Define: Factual Impossibility

Factual Impossibility
Factual Impossibility
Quick Summary of Factual Impossibility

Factual impossibility occurs when an act cannot be achieved due to physical or factual constraints. In criminal law, attempting to pick an empty pocket serves as an example of factual impossibility. Similarly, in contract law, if a contractor is unable to finish a construction project because the building site has been destroyed, it exemplifies factual impossibility. These instances demonstrate that factual impossibility serves as a defence in both criminal and contract law when the act cannot be accomplished due to physical or factual limitations.

What is the dictionary definition of Factual Impossibility?
Dictionary Definition of Factual Impossibility

Factual impossibility refers to the inability of something to occur or be accomplished due to a specific fact or circumstance. For instance, attempting to steal from an empty pocket is an example of the factual impossibility of committing a crime. It’s important to note that factual impossibility does not serve as a defence for attempted crimes. In contract law, factual impossibility can be used to justify non-performance if the subject or means of performance have deteriorated, been destroyed, are no longer available, if a law now prohibits performance, or if death or illness prevents performance.

Full Definition Of Factual Impossibility

Factual impossibility is a defence in criminal law that arises when a defendant’s intended actions, if carried out as planned, would not constitute a crime because the facts are not as the defendant believed them to be. This concept is often contrasted with legal impossibility, where the actions, even if completed, would not be illegal. This overview aims to dissect the notion of factual impossibility, its applications, and its implications within the British legal system.

Definition and Scope

Factual impossibility occurs when a defendant is mistaken about a fact or facts that make the commission of a crime impossible. For example, if a person attempts to pick an empty pocket, they cannot be guilty of theft because there is nothing to steal. The key aspect is that the impossibility arises from an external fact, not from a misunderstanding of the law.

Historical Context

The defence of factual impossibility has evolved, reflecting shifts in judicial attitudes towards attempts and culpability. Historically, the distinction between factual and legal impossibility was more pronounced, with courts often reluctant to convict individuals for failed attempts due to factual impossibility. However, modern legal thought tends to focus more on the intent and actions of the defendant, rather than the external circumstances.

Distinguishing Factual from Legal Impossibility

Understanding the difference between factual and legal impossibility is crucial. Legal impossibility refers to situations where the intended act, even if completed, would not constitute a crime under the law. For instance, if someone believes it is illegal to do something legal, and they attempt to do it, they cannot be guilty of attempting an illegal act because no law was broken.

In contrast, factual impossibility involves a mistaken belief about a fact that renders the intended crime impossible. For example, attempting to kill someone already dead would be factually impossible because the target of the crime no longer exists.

Judicial Approach in the UK

The British legal system has generally moved away from recognizing factual impossibility as a valid defence. The focus has shifted towards the defendant’s intent and actions. The rationale is that the culpability of the defendant should be judged based on their intentions and steps taken towards committing the crime, rather than the factual impossibility of completing it.

Key Case Law

Several cases illustrate the judicial approach to factual impossibility in the UK:

  • R v Shivpuri (1987): This landmark case involved an individual who believed he was handling illegal drugs, which turned out to be harmless vegetable matter. The House of Lords ruled that factual impossibility was not a defence to a charge of attempting to commit an offence. The intent and belief of the defendant were sufficient to uphold the conviction.
  • R v Jones (2007): In this case, the defendant attempted to shoot someone with a gun that was later found to be inoperable. The court held that the impossibility of firing the gun did not absolve the defendant of the attempt to commit murder, emphasizing the intent and preparatory actions.

Comparative Analysis

The treatment of factual impossibility varies across different jurisdictions. In the United States, for instance, there is a more nuanced approach with some states recognizing factual impossibility as a defence under specific circumstances. This comparative analysis can offer insights into how British law might evolve or be interpreted in future cases.

