Criminal Attempts

Criminal Attempts

1. Introductory Facts

   • Rationale
     • Punish the Criminal Mind
       • Deterrence
       • Public Protection
       • Criminal Mind = Criminal Liability
   • History
     • Attempts have long been criminalised in the Common Law
       • R v White (1910): Mother-Son-Heartattack-Son Poison-Not Linked-Attempted Murder.
     • Judges have struggled with the AR of attempts. (Deciding how close D had to get to the full offence.)
     • Judges have developed a number of tests in Common Law (JP)
       • E.g: The Proximity Test.
         • Eagleton
         • Robinson: Jeweller-Hid Stock-Tied Self Up-Called Police-D Found+Confessed-Quashed-Not Rang Insurance-Acts Not Immediately Concerned With Substantive Offence.
     • Couldn't be convicted of attempting the impossible. REFORM REQUIRED!
       • Criminal Attempts Act (1981)
   • Definition of Attempts
     • S.1(1) Criminal Attempts Act (1981)
     • An act which is more than merely preparatory towards commission of the full offence.
   • Sentencing
     • S.4(1) CAA (1981)
     • An attempt will be punishable to the same extent as the substantive offence.

2. Actus Reus of Attempts

   • S.1(1) Criminal Attempts Act (1981)
   • An act which is more than merely preparatory towards commission of the full offence.
     • MTMP not explained further!
       • S.4(3) CAA (1981): Matter for the Jury to decide
       • As Juries (at trial) lead to inconsistent decisions, on Appeal, Judges have tried to explain MTMP further, and give guidance.
         • More Than Merely Preparatory
           • R v Jones: D-Sawn off Shotgun-Entered V's Car-Pointed Gun-D Got Gun-V=Attempted Murder
           • Boyle and Boyle: D's-Door-Locks Broken-Attempted Burglary-CA: Full Offence=D's Entering Building, Any attempt to Gain Access=Attempt
           • AG's Reference: Man-Girl-Shed-Dragged-Attempted Rape-Argued Against-Flaccid Penis-Dragging into Shed=MTMP
         • Less Than Merely Preparatory
           • R v Geddes: Man-Boys Toilet-School-Weapons For Kidnap.
             • MTMP = Moving from Preparation and Planning to Implementation and Execution.
           • R v Gullefer: Greyhound Race-Dog Loosing-Man-Track-Void Race-Not "Embarked on the Crime Proper"-Not Started Get Money Back.
             • MTMP = When D has Embarked on the Crime Proper
           • R v Campbell: Man-Post Office-Outside-Note+Fake Gun-Rob-Changed Mind-Quashed-NO MTMP

3. Criminal Attempts Act (1981)

4. Mens Rea of Attempts

   • Common Law - Pre-1981
     • R v Mohan: Ruled "Intent is an essential ingredient for attempts." "Recklessness is never sufficient for MR."
   • Now S.1(1) CAA (1981)
     • Mens Rea is usually the same as the full substantive offence. However:
       • Recklessness as a consequence is never sufficient as MR for attempts
         • Millard v Vernon: D-Football Stand-Attempted Criminal Damage-CA-Recklessness (as a consequence) is not sufficient MR for attempted crimes, specific intention is required.
         • Recklessness may be sufficient for 1 part of the offence.
           • AG's Reference
           • Recklessness as to circumstances may be sufficient for attempted rape.
             • R v Khan and Khan
             • D can be liable if they intended to have sexual intercourse but were "reckless as to consent."
       • MR for Attempted Murder
         • R v Whybrow: Showed "Intention to Kill" rather than "Intention to Kill or Cause GBH" as it is for Murder.
         • MR is more onerous for Attempt than Full Offence.
     • Follows CL position

5. Attempting the Impossible

   • Legal Impossibility
     • D intends to commit an offence, but is apprehended. However, the offence in question is not actually an offence. It is Legal!
     • CAA (1981) does not deal with Legal Impossibilities.
       • R v Taaffe: HoL held D could not be guilty of attempting a crime which was legally impossible
         • AO2: Defence was the Smugglers Defence which left a gaping lacuna in the Law of Attempts.
   • Factual Impossibility.
     • D intends to commit an offence, but it is found that it is factually impossible to complete the full offence.
     • Pre-1981
       • Haughton v Smith: You cannot be convicted of attempting a factually impossible offence.
     • S.1(2) CAA (1981)
       • It is possible convict a defendant who has attempted a factually impossible offence.
       • Anderton v Ryan: HoL failed to interpret the new statute properly as D was quashed of the offence.
         • R v Shivpuri: HoL used Practice Statement (1966) for the 1st time in a criminal trial to overrule the earlier decision in Anderton v Ryan to convict of a factually impossible offence.