have not the slightest doubt that Lord Anderson was right in holding, on the terms of the libel with which he had to deal, that it did not set out the crime of attempt to procure abortion.’

While I would hesitate to disagree with such a distinguished authority, it has to be said that his Lordship appears simply to be accepting the dicta of Lord Anderson without considering the reasoning or lack of it behind these dicta. The charge in Semple was not a charge of attempted abortion and in order to decide the relevancy of the charge in Semple it was not strictly necessary to deal with what was necessary for a charge of attempted abortion. Furthermore, if the matter had been fully considered the court would have had to distinguish Lamont v Strathern, a case which was not referred to in the judgments in Semple apart from a passing reference by Lord Fleming to ‘a dictum by the late Lord Sands’. Lamont involved a charge of theft. The evidence, however, did not establish that the pocket into which the accused attempted to put his hand contained any money and the accused was convicted of attempted theft. Lord Sands said: ‘I am not, I confess, impressed by the metaphysical argument that, whereas one cannot take what is not there, therefore one cannot attempt to take what is not there.’

Later he comments on Anderson as follows: ‘A charge of attempt at criminal abortion is a charge of an attempt to make a pregnant woman abort. A charge of attempt to steal is a charge of attempting to steal anything of value that might be found. The completed acts may be on the same footing. One cannot cause abortion if the womb be empty, or steal a valuable if the pocket be empty. But the attempts may be on a different footing. As regards abortion, I understand that the view taken was that attempt to commit abortion must be an attempt to cause a pregnant woman to abort. A pregnant woman is a condition of the offence. On the other hand, in the case of attempted theft from a pocket, that is an attempt to steal whatever may be found there. A pocket which may contain something of value is the only condition.’

The attempt to distinguish between an empty womb and an empty pocket does not appear to me to be convincing. An attempt to abort what may be in the womb is surely as valid an attempt as an attempt to steal what may be in a pocket. If it is not a condition of attempted theft that the pocket should have some contents then equally it should not be a condition of attempted abortion that the womb should have some contents. What matters is that in both cases the perpetrator takes active steps to achieve his goal with the evil intent of committing a criminal offence. Having done so he has committed the indictable offence of attempt to commit a crime. Reading between the lines of Lord Sands' judgment it appears that he was not wholly convinced of the correctness of the decision in Anderson. It is perhaps unfortunate that he did not say so in terms which would have forced the court in Semple to consider the matter in detail. In my opinion, however, Anderson was wrongly decided. The actual decision in Semple was sound insofar as the Crown refrained from libelling an attempt to procure abortion, but I consider that the dicta supporting Andersonare unsound.

We were referred to a number of cases from other jurisdictions. The English cases I find of no assistance. The position was tolerably clear, more than 200 years ago, when Lord Mansfield said: ‘So long as an act rests in bare intention it is not punished by our laws, but immediately when an act is done, the law judges, not only of the act done, but of the intent with which it is done, and if it is coupled with an unlawful and malicious intent, though the act itself would otherwise have been innocent, the intent being criminal, the act becomes criminal and punishable’ (R v Scofield).

Subsequent cases appear to me to demonstrate the dangers of what Lord Sands described as metaphysical arguments while ignoring the fact that an attempt is not the same as a completed crime. The state of the law in England now rests on sec 1 of the Criminal Attempts Act 1981, despite attempts to emasculate it by the House of Lords in Anderton v Ryan which had to be overruled in R v Shivpuri, and I consider that the propositions set out in subsecs (1) to (3) of sec 1 correspond with the common law of Scotland. Cases from New Zealand are not of great assistance as the law there, since at least 1961, has had the same statutory basis as now prevails in England. The principal Australian case to which we were referred was Britten v Alpogut. That case involved a charge of attempting to import cannabis where the defendant imported what he believed was cannabis when in fact it was a non-prohibited substance. Murphy J reviewed in detail the English authorities from Scofield to Shivpuri. His conclusion was in the following terms: ‘at common law a criminal attempt is committed if it is proven that the accused had at all material times the guilty intent to commit a recognised crime and it is proven that at the same time he did an act or acts (which in appropriate circumstances would include omissions) which are seen to be sufficiently proximate to the commission of the said crime and are not seen to be merely preparatory to it. The ‘objective innocence’ or otherwise of those acts is irrelevant. Impossibility is also irrelevant, unless it be that the so-called crime intended is not a crime known to the law, in which case a criminal attempt to commit it cannot be made.’

I find myself in complete agreement with both the reasoning and the conclusion reached by Murphy J.

