Moral Culpability in Criminal Law Focus on Intent Over Outcome

‘A person who tries to cause a prohibited harm and fails is, in terms of moral culpability, not materially different from the person who tries and succeeds: the difference in outcome is determined by chance rather than by choice, and … the criminal law should focus on culpability rather than on results.’

Using this quote, evaluate whether the current law on criminal attempts strikes the correct balance with regards to ‘culpability’ in the criminalisation of attempts.

If we take a look at the 17th century English law, the courts of England laid specific emphasis on the result so attained by the commission of act that in today’s law would be termed as ‘criminal attempt’ and punishable under law. For instance, say ‘A’ fires a gun shot at ‘B’ with a clear warning to kill ‘B’. ‘B’ falls to the ground and escapes the bullet uninjured. As per 17th century law of England ‘A’s attempt to kill ‘B’ would not be punishable under law since the purpose of firing the bullet with intention to kill was not fully achieved. It was only after the case of Rex v. Scofield, Cald. 397 (1784) that English common law inducted the attempt to incomplete criminal act within the purview of culpability and recognised such acts as a ‘criminal offence’ punishable under law. The generic principle applied across all major nations of today’s times as to the criminalisation of attempts lays specific emphasis on factors such as intent, age and the mindful capacity of the person making criminal attempt which forms the basis for moral obligation for any legal institution to enforce a civilised state and moral conduct not violative of human rights. The notion behind holding attempt as a criminal act lies by the belief that the act was causing either (i) damage or (ii) danger to damage.

As per the general principle, there are four successive stage to commission of a crime: (i) Intention, (ii) preparation, (iii) attempt, (iv) the actual commission of the crime. However, the criminal liability leading to prosecution only arises from the third stage onwards since it implies putting into action the intent and the preparation or the method of carrying out the crime. There is no punishment for mere preparedness as still right sense may prevail or certain outer factors may deviate a person from proceeding further in order to actually commit the crime. The word ‘attempt’ as described by Chief Justice Cockburn says ‘clearly conveys with it the idea that if the attempt had succeeded, the offence charged would have been committed’. Again, by the definition, assertion is laid on the fact that the outcome of the attempt is more of a matter of chance rather that choice.

In general, the law of crimes deals with attempt in two manners; they are on the one hand attempt in crimes that are treated as equivalent to commission of the crime itself such as any crime against the state or against the head of states whereas in other cases attempt and commission of the offence have different legal implications such as murder, robbery or rape etc.

In order for an act to qualify within the purview of ‘attempt’ and to hold the person culpable or responsible under the law liable for prosecution is based on the factors that differentiates an act from mere preparedness. However, it is to be noted that the element of intent to commit the crime is present in both the cases. Therefore, in order to ascertain that the act is a mere preparation or an actual attempt the law lays down certain tests, they are:

Proximity Test: for an act to be held as an attempt the act so long done must be sufficiently near to the accomplishment of the final aim. Here, the weight lies on how much the act remains to be completed rather what has been completed (Commonwealth v. Hamel, 2010).

Probable Distance Test (time for repentance): As per this rule, the basis for culpability or rather the lack of it to be considered attempt the analysis is over the fact that whether the person by his own accord opts to drop the commission of a crime and has not in all probability exceeded the limit from which onwards the person will not desist from committing the crime himself or may only do so upon interference by some law imposing authority.

Res Ipsa Loquitur Test (the thing speaks for itself), (USLegal.com, 2010): As per this principle, the relation needs to be drawn between direct relation of the offence and the preparedness required to have come to conclusion that an attempt was made without any reasonable doubt. Here, the motive behind the whole act is immaterial and need not be ascertained, only the immediate preparedness needs to be ascertained for execution of the crime (Hamiel v. Wisconsin, 2010).

Impossibility Test: As per this principle, the affected entity or the factor upon which the crime is committed is of no consideration in terms of the fact that such occurrence is possible or not. If the act was proceeded with the crime is said to have been attempted. This again lays stress on the fact that had the factor been present the result would have been as per the intention, preparedness and as per the attempt made for the purpose of the crime.

To conclude, the present statutory provision governing attempts and its degree of culpability to the extent of it being a criminal offence is as per Section 1(1) of the Criminal Attempts Act, 1981 and is left to be analysed by the courts of law on the basis of the abovementioned tests which can be viewed as drawback in itself as it is limiting on the power of law enforcing executives such as the Police and also fails to suggest any defence at all available.

