Attempt

Attempt

1. Actus Reus

   • Must look at the actus reus element of every offence
   • "More than merely preparatory"
     • Jones 1990
       • There may be some acts left to perform before an offence is committed but pointing a gun at the victim was deemed more than merely preparatory
     • Tosti 1997
       • By fiddling with the padlock the men were trying to comitt a full offence
     • White 1910
       • Although the woman died of unrelated causes, by putting the poison in her drink, D was attempting to kill her
     • AG Ref no1 of 1992
       • Although he was found not guilty, if tried in present day pulling his trousers down would be seen as more than merely preparatory
   • Merely preparatory
     • Campbell 1990
       • It was said he was still preparing, would have had to enter the shop in order to be 'more than merely preparatory'
     • Gullefer 1987
       • There was no offence as he had not "embarked on the crime proper"
     • Geddes 1996
       • Not guilty as he hadn't tried to commit the crime
         • Bad outcome, he had done everything but take the children

2. Meaning

   • s.1 Criminal Attempts Act
     • Intent
     • More than merely preparatory

3. Old Test

   • Three tests to determine if an attempt had taken place. The judge had to decide which test to use.
   • Series of Acts
     • One in a series of acts which, if not stopped would lead to the commission of an offence
       • Davey v Lee 1968
       • Boyle and Boyle 1986
   • Before attempts were defined in the Criminal Attempts Act 1981 common law tests were used
   • Proximity
     • How close to the full offence were their actions?
       • Were D's acts so 'immediately connected' to the actus reus of the offence as to justify liability for attempt?
         • DPP v Stonehouse 1978
   • Rubicon
     • The last acts - no going back
     • D crossed the line into criminality and passed the point of no return
       • Robinson 1915

4. Mens Rea

   • Intention
     • Easom 1971
       • Cannot be guilty of an attempt if they do not have the necessary intention to commit the full offence
     • Husseyn
       • Loitering near a van does not prove intent
     • AG Ref Nos 1&2 of 1979
       • Conditional intent is sufficient
   • Recklessness
     • Not usually sufficient
       • Exception
         • AG Ref No3 of 1992
           • Needed intent to damage property but recklessness as to whether life had been endangered was sufficient
           • Was found not guilty but, if tried today, would be guilty
       • Millard and Vernon 1987
   • Murder
     • Can't have intended GBH for attempted murder

5. Impossible crimes

   • Before the Criminal Attempts Act
     • If crime was physically or legally impossible there was no offence
   • After Criminal Attempts Act
     • Factual Impossibility
       • A person may be guilty of attempting to commit an offence even though the facts state the offence is impossible
         • S.1(2)
     • Legal Impossibility
       • s.1(3)
         • A) Apart from the subsection, a person's intention would not have been regarded as sufficient in order to commit an offence
         • B) If facts of the case had been as D believed them to be, their intention would have been sufficient to be guilty of an attempt
           • Will be regarded as having intent to commit the offence
   • Anderton v Ryan
     • Video player not stolen so D's acts are 'innocent'
   • R v Shivpuri
     • Overruled Anderton v Ryan
     • Any attempt to commit an offence carries liability if D:
       • Intended to carry out the substantial offence
       • Did an act that was more than merely preparatory
       • Even though completion was impossible

6. AO2 Comments

   • Problems caused by having several tests at common law
   • The rationale behind the law of attempts as a need to stop criminal behaviour before harm is caused
   • The desire by Parliament to make this an offence decided by a jury using their comm sense
   • The need to balance this against intervention which is too early and could run the risk of punishing people for mere contemplation of minimal activity of a crime
   • The need to give police the opportunity to stop criminals before an offence is committed