Accordingly it is clear that the law in other jurisdictions supports the view that I have taken as to the proper principles to be applied to cases of attempt in Scotland and I am satisfied that Anderson was wrongly decided and subsequent dicta supporting that decision were unsound.

I concur with the more detailed reasons given by the Lord Justice-Clerk and the disposal of this case by dismissing the appeal.

LORD CAMERON OF LOCHBROOM —Section 19 of the Misuse of Drugs Act 1971 makes it an offence in Scotland for a person to attempt to commit an offence under any of the provisions of the Act. It has not been suggested that the general principles governing what constitutes an attempt to commit a crime at common law are not applicable to the constituents of the offence at which sec 19 strikes.

In terms of the libel the Crown offer to prove that on 5 November 1994 the appellant took possession of 20 tablets, that he believed the tablets to contain a controlled class A drug, that in fact the tablets did not contain any such drug, and that in taking possession of the tablets his intention was to supply the controlled drug to another or others. The libel continues: ‘and you did thus attempt to have said controlled drug in your possession with intent to supply it to another or others in contravention of sec 4(1) of the Act, contrary to the Misuse of Drugs Act 1971, secs 5(3) and 19’.

The issue is a short and sharp one. If these facts be proved, do they constitute in our law an attempt to commit the offence specified in sec 5(3) of the Misuse of Drugs Act 1971? On one view it might seem that the answer would be straightforward. If the appellant at the moment that he took possession had been asked, what are you doing that for, and had been prepared to answer truthfully, he would have been bound to say, because I want these drugs to supply to others. It would surely be difficult not to label that act with that stated intent as being an attempt to commit the offence with which the appellant is charged. All that the appellant required to do as he saw it, in order to achieve his purpose, had been done. He required to do no more. He had taken the tablets into his possession understanding that they were the controlled drugs which he intended to possess for onward supply.

But it is said for the appellant that even if these facts were to be established in evidence, (it being conceded that if the tablets had in fact contained a controlled drug an offence under sec 5(3) would have been committed), nonetheless no criminal offence would have been committed because it would have been impossible for the appellant to commit the full offence under sec 5(3). Alternatively it is submitted that it is a condition precedent to the commission of the offence of attempt in relation to sec 5(3) that the actions of the appellant from which commission of the offence is to be deduced, must involve his having physical possession of a controlled drug. So he can only be competently charged with such an offence if he has the capacity of a person with such possession in fact. In the present case these do not appear to me to be two distinct lines of argument since none of the relevant sections specify that the offence is directed at and thus can only be committed by a certain class of persons, such as directors or the like. They are in quite general terms.

The foundation of the submissions for the appellants rests upon the decisions in HM Advocate v Anderson and HM Advocate v Semple. It is said that these decisions are inconsistent with the decision in Lamont v Strathernand on one branch of the argument that this last case was wrongly decided. Our law, it is said, does not regard as criminal and hence as punishable as an attempt to commit a crime, acts which though done by a person with criminal intent and in the belief that the crime was being committed, did not constitute, and could not have constituted, that crime because on the facts the commission of that crime by him was impossible.

The decision in Anderson was that of Lord Anderson, whose decisions in matters of criminal law are bound to be given great weight. The charge directed against the accused was of inserting pieces of slippery elm bark or other substance into the private parts of another woman in the belief that she was then pregnant and for the purpose of causing her to abort and so did attempt to cause her to abort. It is clear that the accused was charged as principal and that the charge proceeded on the basis that the other woman consented to the invasion of her body. In the course of his opinion Lord Anderson said: ‘An allegation of pregnancy is, in my opinion, an essential part of a charge of procuring or attempting to procure abortion…it does not appear to me to be material that the accused believed there was a pregnancy, if in point of fact there was none, or that the purpose of the act was to cause abortion, if there was nothing to abort.’

After saying that he was bound to treat the charge as if the libel had been that the accused had inserted injurious substances into the private parts of a virgin in order to effect an abortion, he continued: ‘Had the indictment been so framed, it would manifestly have postulated a contradiction in terms, and have charged the accused with the commission of what was a physical impossibility. To attempt to do what is physically impossible can never, in my opinion, be a crime.’

Having made clear that the ground of his judgment was that the charge was one of an attempt to commit a well known crime, namely, abortion, and that being so, that the prosecutor had to libel that the patient was pregnant, he said: ‘Abortion, in the sense of the criminal law, is held to be criminal because its successful accomplishment results in the destruction of potential human life. That is the main consideration. I agree with the advocate-depute that, incidentally, but only incidentally, regard is also had to the possible injury to the prospective mother. If, however, there is no pregnancy, none of these considerations are applicable.’