2. While analysing the facts of the abovementioned case and the incidents thereof, the first consideration and the legal course of action pertaining to the first incident regarding Rizza being intoxicated under the influence of alcohol and drugs and she barging into her friend Kath’s house. First of all, the incidents leading to her being charged with a crime clearly lacks intent. In my view the first defence Rizza could avail is that of accident and subsequently that of self-defence as per which despite she having knowledge of the intoxicant influence she is under there is clear lack of intent to cause harm to anybody. As for the circumstances provided, lack of intent can also be ascertained by the fact that there is no mention of either any malicious intent and also following the incident of both Kath and Sasha being injured renders Rizza upset.

Herein consider the persons she has ended up harming, Kath who is her friend, and Sasha, Kath’s girlfriend. Kath being Rizza’s friend she only catches up with him. She is of the intention of joining in with her friend, Kath and to Kath’s house. Though as the circumstances suggest she barged into the house under the influence of the intoxicants she only accidentally ends up pushing Kath which led to Kath suffering a head injury. In the circumstances, herein there is clear lack of causing any hurt of any nature nor is there any presence of weapon meant to cause harm. The Queen’s Court held intention as one of the primary ingredients to prosecute a case under reckless provision of Section 20 of the Offences Against the Person Act, 1861, the prosecution needs to prove that there being a clear intention to commit the crime. Herein, as already stated there is clear lack of committing any crime. Further, the bench held that for further analysis into the presence of the intention or the mens rea the factor present at the scene of crime can be a major catalyst is the weapon used for the purpose of commission of crime. Moving on, as a result of Kath suffering the injury, Kath’s girlfriend Sasha in a state of shock and commotion though reaches out and yells at Rizza to calm the situation only leads to scaring Rizza who is still under the influence of intoxication and unable to clearly judge the situation. Under the influence of her intoxication Rizza perceives Sasha as a threat believing that she has a gun and may end up shooting her. As a result of which Rizza kicks Sasha in the abdomen causing her internal bleeding. The act was that of a self-defence under English Common Law. Rizza perceived Sasha to be a threat to her own being and thus ended up causing hurt to her. In the light of the circumstances, again holding various judgments there are two factual circumstances that shall avail defence to Rizza.

The factor claiming defence is again non-presence or the use of any weapon by Rizza. Clearly, her mode of attack was by way of her physical being, i.e., using her legs to kick and ward off Sasha from shooting her. Moreover, Rizza under apprehension could not have waited for Sasha to attack her first in order to exercise her right to self-defence. The validity of such principle can be ascertained by the Modern law in R v Beckford (1988) 1 AC 130. Secondly, the act of kicking in self-defence can be justified owing to the kind of presumed threat Rizza was under. Herein, the threat to Rizza was that of her own life hence in order to defend herself the best available mechanism as per her own judgment was to kick Sasha and deflect her from presumably taking the gun out and firing at Rizza. In R v Owino (1996) 2 Cr. App. R. 128 at 134 the Court has held that in a plea for claiming right to self-defence the act carried out must satisfy the notion that the step taken was reasonable and necessary in the circumstances to ward off or deflect the threat or the attack. The burden of proof however lies on the accused.

As regards, Rizza meeting with an incident at an evening in a restaurant, in my view she can avail of a defence under insanity. For the purpose of proving insanity a closer look needs to be given to the symptoms of Epilepsy first, they are: temporary confusion, starting spell, uncontrollable jerking movements of the arms and the legs, loss of consciousness and awareness, and other psychic symptoms. Therefore, Rizza’s condition is so worsened that she ultimately even forgets to take her medicines and as a result of which she suffered epileptic fit suddenly while being at the restaurant. As regards, the kicking of the waiter was again a non-voluntary act as in an epileptic fit a person’s body goes through intense seizure causing severe trembling of the entire body and also high amount of involuntary and uncontrollable jerking movements of the arms and legs. Moreover, the act of kicking further raises question as to presence of any intent to cause harm as in the case of an epileptic fit a person is not in the right state of mind to be fit enough to think of doing anything such as strategically hitting someone in the head to cause grievous hurt.

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