Theoretical Underpinnings

The theoretical justification for not accepting factual impossibility as a defence lies in the principle of culpability. The law aims to punish those who demonstrate a clear intent to commit a crime, irrespective of the actual outcome. This approach is grounded in deterrence theory, which posits that penalizing attempts can prevent the commission of crimes by dissuading individuals from engaging in criminal behaviour.

Policy Considerations

Policy arguments against recognizing factual impossibility as a defence include the potential for creating loopholes that could be exploited by defendants. Recognizing such a defence might encourage individuals to engage in criminal activities with a calculated risk that factual errors might absolve them of liability.

Conversely, arguments in favour of recognizing factual impossibility suggest that punishing individuals for impossible attempts could be seen as unjust, particularly in cases where the impossibility was not apparent to the defendant. This touches upon the broader debate about the balance between justice and deterrence in criminal law.

Practical Implications

For legal practitioners, the non-recognition of factual impossibility as a defence underscores the importance of focusing on the defendant’s intent and actions. Defence strategies must therefore emphasize mitigating factors, such as lack of intent or duress, rather than arguing the impossibility of the crime.

Legislative Framework

In the UK, the legislative framework around attempts and impossibility is primarily governed by the Criminal Attempts Act 1981. This Act defines the scope of what constitutes an attempt and provides the legal basis for prosecuting attempted crimes. Under this Act, the focus is placed on the intent and actions of the defendant, aligning with the judicial approach of disregarding factual impossibility as a defence.


Factual impossibility represents a complex area of criminal law, where the focus on intent and culpability often override the factual circumstances that make the completion of the crime impossible. The British legal system’s approach, shaped by key case law and legislative provisions, underscores a commitment to penalizing attempts based on the defendant’s intent rather than the success of their actions. This overview has provided a comprehensive examination of factual impossibility, highlighting its implications and the underlying legal principles that guide judicial reasoning in the UK.

Factual Impossibility FAQ'S

Factual impossibility refers to a situation where an individual attempts to commit a crime but is unable to complete it due to circumstances beyond their control. Although the intended crime was impossible to achieve, the individual’s intent and actions are still considered criminal.

Yes, in many jurisdictions, a person can be charged with a crime even if their attempt was factually impossible. The law focuses on the individual’s intent and their actions leading up to the attempted crime, rather than the actual outcome.

Factual impossibility occurs when the intended crime is impossible to commit due to external factors, while legal impossibility refers to situations where the intended act is not a crime under the law. Legal impossibility is generally not considered a valid defence, whereas factual impossibility may be considered as a defence in some cases.

Yes, factual impossibility can be used as a defence in some cases. If the defendant can prove that their actions were factually impossible to result in the intended crime, it may negate the required criminal intent and lead to a dismissal or reduction of charges.

To successfully claim factual impossibility as a defence, the defendant usually needs to demonstrate that their actions were objectively incapable of achieving the intended crime. Mere subjective belief or incompetence is generally not sufficient to establish factual impossibility.

Factual impossibility can potentially be used as a defence for any crime, but its applicability may vary depending on the specific circumstances and jurisdiction. It is advisable to consult with a criminal defence attorney to determine the viability of using factual impossibility as a defence in a particular case.

Yes, there have been several notable court cases where factual impossibility was raised as a defence. One such case is United States v. Thomas, where the court held that factual impossibility is not a valid defence to a charge of attempted possession of child pornography.

In most jurisdictions, a person cannot be convicted of both attempted and completed crimes if their attempt was factually impossible. The law generally recognizes that the individual’s actions, even if criminal in nature, did not result in the commission of the intended crime.

Factual impossibility is primarily a defence used in criminal cases. In civil cases, the focus is more on the harm caused and the liability of the parties involved, rather than the intent to commit a crime.

No, factual impossibility is distinct from abandonment or withdrawal from a criminal attempt. Factual impossibility relates to the objective impossibility of achieving the intended crime, while abandonment or withdrawal refers to the voluntary cessation of criminal activity before its completion.

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This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.

This glossary post was last updated: 8th June 2024.

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