Subsequently he said this: ‘The accused, according to the charge, acted just as she would have done had M'Kain been pregnant, and she owes her escape from trial to the fortuitous circumstance that there was no pregnancy.’

Lord Anderson's general statement that to attempt to do what is physically impossible could never be a crime, did not appear to find favour with the court in Lamont. For instance, Lord Blackburn said: ‘I am of opinion that, although the crime of theft cannot be completed unless the thief obtains possession of something belonging to another, nevertheless an attempt to commit a theft may be proved independently of any transfer of property or indeed of there being any property to transfer. It would, I think, be sufficient to justify a conviction of attempt to steal that the thief had reason to think there might be something to take possession of.’

In Lamont the charge was that the appellant had placed his hand in a pocket and it was plainly to be inferred from the remainder of the charge that the Crown offered to prove that he did so with intent to steal. The court appears to have been content to accept the decision in Andersonon the basis that a charge of attempt at criminal abortion is a charge of an attempt to make a pregnant woman abort. Only Lord Sands made specific mention of the case. He sought to reconcile it with the court's decision on the basis that a pregnant woman was a condition of the offence while for attempted theft a pocket which might contain something of value was the only condition of the offence. But Lord Sands went on to suggest that it would be a relevant charge that an accused, in the belief that a woman was pregnant, penetrated her person with intent to cause her to abort though it would not constitute an attempt to procure abortion. It was this dictum which seems to have formed the basis for certain of the charges in the case of Semple.

I shall return to consider the decision in Semple but for the present it is convenient to turn to Hume and to certain of the passages which were referred to in the debate. Hume introduces the discussion by stating that ‘the vicious will is not sufficient, unless it is coupled to a wrongful act’. He poses the question: ‘how far must the culprit have proceeded in the prosecution of his wicked purpose’ (my emphasis) ‘to make him answerable in the tribunals of this world?’

He then points out that the offender may have advanced so far in the prosecution of his wicked purpose as to have already done considerable though inferior harm, so that he can be charged either with attempt to commit the full crime to which his purpose was directed, or with the lesser crime which has in fact been committed but with the added statement that it was done with intent to commit the full crime to which his purpose was directed. He then points out that the law still takes cognisance of what is done where ‘there has been an inchoate act of execution of the meditated deed: if the man have done that act, or a part of that act, by which he meant and expected to perpetrate his crime, and which, if not providentially interrupted or defeated, would have done so’.

In this part of his discussion Hume indicates that it is not indispensable that the accused should have done something which must have its own course, and puts repentance out of his power. After considering certain examples, including that of one who instigates others, though ineffectually, to raise fire and of one who seriously endeavours to seduce a servant to unfasten the bolts and locks of his master's shop that the thief may enter in the night and steal, Hume says this: ‘In such cases, not only is the wickedness of the man's heart disclosed, (that is not sufficient): But the business takes a definite and more active shape, and this in pursuance of a new, a final, and a more resolute act of the delinquent's will, which is quite distinct from all his previous contrivances and meditations, how long and laborious soever. On all such occasions, the law therefore justly and wisely interferes, because the ultimate and meditated act is in part done.’

Hume then points out that the law will not punish the delinquent as though his evil purpose had been fulfilled but only on consideration of the actual result. Subsequently Hume explains that the principle of punishing a conatus proximus remains the same whether it be an attempt to commit some dangerous or flagitious crime or more venial or less formidable offences, within which he includes an attempt at pocket picking, but says that in the latter case ‘the necessity of punishment may not be equally felt’.

Hume then considers the other extreme, namely ‘those remote acts of preparation…which serve indeed to disclose a wicked purpose, less or more firm and mature, but are not actual inceptions, or inchoate acts of execution of the meditated deed, and leave also a long season for repentance’. He makes clear his view that an exception is not easily admitted even where the preparations although remote are of a continued and an elaborate nature, and truly serve to remove some of the main obstacles to the ultimate object, but are still ‘distinct from the final act of perpetration; which requires a new, and a more strenuous effort of the will’. Hume then points out that there may lie a great variety of ambiguous cases between the two extremes, in which it is very difficult to say where preparation ends, and perpetration begins. He takes the instance of one who lies in wait, armed, in the night, at a concerted spot, for a certain expected passenger, to rob and murder him, but the intended victim takes another road or delays his journey; and another much like to it, of a person caught lurking in the night, hard by his neighbour's shop, with a ladder, picklock, and dark lanthorn, and is proved, by the evidence of an associate, to have been there by concert with him, to break into the shop. In both instances, says Hume, the act of coming there ‘is a near step in furtherance of the intended robbery, and quite a distinct act from all the man's previous contrivances or solitary meditations: Yet it is also a distinct act from the assault on the person or the shop, and is not, like the picking of the lock, or the springing out of the passenger, an inception of that assault’.

Hume then says this: ‘And although it certainly is not desirable that criminals should believe they may proceed so far unpunished, yet the law can hardly venture to supply the broad link which is here wanting: Since, after all, fear, remorse, a moment's confusion, some accidental alarm, might have prevented any attempt from being made.’

While Hume does not deal directly with the issue of physical impossibility, in Bell's Supplemental Notes reference is made to the case of James Strang in which a charge of attempted murder by attempting to cause a quantity of gunpowder, which had been disposed and arranged in such a manner as the accused calculated and designed would produce an explosion, to be exploded with intent to destroy life, was held to be relevant. It was observed that if a tube filled with gunpowder, which had become unexplosive, were used, there would be no real danger but a grave attempt to kill and so a relevant charge would lie. In such a case a completed crime to which the purpose of the accused was directed, would thus be physically impossible; nevertheless the accused could be held guilty of attempting to commit the crime.

I take from Hume's discussion the following cases as being within his principle of punishing a conatus proximus. First, if the accused as principal did everything that he intended to do in order to commit the crime upon which his purpose was fixed in the belief that by doing so he would achieve his criminal purpose, but its achievement was rendered impossible by a fact unknown to him, he is guilty of an attempt to commit that crime. Equally if the accused was party to a purpose to commit a crime and acted within that purpose and his associate completed all that was intended to be done to commit the crime upon which their purpose was fixed in a similar belief, the accused is guilty of attempt to commit the crime even though by reason of a fact unknown to him and his associate, it was impossible in fact to commit that crime.

In my opinion Hume's discussion of the law of attempt thus provides a clear and authoritative foundation for the decision in Lamont. There the thief, by putting his hand in the pocket of the other, had done something which could certainly be regarded as an inchoate act of execution of the meditated deed, namely theft of whatever was to be found in the pocket, if indeed it might not more aptly be described as the actual inception of the crime of theft. In my opinion it would have made no difference if it were to have been proved that the thief's intent was fixed solely upon stealing from the other party some particular piece of property which he believed to be in the pocket, but which was not in fact so. The act of placing his hand in the other party's pocket would still have been part of that act by which the intending thief meant and expected to perpetrate his crime. No doubt he could, if he found nothing in the pocket, have withdrawn his hand and his purpose, and hence the completed crime which he had in mind, would have remained unaccomplished. But that would have been beside the point. It is not then necessary to consider if the completed crime could have been accomplished and hence if the full purpose of the accused could have been fulfilled, for a conviction of an attempt to commit the crime to be secured. It is sufficient if it can be established that the accused has embarked upon the actual inception of the crime at least in the sense of carrying out some act which was part of that final act by which he meant and expected to perpetrate his crime. So if he is then interrupted, for whatever reason it may be, and unable to complete what he has begun to do, he is guilty of an attempt to commit the crime upon which he was then intent. Reference was made to a passage in Hume concerning theft (i, 70) in which it is said that if the thief's hand is seized while it is in the other's pocket and has hold of a purse there but the pursue is never withdrawn, that is not theft. But I observe that Hume says that such would amount to an attempt, and this is in line with what he had earlier said in the passage already quoted about an attempt at pocket picking.

In Semple the matter arose on an indictment in which certain of the charges, namely charges 6 and 7, set out that the panel had supplied to a woman a number of powders and pessaries, the nature of which was to the prosecutor unknown, in the belief that she was then pregnant, with intent to cause her to abort and thereafter instigation and use. The charges had then concluded with the phrase "and this you did with intent to cause her to abort". Lord Justice Clerk Aitchison noted that an attempt to procure an abortion was not libelled, and in his opinion rightly so, because it was an essential element of the crime of attempting to procure an abortion that there must be something to abort; in other words the woman must be pregnant. He expressly approved the decision in Anderson. All three judges held that what was libelled did not disclose a crime recognised in the law of Scotland up till then. Lord Moncrieff described these charges as being ones merely of intent in contrast with attempt to commit a crime. He considered that apart from that intent, the acts charged, as the Crown conceded, would carry no taint of crime. He then said: ‘To give medical supplies to a woman who is not stated to be pregnant, when there is no statement that danger has been incurred or that injury has resulted to the woman, is not per se a criminal act, nor does such an act, in my opinion, become criminal by reason only of a delinquent motive.’

Obviously no abortion can be effected unless a foetus is in existence, but it is a matter of fact whether that is so and is to be contrasted with the accused's belief as to the existence of that fact as a determinant in his actions.

In Semple the court in reaching their decision on the charges 6 and 7 must be taken as having agreed with the statement in Anderson that to do what is physically impossible could never be a crime. But when the court was considering the other group of charges, in which it was alleged that the appellant had been party to an attempt to procure abortion, the matter of the possibility or otherwise of bringing about the intended result does not appear to have been considered by any of the three members of the court to be an essential element. In each of the charges in this group it was libelled that the appellant had supplied to a woman, she being pregnant, a number of powders and pessaries, ‘the nature of which is to the prosecutor unknown, with intent to cause her to abort’, followed by instigation and causing the woman to take and use the same, which she did. In dealing with a general objection to the relevancy of the charge, Lord Justice Clerk Aitchison said that it was enough to show participation in the crime if the libel set out that the panel had furnished the instruments with which the full crime, or the attempt, was committed, with the intention that they should be used for the criminal purpose for which they were in fact used. After setting out the facts to be proved, he said this: ‘Now, if these facts are proved they point to such an active participation by the panel in the effort to cause the woman to abort as will amount to the crime of attempt to procure abortion as understood in our law.’

One of the objections taken was that it was not libelled that the powders and pessaries supplied were noxious. In disposing of this objection Lord Justice Clerk Aitchison said: ‘That, in my view, is unnecessary if what was supplied was calculated, in the belief of the panel, to procure abortion…I cannot attach any meaning to these words ‘with intent to cause her to abort’ if they do not postulate a belief in the mind of the panel that what he was supplying was something which was calculated to cause an abortion to take place’.

Lord Fleming in relation to the same point said: ‘The Crown says the nature of those things was unknown to the prosecutor; and, in my opinion, the objection otherwise is completely met by the words used in the indictment "with intent to cause her to abort". These words seem to me to involve at least two things. They involve that the accuse believed that the woman to whom he supplied the powders and pessaries was pregnant, and that the things supplied to her were calculated to procure abortion. If that was his state of mind, then it seems to me that all the essential elements of criminal responsibility are set out in these charges and that this objection to their relevancy also fails.’

Lord Moncreiff said: ‘the modus of the completion of the crime which is charged…is by supplying to a pregnant woman certain powders, pessaries and liquids, of the nature of which no more is said than that this is to the prosecutor unknown. If the charge had ended at this point there would, accordingly, be unanswerable force in the challenge of its relevancy. Before the supplying of powders, pessaries or liquids can be related to an attempt to procure abortion, it of course must be made clear in what way the administration of these articles would be of effect in producing the desired result. In the English statute it has been found proper to charge such a crime by describing the articles under the term "noxious" and associating them with an intent on the part of the person supplying them to procure abortion. In this indictment a similar intent is charged in terms against the panel, but the epithet "noxious" is not used. I regard it as a distinction without a difference. If articles are supplied to a pregnant woman with an intent to cause her to abort, this fixes against the person who supplies her a guilty knowledge, or at least a guilty assertion, which bars him from denying that the supplying of the articles was in fact directed towards that end. Nevertheless, supposing the supply and the intent alone had been charged and no later history referred to in the indictment, that might not per sehave made a relevant charge of crime. The mere supply of such an article if it be not used, and the supply of which is not related to its eventual use, would not infer participation in any subsequent criminal act…I agree with Lord Fleming in holding, on the authority of the institutional writers and upon my own understanding of principle, that such an act of assailing an unborn child may be charged against an expectant mother herself as well as against a third party; and when I find that the indictment narrates but only an original supply but a further supply given to the same woman at a later visit, upon her representation of the failure of effect of the articles first supplied, I find a wholly relevant association of the panel with the woman herself as art and part in an attempt to complete the crime.’

From these passages it is clear that, leaving aside the point that the Crown offered to prove that the woman was pregnant, which the court held was an essential element of the crime of attempt to procure an abortion, the court also held that the appellant could be held guilty art and part of attempt if he supplied materials for use by the woman in the belief that they would in fact secure abortion and the materials were used by the woman for that purpose. Thus the Crown did not require to libel that they were noxious to the knowledge of the appellant and, it must follow, to the knowledge of the woman, only that each believed them to be so. That is to say the crime of attempt could be committed by each of the appellant and the woman notwithstanding that their actings taken together could never have harmed the unborn child, let alone procured abortion. For either to be found guilty of attempt, the chosen means did not have to be capable in fact of bringing about, but only calculated as a matter of their belief to bring about, the desired end.

In my opinion, the decision in Anderson and the approval of that decision in Semple depart from and are at odds with the statements of principle which are set out in Hume. In Semple the court was concerned with two separate but related questions arising from the charges. The first was whether the appellant, who with intent to bring about an abortion not only supplied but instigated the use of the materials which the pregnant woman used, could be made accessory to her use of the materials for the purpose of securing an abortion, and so could be guilty of the crime of attempt to procure abortion. The court held that he could, and no question arises as to the correctness of that decision. The second was whether a charge libelling only a belief in the mind of the panel that the woman was pregnant, so that what was done was done in that belief and with the intent to cause an abortion, disclosed a crime in the law of Scotland. The court held that it did not. I am bound to say that I do not find the distinction between the two cases logical or easy to understand. On the one hand the court held that a crime of attempt was committed notwithstanding that it might have been impossible in fact to complete the crime because the Crown did not have to prove that the means offered to the pregnant woman and used by her at the instigation of the accused, could procure an abortion in the woman. On the other hand the court held that no crime had been committed by either man or woman because, whether the means were or were not able to secure abortion, and although the man in the belief that they could do so, supplied and instigated their use by a woman whom he believed to be pregnant, and the woman used them in those same beliefs, it was impossible to bring about an abortion as the woman was not in fact pregnant. But it seems to me that the two essential qualities which Hume identifies as necessary to make an attempt punishable are present, namely the vicious will or wicked purpose coupled to acts which advance to the point of constituting all that the man and the woman meant and expected to do for the perpetration of the crime which was their purpose. It was providentially defeated by the fact, unknown to both, that there was no pregnancy, just as, in Lamont, the intended theft was defeated by the fact that unknown to the intending thief the pocket was empty. In all of the cases the principle is the same but the necessity of punishing each may not be the same: but as the advocate-depute observed, that is a matter for the prosecutor to determine.

I consider that the reasoning leading to the decision in the case of Anderson so far as it determined what were the limits of the crime of attempt in our law, and the approval of that decision in Semple, is flawed. The decision in Anderson as to whether the crime of attempt had been relevantly libelled was made to turn upon the question whether the crime which was purposed by the accused could be physically accomplished despite the fact that what the accused had done had been done in pursuance of the final act of her criminal resolution. But Hume was clear that a criminal attempt was committed in circumstances where the accused had already done the act or a part of the act by which he meant and expected to perpetrate his crime, although the perpetration of the crime as purposed was providentially interrupted or defeated (which is no more than saying that some fortuitous circumstance prevented it from being committed). In such a case the court is concerned to examine the actions of the accused along with the purpose with which the accused acted and the state of his mind in the sense of his understanding of the circumstances as he believed them to exist at the time of so acting. If his actions were directed by a particular criminal purpose and have advanced to the point where he meant and expected that crime to have been perpetrated, or at least perpetration of that crime to have begun, it avails the accused nothing to claim that by chance he did not achieve what he deliberately set out to achieve and thought that he was achieving or had achieved.

Like Sheriff Gordon in his Criminal Law (2nd edn) at p 196, I find the distinction which at times has been attempted to be made between ‘factual’ and ‘legal’ impossibility, unjustifiable in principle for the reasons which he there sets out. But I would reserve my opinion on whether in a case where a crime can only be committed if a person is within a certain class of person, such as licensees, that is to say that the accused has to have a specified personal capacity which is required to be libelled as a part of the charge, it is relevant to libel an attempt to commit such a crime by one who merely believes himself to be within that class. Since these are more likely to be offences created by statute, the question may turn upon the provisions of the particular statute. It is sufficient to say that there is no such restriction to a specified class in the offence created by the provisions of the Misuse of Drugs Act with which this appeal is concerned.

In the course of the debate reference was made to decision in other jurisdictions and in particular to decisions in England. But the law of attempt in England is now defined in statute, as a result of which sec 19 has been amended so far as it applies in England. I do not find it helpful to review the decisions cited except to say that amongst others we were referred to the judgment of Murphy J in the Australian case of Britten v Alpogut. I fully agree with Murphy J that if in a statute the word ‘attempt’ is used in its common law sense, to say that the only possible attempt of which the accused could have been guilty would be an attempt to do that which is forbidden by the legislature, is to beg the question. As he said (at p 934): ‘if the evil intent of the actor can make a sufficiently proximate though objectively innocent act criminal, so as to amount to an attempt, it would seem irrelevant to have to go on to see whether the attempt could or would have succeeded. At common law, if the intent was to commit a recognised and not an imagined crime, and the act done was not merely preparatory but sufficiently proximate, then at that stage an attempt to commit the recognised crime has been committed, and it seems to me it is not necessary to go further’.

In my opinion, what was there said is entirely consistent with our common law in relation to what constitutes an attempt and I am content to adopt the statement as a proper statement of our law on the matter. It is entirely in accord with the law which was applied in recent cases in this court, eg Burns v Allan, Strachan v HM Advocate and Heywood v Reid. In Britten v Alpogut the court held that to prove the statutory crime of attempting to import prohibited imports, namely cannabis, into Australia, the Crown must prove that the accused at all material times intended to import something which was a matter of law a prohibited import and known by him to be so. The court went on to hold that if the Crown also proved sufficiently proximate acts to constitute the actus reus and to manifest the intention to import a prohibited import, then there was established all that was required to constitute the crime of attempting to import cannabis and it was not to the point that what was in fact imported was another substance which was not a prohibited import. By parity of reasoning I consider that in the present case if the Crown prove that the accused took possession of the tablets, that in doing so he believed them to be a controlled drug and that throughout his actings in taking possession of the tablets he manifested the intention of possessing them in order to supply them as controlled drugs to another or others, that is sufficient in our law to constitute an attempt to commit the offence prohibited by sec 5(3) of the Misuse of Drugs Act 1971 and hence an offence in terms of sec 19 of the Act.

Accordingly I would refuse the appeal.

LORD JOHNSTON —This case raises an important question of principle, namely whether a person can be convicted of attempting to commit a crime, the performance of which is factually impossible at the time that the attempt is made. The complaint avers as follows: [his Lordship quoted the terms of the charge set out supra and continued:]

The particular facts are not material to the present question, notwithstanding that this is concerned with controlled drugs under the Misuse of Drugs Act 1971. Strictly speaking the crime of attempt is libelled under sec 19 of that Act, but in my opinion the principle applies equally to attempts to commit crimes both at common law and statute, and nothing turns on sec 19. The matter has been the subject of much academic comment internationally, but there is little authority in Scotland bar some discussion in Hume and the problem is compounded by apparent inconsistencies between certain decisions of this court of long standing, viz HM Advocate v Semple and Lamont v Strathern.

The case of Semple was concerned with various charges relating to alleged procurement of abortions. Insofar as the charges averred that the so-called victim was pregnant no problem arose, but in relation to charges 6 and 7 no such averment was made and the gravamen of the charge was the committing of various acts in relation to the woman in question with intent to procure an abortion. The charges were not therefore to be construed as an allegation of attempt, but rather of the commission of facts with a certain intent. This presumably arose by reason of the existence of a case HM Advocate v Anderson where a single judge held that a charge of procuring or attempting to procure an abortion was irrelevant unless the Crown averred that the woman in question was pregnant. All three judges agreed that charges 6 and 7 were irrelevant since they did not constitute a crime known to the law of Scotland inasmuch that they simply averred what would be otherwise lawful acts with a certain intent, and that could not categorise those acts as such as unlawful. It has to be said on the face of it that that approach was probably correct, but in reaching their conclusion the court appears to have agreed with or enshrined Anderson as correct where it was not necessary nor essential for the decision that they should so do. In Lamont the court construed a complaint averring the insertion by the accused of his hand into the pocket of the complainer with intent to steal as amounting to attempted theft and accordingly as a relevant charge, even although the pocket was empty. At the bottom of p 37 onwards Lord Sands, in obvious reference to Anderson, appears on one view to accept the proposition that an essential condition of the crime of attempting to procure an abortion is that the woman is pregnant, albeit distinguishing it from the case under consideration where it was held that there was no essential condition that the pocket should contain anything capable of being stolen. Again therefore these observations are not essential to the decision, but the two cases taken together can certainly create the impression that the law of Scotland recognises certain cases where an attempt to achieve the impossible cannot constitute a crime. It was this issue that was referred to this court by reason of the existing cases.

The debate was wide ranging in both substance and geography in terms of the authorities reviewed, but at the end of the day turned on a fairly narrow question which makes a review of the foreign authorities unnecessary, albeit there are some helpful observations in some of them.

The essential proposition for counsel for the appellant, who was careful in making it not to suggest that he was seeking a general rule, was that in certain instances a proposed crime contained certain essential facts or fact without the presence of which by averment no relevant charge of attempt could be laid. In these cases, said counsel, the three ingredients of an attempted crime as a matter of relevancy were criminal intent, an overt act manifesting such intent and the existence of the fact or facts essential to the constitution of the crime if it were complete. Many examples were given in the course of the debate to highlight the position, but counsel concentrated on such matters as in relation to bigamy, the need in fact for the man still to be married, in rape, the need for the victim to be a woman and, in the present case, the existence of actual drugs which admittedly was not the case on the face of the complaint. The fact that the accused held a mistaken belief, on these matters negated attempt to commit a crime. Counsel distanced himself from such examples as shooting a person already dead or indeed the facts in Lamont, arguing he need not go so far as to address those issues as they might well be capable of being relevantly regarded as an attempted crime achieving no result by reason of the actual factual situation.

In reply the advocate depute concentrated primarily upon the assertion that to attempt a crime when the necessary intent was present did not cease to be criminal simply because, in the end result, what was sought could not be achieved. If that was too absolute a proposition, then he submitted at least it should be the general position, admitting only exceptions in particular cases of which this was not one. Such exceptions he hinted could be the abortion cases or the bigamy situation, but this was very much his alternative position. He urged us to disapprove such parts of Semple and Lamont as suggested that the non-existence of essential facts in certain cases precluded an attempt to commit the crime in question.

Against that background the question for us is, in my opinion, capable of clear resolution on principle.

In the first place, however, insofar that Semple or Lord Sands in Lamont acknowledge, albeit unnecessarily for the substance of the decision in each case, that the existence of an essential condition as a matter of fact may preclude the attempting of crime, those dicta require to be disapproved and I am in total agreement with your Lordships in this respect.

In my opinion in any case where the Crown allege an attempt to commit a crime the essential ingredients are the necessary criminal intent and actings manifesting that attempt. An attempted crime is constituted either when the accused has embarked sufficiently along the train of events intrinsic to its commission before being interrupted so as to enable it to be reasonably concluded that the crime was being physically attempted in fact, or when all the necessary acts essential to the completion of the crime have been committed upon the mistaken belief inextricably bound up with the criminal intent that the crime was being achieved. These two aspects in my opinion are wholly separate. Where all the factual ingredients of the commission of the crime are completed in the sense of, for example in an abortion case, administering the relevant potions, or in a bigamy case embarking on the second marriage, whether the crime is to be regarded as complete or attempted turns entirely upon the accused's state of mind, in the sense of identifying what he believes he has achieved. A mistaken belief as to the existence of a fact essential to the completed crime does not prevent an attempt from being duly constituted. It will never be more than an attempt but in my opinion it equally could not be less than that. What may thus be a perfectly lawful act in isolation when coupled with the necessary criminal intent, may constitute an attempted crime. Because the first wife is in fact dead, the second marriage is in fact not unlawful but the accused can still be guilty of attempted bigamy if he thinks that his wife is still alive. Furthermore in principle the law would recognise that an attempted rape of a transvestite is a relevant charge if it is averred that the accused held the mistaken belief that the victim was a woman. It has to be recognised that the discretion given to the Lord Advocate as to whether to prosecute makes it highly unlikely that such a case could ever be brought but that does not detract from the principle.

By definition, an attempted crime exists either when the exercise is factually attempted and fails in a physical sense, ie shooting and missing the intended victim, or when the intended result is completed by act but is not in fact achieved by reason of factual impossibility, always assuming the necessary intent under the guise of a mistaken belief as to the reality is present in the mind of the accused. I do not subscribe to the view that there are any crimes where an essential fact has in fact to exist to constitute an attempt to commit that crime. Accordingly while I cannot accept the reasoning that leads Lord Sands to his conclusion in Lamont, the conclusion must be correct.

Having regard to the view that I have reached, examination of authorities abroad adds nothing to the point. It seems to me that the matter can be decided as an issue of first principles supported, albeit somewhat obliquely, by Hume i, 27–30, subject to the qualification that where the learned author refers to a ‘wrongful’ act, that phrase must be deemed to include what would otherwise be a lawful act becoming wrongful in the context of attempt because of the intent that accompanies it. It also must follows that if charges 6 and 7 in Semple had been charged as attempt they would in my opinion have been relevant.

For these reasons I do not consider the existence of real drugs in the present case is essential to the crime of attempt so long as the Crown, as it does, offers to prove that the appellant believed that he was taking possession of controlled drugs. By so taking possession he completes the attempt which remains the crime which, in my opinion, is relevantly charged in this case.

For these reasons, and the much more detailed reasons in the opinion of the Lord Justice-Clerk, I would refuse the appeal.